Suit Challenging Hebrew National Hot Dog Advertising Is Back In State Court

American Jewish World reports at length on the July 31 Minnesota state trial court hearing on a motion to dismiss in a long-running lawsuit against the manufacturer of Hebrew National hot dogs.  The suit, which alleges that ConAgra Food's advertising was deceptive because some of the meat in the hot dogs did not meet the proper standards for kosher slaughter, was remanded to state court by the U.S. 8th Circuit Court of Appeals last April. (See prior posting.) Prior decisions in the case have focused on whether the 1st Amendment bars the court from determining proper standards of kosher slaughter, and on whether any particular consumer can prove that the hot dogs he or she ate contained non-kosher meat.  At the conclusion of the hearing, the court asked the lawyers to file briefs on the issue of standing to bring the suit under consumer protection laws.

Bankruptcy Court, Applying Ministerial Exception, Rejects Defrocked Priest's Claim

In In re Archdiocese of Milwaukee, (ED WI Bankr., Aug. 6, 2014), a federal bankruptcy court held that the ministerial exception doctrine requires dismissal of a claim by by a defrocked Catholic priest for back pay and related amounts.  Marvin Thomas Knighton filed the claim in the bankruptcy reorganization of the Milwaukee Archdiocese, alleging that he was removed from the ministry after a canonical trial even though a state court jury found him not guilty of second degree sexual assault of a child. The court said in part:

[T]he First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them.... Accordingly, this Court cannot second-guess whether the Debtor followed applicable law - whether Canon Law or federal employment discrimination law - in terminating or failing to compensate Mr. Knighton.

The court also found that the claim was barred by the statute of limitations and additionally rejected Knighton's suggestions of racial discrimination.

U.S. Drops Supplies To Yazidi Stranded In Iraq After Islamic State Attack

U.S. cargo planes yesterday dropped supplies to some 40,000 members of the Yazidi sect in Iraq who have fled the town of Sinjar after it was taken over by the insurgent group Islamic State (known variously as IS, ISIS or ISIL). The Yazidi follow an ancient religion that is related to Zoroastrianism. More than 100,000 Yazidi have fled northern Iraqi towns taken over by IS, and some 40,000 of them remain stranded on Mount Sinjar.  In a statement last night (full text), President Obama said:

ISIL forces ... have called for the systematic destruction of the entire Yezidi people, which would constitute genocide. 

Fox News and the Los Angeles Times have additional details.

In a related development, Reuters reports that on Wednesday an air strike by the Iraqi government targeted a Sharia court set up in the city of Mosul by IS. Sixty people were killed, including the judge.

Suit Against FLDS Towns Over Utility Denials Is Settled

Last March, an Arizona federal court jury awarded damages of nearly $5.3 million to Ronald and Jinjer Cooke who sued claiming religious discrimination after towns controlled by the Fundamentalist Church of Jesus Christ of Latter Day Saints in 2008 denied them access to water, sewers and electricity for the home they were building. They claimed that Hilldale, Utah and Colorado City, Arizona refused them utility service because they are not FLDS members. (See prior posting.) Reuters reported yesterday that the litigation has now been settled and the court has dismissed the case. The financial terms of the settlement were not disclosed. The couple now has utility services from the cities.

6th Circuit Hears Oral Arguments In Same-Sex Marriage Cases

The U.S. 6th Circuit Court of Appeals yesterday heard oral arguments in same-sex marriage cases from 4 states.  Here are links to the audio of the argument in each case:

• Michigan: DeBoer v. Snyder (Oral argument)
• Ohio: Obergefell v. Himes; Henry v. Himes (Oral argument).
• Kentucky: Bourke v. Beshar; Love v. Beshar (Oral argument).
• Tennessee: Tanco v. Haslem (Oral argument).

Detroit Free Press and MLive reported on the oral arguments.

Opponents of Houston's Equal Rights Ordinance Sue After Referendum Petitions Rejected

In May, Houston, Texas City Council passed an Equal Rights Ordinance that attracted significant opposition because of its ban on discrimination on the basis of sexual orientation or gender identity. (See prior posting.) Opponents have been circulating petitions to get a repeal referendum on the ballot. On Monday, the city ruled that there were insufficient valid signatures on the petitions.  As reported by the Houston Chronicle, strict city rules disqualify entire pages of signatures when those collecting them are not registered voters or did not themselves sign the petition.  On Tuesday, opponents of the ordinance filed suit in state court challenging the procedure used to disqualify signatures-- city attorneys eliminated numerous names after the City Secretary had initially determined that there were sufficient signatures. The lawsuit sought an immediate injunction against enforcement of the Equal Rights Ordinance. In response, the city has removed the lawsuit to federal court on the ground that one paragraph of the complaint raises a federal claim of interference with the right to petition the government for a redress of grievances. Houston Chronicle says that opponents of the Ordinance see this as a delaying tactic to prevent a state court injunction from being issued.

Rules Limiting Area Around State Fair Where Preacher Can Speak Upheld

In Powell v. Noble, (SD IA, Aug. 5, 2014), an Iowa federal district court in a 40-page opinion refused to issue a preliminary injunction in a Christian preacher's challenge to rules barring his proselytizing in areas around the Iowa State Fair where he might impede traffic flow. The court held preliminarily that the entire Fairgrounds are a limited public forum, at least  during the days the Fair is held.  Restrictions on activities that could impede traffic flow are reasonable. However the court did enjoin defendants from arresting plaintiff (or threatening arrest) solely for protected speech in locations where Defendants conceded there was not interference with traffic flow. Des Moines Register reports on the decision.

Utah Files First Cert Petition In Same-Sex Marriage Challenges

The state of Utah-- acting 6 weeks before its deadline-- yesterday became the first to file a petition for certiorari with the U.S. Supreme Court in the growing number of decisions striking down state bans on same sex-marriage. The petition (full text) in Herbert v. Kitchen urges Supreme Court review of the 10th Circuit's 2-1 decision (see prior posting), saying in part:

This case presents an immensely important question: whether the United States Constitution compels states to adopt a single marriage policy that every individual is allowed “to marry the person of their choice.”... The Tenth Circuit said yes and struck down Utah’s definition—statutorily enacted and adopted into the Utah Constitution by two-thirds of voters in a statewide referendum—that marriage is only between a man and a woman. That ruling deprives Utah citizens of the “fundamental right” to “act through a lawful electoral process,” ... and ignores that the Constitution says nothing about how states must define marriage.

Salt Lake Tribune reports on the filing, and SCOTUS Blog has more background.

NYC Pre-Kindergarten Funding Requires Religious Schools To Draw Fine Church-State Lines

The New York Times reported Monday on the fine church-state lines being drawn by religious schools hosting Mayor de Blasio's government-funded pre-kindergarten programs. Brief guidelines issued to the schools allow the teaching of culture, but not religion. Religious texts may be presented objectively as part of a secular program of instruction.  The Times describes the accommodation reached by some schools:

The biblical story of Noah’s Ark will be taught, without mention of who told Noah to build it. Challah, the Jewish bread eaten on the Sabbath, will be baked, but no blessings said over it. Some crucifixes will be removed, but others left hanging.

(See prior related posting.) [Thanks to Scott Mange for the lead.]

District Court Says Town of Greece Decision Does Not Cover Invocations Offered Directly By County Board Members

After the U.S. Supreme Court decided the Town of Greece case last May, a number of local governments that had been enjoined by lower courts from opening council meetings with sectarian prayers petitioned lower courts to dissolve or modify the injunctions.  One of these was Pittsylvania County, Virginia. However, in Hudson v. Pittsylvania County, Virginia, (WD VA, Aug. 4, 2014), the federal district court held that while it was willing to modify its prior injunction, it would not dissolve it:

... unlike in Town of Greece, where invited clergy and laypersons offered the invocations, the Board members themselves led the prayers in Pittsylvania County. Thus, in contrast to Town of Greece, where the town government had no role in determining the content of the opening invocations at its board meetings, the government of Pittsylvania County itself, embodied in its elected Board members, dictated the content of the prayers opening official Board meetings. Established as it was by the Pittsylvania County government, that content was consistently grounded in the tenets of one faith. Further, because the Pittsylvania County Board members themselves served as exclusive prayer providers, persons of other faith traditions had no opportunity to offer invocations.

While the court was willing to modify the injunction to make it consistent with Town of Greece, it concluded it did not have jurisdiction to do so until the 4th Circuit to which the case had been appealed granted at least a limited remand. AP reports on the decision.

Trial Court Invalidates Florida's Ban On Recognizing Same-Sex Civil Unions

Tampa Bay Times reports that in a ruling on Monday, a Broward County, Florida trial court judge invalidated the 2008 amendment to the Florida Constitution that prohibits recognition of any "legal union that is treated as marriage or the substantial equivalent thereof." The ruling comes in a case in which plaintiff  Heather Brassner asked the Florida court to dissolve her same-sex Vermont civil union. The court concluded that it could not do so without first ruling on the constitutionality of Florida's same-sex marriage ban. After ruling, the court immediately stayed the order, pending appeal. This is the third Florida trial court ruling since July invalidating Florida's same-sex marriage ban. (See prior posting.) Yesterday's opinion in Brassner v. Lade does not appear to be available online yet, but here is the full text of plaintiff's motion for a declaratory judgment and injunctive relief.

Judge Refuses To Recuse Himself On Charges That Jewish Charitable Activities Bias Him In Immigration Trial

The Chicago Sun-Times reports on a decision last week by Michigan federal district court judge Paul Borman in which he angrily refused to recuse himself in the trial of a Palestinian woman charged with hiding her terrorism-related past in coming to the U.S. and applying for U.S. citizenship. Defendant Rasmieh Odeh failed to disclose the fact that she had spent 10 years in prison in Israel after being convicted of taking part in two terrorist bombings in Jerusalem. Her lawyers claim that Judge Borman's long history of support and fund-raising for the Detroit Jewish Federation and his organizing trips to Israel bias him and likely gave him extra-judicial information relevant to defendant's claim that she was beaten and raped while in Israeli custody.  In United States v. Odeh, (ED MI, July 31, 2014), Judge Borman wrote:

My relationship to my faith and my heritage through my activity on behalf of the Detroit Jewish Federation, reads nothing like the innuendo and rank speculation that infects Defendant’s motion.

Report Focuses On Expensive Homes of U.S. Catholic Archbishops

CNN yesterday published an investigative report titled "The Lavish Homes of American Archbishops." The investigation found that 10 of the 34 active U.S. Catholic archbishops live in buildings worth more than $1 million.

Documents Reveal Current IRS Procedures On Church Tax Inquiries

In 2012, the Internal Revenue Service temporarily suspended tax audits of churches accused of violating Section 501(c)(3)'s ban on political participation, pending final adoption of IRS rule changes to clarify which high level Treasury official has authority to make a determination under IRC Sec. 7611 that there are reasonable grounds to begin a church tax inquiry. (See prior posting.) The proposed rules have never been adopted in final form, but as was reported last month, in settling a lawsuit challenging the suspension of church tax inquiries, the IRS assured the Freedom From Religion Foundation that it has adopted procedures for reviewing, evaluating and determining whether to initiate church investigations.

As pointed out yesterday by The Blaze, from a letter attached to the FFRF's Memorandum In Support of Motion To Dismiss, a good deal can be learned of the practices which the IRS now uses. A decision to begin a church tax inquiry is "made by the Commissioner, TEGE, either directly or as concurrence to the determination made by the Director, Exempt Organizations." Complaints about violations of the political intervention ban are evaluated by the Review of Operations unit, and then by the Political Activities Referral Committee.  That process has led to the conclusion that 99 churches merit a high priority examination for activities since 2010.

Dispute Over Authority To Fire Minister Dismissed Under Ecclesiastical Abstention Doctrine

In Anderson v. Truelove, (TX App., July 31, 2014), a Texas appellate court invoked the ecclesiastical abstention doctrine to dismiss a lawsuit brought by Jamall Anderson, the minister of a small 16-member church.  At issue was whether two members who claimed to be a majority of the trustees of the church could dismiss Anderson as minister for taking church funds in order to pay expenses for his sick mother. Two meetings of members-- called without the required days advance notice-- had agreed to forgive Anderson and retain him. The court held that it could not apply the neutral principles approach to decide the dispute because the church's bylaws do not contain any provisions regarding removal of the minister.

Recent Articles of Interest

From SSRN:

• Klaus Prettner & Holger Strulik, It's a Sin - Contraceptive Use, Religious Beliefs, and Long-Run Economic Development, (Discussion Papers on Business and Economics, University of Southern Denmark, 11/2014).
• David Nelken, Rules of Forgiveness and the Role of Narratives in Talmudic Law, (in Alison Diduck, Noam Peleg and Helen Reece eds. Law and Michael Freeman, Brill, 2014 (shortened version)).
• Benjamin Boyd, Take Your Guns to Church: The Second Amendment and Church Autonomy, (Liberty University Law Review, Volume 8, Number 3 (Summer 2014). 
• Erin Morrow Hawley, The Jurisdictional Question in Hobby Lobby, (Yale Law Journal Forum (Fall 2014)).
• Peter Jenkins, Absolutist, Pragmatist and Realist Approaches to Research Ethics in the Digital Humanities: The Case of the Schneerson Collection, (Cultural Research in the Context of Digital Humanities, (Saint Petersburg: Asterion Press, 2013)).
• Christopher McCrudden, Faith-Based Non-Governmental Organizations in the Public Square, (June 30, 2014).
• Rayan Haykal, Acceptability of Civil Marriage in a Multidenominational Society: Results of an Empirical Survey in Lebanon, (July 11, 2014).

Recent Prisoner Free Exercise Cases

In Dulaney v. Hollingsworth, 2014 U.S. Dist. LEXIS 102220 (D NJ, July 28, 2014), a New Jersey federal district court held that habeas corpus is not a proper route to challenge a prison's treatment of the Hebrew Israelite religion as being part of plaintiff's Messianic Sabbatarian religion.

In Stokley v. Dismas Charities, Inc., 2014 U.S. Dist. LEXIS 102234 (WD KY, July 25, 2014), a Kentucky federal district court allowed an inmate to proceed with his claim that the parole board required him to attend a drug and alcohol treatment program at a Catholic-sponsored facility that imposed religion on its residents.

Mitchell v. Indiana Department of Corrections, 2014 U.S. Dist. LEXIS 102418 (SD IN, July 28, 2014), an Indiana federal district court, while dismissing a number of claims, allowed a Rastafarin inmate to proceed with his claim against a corrections officer who allegedly forced him to cut his dreadlocks.

In Bobbitt v. Whitener, 2014 U.S. Dist. LEXIS 102678 (WD NC, July 28, 2014), a North Carolina federal district court dismissed a complaint by an inmate that authorities seized and would not return his Moorish Science Temple of America literature after he refused to sign a Personal Property Inventory Form.

In Mendell v. Kline, 2014 U.S. Dist. LEXIS 103322 (SD IL, July 28, 2014), an Illinois federal magistrate judge permitted a Wiccan inmate to proceed, but only in his action for a declaratory judgment, with his complaint that he was denied the sue of Tarot cards.

In Lyons v. Nevada ex rel. Ortiz, 2014 U.S. Dist. LEXIS 104902 (D NV, July 31, 2014), a Nevada federal district court dismissed a Muslim inmate's claim that inmates were charged $1.25 to participate in the Eid al-Fitr feast and that Muslim inmates were yelled at while picking up their Ramadan meals.

In Oliver v. Harner, 2014 U.S. Dist. LEXIS 105437 (SD IL, Aug. 1, 2014), an Illinois federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 105438, July 10, 2014) and refused to issue a preliminary injunction to a Hebrew Israelite inmate who complained that he received only a vegan, and not a kosher, diet, while Caucasians similarly situated received kosher meals.

Davis v. Abercrombie, 2014 U.S. Dist. LEXIS 105006 (D HI, July 31, 2014), is another in a line of numerous decisions in a suit by Native Hawaiian inmates who complain they were denied daily outdoor group worship and access to various sacred items. In this decision the court granted summary judgment to defendants on various claims, but permitted plaintiffs to proceed with claims for compensatory and nominal damages for free exercise and RLUIPA violations.

In Shabazz v. Robinson, 2014 U.S. Dist. LEXIS 105370 (WD VA, July 31, 2014), a Virginia federal district court dismissed a Muslim inmate's challenge to prison rules that allow inmates to grow beards for religious reasons only in segregated confinement, and not if they want to be housed in the general population.

Parties' Agreement To Dismiss Challenge on IRS Church Audit Rules Trumps Intervenors' Objections

As previously reported, last month the Freedom From Religion Foundation agreed to drop its suit against the Internal Revenue Service after the IRS eliminated its blanket policy of not enforcing Section 501(c)(3) restrictions on political activity against churches. Now the court has granted the parties' joint motion to dismiss the case, over objections of a pastor who had intervened in the case.  In Freedom from Religion Foundation v. Koskinen, (WD WI, Aug. 1, 2014), Holy Cross Anglican Church and Father Patrick Malone had been permitted to intervene to argue that any IRS policy of non-enforcement against churches was required by the Establishment Clause and RFRA. (Background and documents.) In now dismissing the case without prejudice, the court concluded that the dismissal would not prejudice the intervenors. Meanwhile Alliance Defending Freedom has filed a Freedom of Information Act request (full text) seeking copies of any new IRS policies or procedures on church audits.

Uganda's Constitutional Court Invalidates Anti-Gay Law Because of Lack of Parliamentary Quorum

Uganda's Constitutional Court yesterday struck down the controversial anti-homosexuality law passed by the country's Parliament last December and signed into law by Ugandan President Yoweri Museveni in February. The Court avoided the substantive constitutional issue, instead finding procedural defects in the bill's enactment. As reported by AP:

The panel of five judges on the East African country's Constitutional Court said the speaker of parliament acted illegally when she allowed a vote on the measure despite at least three objections - including from the country's prime minister - over a lack of a quorum when the bill was passed on Dec. 20.

The bill provided for punishment up to life in prison for engaging in homosexual relationships, and also called for prison terms for promoting homosexuality. The World Bank and some European countries have withheld aid because of the law.

According to BuzzFeed, the courtroom yesterday became something of a circus as anti-LGBT pastor Martin Ssempa prayed loudly and argued with petitioners in the case as those in the courtroom sat through a 3-hour recess that preceded the Court's handing down its decision.

It is not clear what the practical effect of the ruling will be. There have been no actual arrests under the law, but there has been a 20-fold increase in incidents of anti-LGBT harassment. Also a colonial-era law criminalizing sex acts "against the order of nature" was unaffected by yesterday's ruling.

Can State-Sponsored Terror Victims Satisfy Judgments By Attaching Internet Country Code TLDs?

BNA Electronic Commerce & Law Report [subscription required] this week reported on a fascinating legal issue facing the D.C. federal district court in connection with suits by five victims of state-sponsored terrorism brought against Iran, Syria and North Korea. The victims have all obtained default judgments against the defendant countries, and are now seeking to attach assets in the United States to satisfy the judgments. Among the assets they have identified are the Internet top-level domains assigned to each of the countries.  So the parties issued writs of attachment against the Internet Corporation for Assigned Names and Numbers ("ICANN") purporting to attach the .IR, .SY and KP country code TLDs. Earlier this week, ICANN filed a Motions to Quash (full text) arguing, among other things, that the ccTLDs are not property subject to attachment and are not owned by the countries to which they are assigned.  They also argue that forced redelegation of the ccTLDs would destroy their value.

Restaurant's "Praying In Public" Discount Raises Questions

Inquisitr and HLN reported yesterday on a Winston-Salem, North Carolina restaurant that offers a 15% "Praying in Public" discount.  Apparently Mary's Gourmet Diner awards the discount to diners when a member of the wait staff sees them pray over their food. The story has gone viral, and some raise the question of whether the practice violates the religious discrimination provisions of the 1964 Civil Rights Act.

UPDATE: CBS Charlotte reported on Aug. 7 that the diner has stopped its discount program after the Freedom From Religion Foundation threatened to sue.

Court Upholds New Jersey's Reparative Therapy Ban For Second Time

 In Doe v. Christie, (D NJ, July 31, 2014), a New Jersey federal district court for the second time (see prior posting) rejected constitutional challenges to New Jersey's law barring mental health professionals from treating minors using Sexual Orientation Change Efforts. This challenge was brought by parents seeking reparative therapy for their 15-year old son.  The court said in part:

A3371 does not implicate Plaintiffs’ free speech rights  because the statute (i) does not regulate speech, directly or indirectly, but rather only regulates a mental health procedure performed by licensed counselors or therapists, and (ii) does not prevent the receipt of information regarding SOCE outside  the counseling or therapy setting. Accordingly, Plaintiffs’ claim that the statute violates their right to receive information is  without merit.....

The court also rejected free exercise and parental rights challenges to the law. NBC10 reports on the decision.

Meanwhile, as reported by BuzzFeed yesterday, 9 former leaders of the ex-gay movement signed a letter stating that conversion therapy is both ineffective and harmful.

Congress Passes Two Bills On International Religious Freedom

On Tuesday, Congress sent S.653, the Near East and South Central Asia Religious Freedom Act of 2014, to the President for his signature.  The bill provides that  the President may appoint a Special Envoy to Promote Religious Freedom of Religious Minorities in the Near East and South Central Asia. (Legislative history.)

On Tuesday the Senate gave final passage to H.R. 4028. (Legislative history). The bill amends Sec. 2(a)(4) of the International Religious Freedom Act to add desecration of cemeteries to the list of violations of religious freedom that Congress finds of concern.

Faith Leaders Arrested In Anti-Deportation Demonstration At White House

Huffington Post reports that yesterday over 100 faith leaders and immigration activists were arrested and charged with blocking passage after they refused to disperse from the sidewalk in front of the White House where they were protesting the daily deportations of undocumented immigrants. The protest began a series of anti-deportation events in Washington, DC, culminating in a march and rally on Saturday.

Vatican Orders Removal of Abusive Priest Who Had Continued Career In Paraguay

In a move against the practice of sending priests accused of abuse to other countries, on July 14 the Vatican ordered the diocese of Ciudad del Este in Paraguay to remove Carlos Urrutigoity from his position as vicar general of the diocese.  According to an RNS report yesterday, in 2002, Urrutigoity and another priest were suspended by the Bishop of the Diocese of Scranton, Pennsylvania after being accused of sexually molesting students at a Catholic school there.  The diocese settled a lawsuit in the case for over $400,000. Urrutigoity however was transferred to Canada and then to Paraguay. Earlier this year, Scranton Bishop Joseph C. Bambera publicly complained about Urrutigoity’s career advancement in the Church in Paraguay. The Vatican sent a cardinal and archbishop to Paraguay from July 21-26 to investigate further. They ordered Paraguayan Bishop Rogelio Ricardo Livieres Plano to stop ordaining priests.

North Carolina Can Distribute School Voucher Funds Ahead of Hearing Challenging the Program

A state trial court judge in North Carolina has refused to issue an injunction to prevent the State Educational Assistance Authority from distributing $10 million under a state school voucher plan while a challenge to it is pending. The 2400 students who will receive funds from the oversubscribed program were chosen by a lottery. According to the Raleigh News & Observer, the state moved up by a month the date for distributing funds under the Opportunity Scholarship program to beat any ruling by the court.  The distribution is scheduled for Aug. 15, while a hearing on the challenge to the voucher law is set for Aug. 19.  In February, the trial court had issued a temporary injunction to prevent the voucher program from taking effect while the challenge was being litigated. The state Supreme Court in May stayed the trial court's temporary injunction to permit the lottery to move ahead.  At that time, however, the trial court hearing on the challenge was scheduled to take place before the actual distribution date for funds. (See prior posting.)

Even Congratulating The Pope Has Fallen Victim To Politics

The Hill reported yesterday that the seemingly routine H. Res. 440, a House Resolution that would congratulate Pope Francis on his election last March and recognize his inspirational statements and actions, has fallen victim to politics. The Resolution has not emerged from the House Foreign Affairs Committee, and only 19 of its 221 co-sponsors are Republicans. Apparently at least some Republicans see the Pope as too liberal.  The Resolution was intended to reinforce House Speaker John Boehner's invitation to the Pope to address a joint session of Congress. (See prior posting.) The Pope plans to visit the United States in September 2015. (See prior posting.)

California Appeals Court Upholds Dismissal of Police Officer's Religious Discrimination Claim

In Longmire v. City of Oakland, (CA App., July 28, 2014), a California appellate court upheld a trial court's dismissal of a religious discrimination suit filed by a police sergeant who claimed that an 8-day suspension imposed on him was based on his superior's perception that he was a Black Muslim. Plaintiff, Derwin Longmire, had been the center of a controversy over his handling of the investigation of the murder of a prominent African-American journalist who was allegedly killed because he was writing an unfavorable story about a Black Muslim bakery. Longmire was not disciplined for that investigation, but was for his handling of ten other cases. The appeals court held that Longmire failed to show that he was perceived to be a Black Muslim or that the reasons given for his suspension were pretextual. San Jose Mercury News reports on the decision.

State Department Updates List of "Countries of Particular Concern" Under International Religious Freedom Act

As previously reported, yesterday the State Department issued its 2013 International Religious Freedom Report. Somewhat buried in the announcement and Secretary Kerry's remarks was the revelation that the State Department at the same time updated its list of "Countries of Particular Concern" (CPC).  The countries on the revised list are Burma, China, Eritrea, Iran, North Korea, Sudan, Saudi Arabia, Turkmenistan, and Uzbekistan.  All of these except for Turkmenistan had been on last year's list.

The 1968 International Religious Freedom Act, Sec. 402(b), calls for the President to make CPC designations annually for countries that have "engaged in or tolerated particularly severe violations of religious freedom." The Act also calls for the President to take various actions against such countries.  Secretary Kerry yesterday, in announcing the list, said:

I want to emphasize: This effort isn’t about naming countries to lists in order to make us feel somehow that we’ve spoken the truth. I want our CPC designations to be grounded in plans, action that help to change the reality on the ground and actually help people. That’s why we are committed to working with governments as partners to help them ensure full respect for the human rights of all of their citizens.

In a press release today, the U.S. Commission on International Religious Freedom commended the State Department for making its CPC designations at the same time that it released its International Religious Freedom Report-- something that the Department has not always done. USCIRF also welcomed the addition of Turkmenistan to the list, noting that it had recommended the designation since 2004. The press release did not mention that USCIRF this year also recommended seven other countries-- Egypt, Iraq, Nigeria, Pakistan, Syria, Tajikistan and Vietnam-- should receive a similar designation. (See prior posting.)

2nd Circuit: Cross At Ground Zero Can Stay In Museum

In American Atheists, Inc. v. Port Authority of New York and New Jersey, (2d Cir., July 28, 2014), the U.S. 2nd Circuit Court of Appeals rejected a challenge by American Atheists to the display in the National September 11 Museum of the 17-foot high "Cross at Ground Zero"-- steel beams in the shape of a cross retrieved from the World Trade Center debris after 9-11. The court summarized its holding as follows:

1. Displaying The Cross at Ground Zero in the National September 11 Museum does not violate the Establishment Clause because:

a. the stated purpose of displaying The Cross at Ground Zero to tell the story of how some people used faith to cope with the tragedy is genuine, and an objective observer would understand the purpose of the display to be secular;

b.   an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled “Finding Meaning at Ground Zero”; the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context; and

c.   there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.

2. In the absence of any Establishment Clause violation or any evidence of discriminatory animus toward atheists, the Museum did not deny equal protection by displaying The Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.

CNN reported on the decision.

Satanic Temple Says Its Followers Can Claim Exemption From Informed Consent Abortion Laws Under Hobby Lobby Principles

The Satanic Temple announced yesterday that it was launching a campaign against "informed consent" laws that require abortion providers to furnish women certain informational material when they seek an abortion.  Citing the Supreme Court's recent Hobby Lobby decision, the group argues that women can claim an religiously-based exemption from the informational requirements. It makes available through its website a letter that women may download and present to their physician asking for an exemption. The Temple says that it believes the body is subject to one's will alone, and that the informational statutes require biased and false information to be presented to discourage abortions. It explains:

the Supreme Court has decided that religious beliefs are so sacrosanct that they can even trump scientific fact. This was made clear when they allowed Hobby Lobby to claim certain contraceptives were abortifacients, when in fact they are not. Because of the respect the Court has given to religious beliefs, and the fact that our our beliefs are based on best available knowledge, we expect that our belief in the illegitimacy of state ­mandated ‘informational’ material is enough to exempt us, and those who hold our beliefs, from having to receive them.

Huffington Post has more details.

4th Circuit Invalidates Virginia's Same-Sex Marriage Ban

Continuing an unbroken string of victories for marriage equality proponents, the U.S. 4th Circuit Court of Appeals yesterday, in a 2-1 decision, struck down Virginia's ban on same-sex marriage. This is the second federal appeals court to rule on same-sex marriage bans.  In Bostic v. Schaefer, (4th Cir., July 28, 2014), the majority held:

the Virginia Marriage Laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples’ lawful out-of-state marriages. 

The court added:

We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.

As reported by the New York Times, the appeal to the 4th Circuit was carried forward by two court clerks after Virginia's attorney general refused to appeal the district court's decision striking down Virginia's bans. They are expected to seek a stay of the court's decision pending an en banc appeal or a petition for certiorari to the Supreme Court.

Court Permits Church To Move Ahead on RLUIPA Claims

In Church of Our Savior v. City of Jacksonville,(MD FL, July 18, 2014), a Florida federal district court permitted a church to move ahead with its claims that denial of a conditional use permit to build a church on property in a residential area violates various provisions of RLUIPA, and that the city's Land Development Code violates RLUIPA's equal terms provision by allowing secular assemblies in residentially-zoned areas without a conditional use permit. [Thanks to Daniel Dalton for the lead.]

International Religious Freedom Report for 2013 Released

The State Department today released its International Religious Freedom Report for 2013. The Report reviews the religious freedom records of nearly 200 countries. Secretary of State Kerry spoke extensively at the roll out of the Report. (Full text of remarks.) Assistant Secretary, Bureau of Democracy, Human Rights, and Labor Tom Malinowski followed up and answered reporters' questions. (Full text.)

The Report's Executive Summary reads in part:

In 2013, the world witnessed the largest displacement of religious communities in recent memory. In almost every corner of the globe, millions of Christians, Muslims, Hindus, and others representing a range of faiths were forced from their homes on account of their religious beliefs. Out of fear or by force, entire neighborhoods are emptying of residents. Communities are disappearing from their traditional and historic homes and dispersing across the geographic map. In conflict zones, in particular, this mass displacement has become a pernicious norm.

Obama To Nominate Rabbi David Saperstein As Ambassador-At-Large For International Religious Freedom

The White House today announced President Obama's intention to nominate Rabbi David Saperstein to be Ambassador-at-Large for International Religious Freedom.  Here is Rabbi Saperstein's biography as set out in the White House press release:

Rabbi David Nathan Saperstein is Director and Counsel of the Religious Action Center of Reform Judaism, where he has served since 1974.  He is also an Adjunct Professor of Law at Georgetown University Law Center, where he teaches First Amendment Church-State Law and Jewish Law.  Rabbi Saperstein serves on a number of boards, including The Leadership Conference on Civil and Human Rights and the National Religious Partnership for the Environment.  He was a Member of the President’s Advisory Council on Faith-Based and Neighborhood Partnerships from 2010 to 2011.  Rabbi Saperstein was a member of the U.S. Commission on International Religious Freedom from 1999 to 2001, serving as its first Chair from 1999 to 2000.  Rabbi Saperstein received a B.A. from Cornell University, an M.H.L. from Hebrew Union College, and a J.D. from American University.

Rabbi Saperstein will replace Suzan Johnson Cook who resigned last October. (See prior posting.)

UPDATE: According to a July 29 White House release, Rabbi Saperstein's nomination has now been formally submitted to the Senate.

Eid al Fitr Begins Today; White House Issues Greetings

Today is the beginning of Eid al Fitr, marking the end of Ramadan. (Background from Huffington Post). The New York Times reports that today's start of the Eid was confirmed last night by the area's Roohat-e-Hilal Committee, or Moon-Sighting Committee. Yesterday President Obama issued a statement (full text) wishing "Muslims in the United States and around the world a blessed and joyous celebration."

Second Florida Trial Court Invalidates State's Same-Sex Marriage Ban; Stays Order

In Pareto v. Ruvin, (FL Cir. Ct., July 25, 2014), a Florida state trial court in Miami-Dade County held that Florida's ban on same-sex marriage violates the 14th Amendment's due process and equal protection clauses.  While ordering the Miami-Dade County clerk of courts to modify its marriage license forms to encompass same-sex marriages, the court stayed its order pending expected appeals. The court excluded from its order the provision of Florida law barring recognition of same-sex marriages performed in other jurisdictions, presumably because none of the plaintiffs before the court had been married elsewhere. Earlier this month, a Monroe County Florida trial court also struck down Florida's ban on same-sex marriage. (See prior posting.) AP reports on the Miami-Dade County decision.

Church Challenges Town's Zoning Law

Liberty Institute announced the filing last week of a RLUIPA challenge to the zoning ordinance of the town of Bayview, Texas. The complaint (full text) in Cornerstone Church by the Bay v. Town of Bayview, Texas, (SD TX, filed 7/22/2014), alleges that the town's zoning ordinance violates RLUIPA and the Texas Religious Freedom Restoration Act, as well as federal and state constitutional protections, by barring all religious institutions in the town's only residential zone while allowing similarly situated non-religious institutions there. Cornerstone is seeking to operate a church and religious school on land that was donated to it.

Recent Articles of Interest

From SSRN:

• Sankalp Jain, Religion & Its Role and Function in International Law, (July 5, 2014).
• John D. Inazu, A Confident Pluralism, (Southern California Law Review, 2015, Forthcoming).
• Thomas C. Berg, Foreword: Intellectual Property and Religious Thought, (University of St. Thomas Law Journal, Vol. 10, p. 579, 2014).
• Linda C. McClain, Can Religion Without God Lead to Religious Liberty Without Conflict?, (94 Boston University Law Review 1273 (2014)).
• Jaclyn L. Neo, What's in a Name? Malaysia's ‘Allah’ Controversy and the Judicial Intertwining of Islam with Ethnic Identity, (June 7, 2014).
• Paolo Davide Farah & Riccardo Tremolada, Desirability of Commodification of Intangible Cultural Heritage: The Unsatisfying Role of Intellectual Property Rights, (Transnational Dispute Management, Special Issue, Volume 11, Issue 2, March 2014).
• Elizabeth Varner, Protecting Cultural Heritage During Disasters: Prevention, Mitigation, and Response, (April 11, 2014). 6 Liason: J. of Civ.-Mil. Disaster Mgmt. & Human. Relief Collaborations 63 (2014)).
• Timothy Lindsey & Melissa Crouch, Cause Lawyers in Indonesia: A House Divided, Wisconsin International Law Journal, Vol. 31, No. 620, 2013. 

From SmartCILP and elsewhere:

• Shanmuga Kanesalingam, Monkey In a Wig: LoyarBurok, UndiMsia!, Public Interest Litigation and Beyond, 31 Wisconsin International Law Journal 586-619 (2013).
• Gila Stopler, The Challenge of Strong Religion In the Liberal State, 32 Boston University International Law Journal 411-447 (2014).
• Intellectual Property and Religious Thought. Foreword by Thomas C. Berg; articles by Paul J. Griffiths, Jeremy Stern, Bashar H. Malkawi, Audrey R. Chapman, Margo A. Bagley, Marco Fioretti, David W. Opderbeck, Alina Ng Boyte, Shubha Ghosh and Roberta Rosenthal Kwall. 10 University of St. Thomas Law Journal 579-843 (2013).
• Dr. Don M. Snider, COL (USA Ret) & Alexander P. Shine, Does the Army’s Culture Facilitate Integration, Character Development, and Trust in the Profession?, Strategic Studies Institute, April 2014.
• July/August 2014 issue of Church & State.
• Michael L. Gompertz, The Clergy Housing Allowance Exemption Is Unconstitutional, Tax Notes, July 21, 2014, pg. 315.

ISIS On Campaign To Destroy Religious Shrines In Iraq Hits Tomb of Jonah

The Wall Street Journal reported Friday on announced plans of the insurgent group Islamic State to destroy religious shrines and graves in Iraq.  Conservative Sunni doctrine prohibits the veneration of shrines or burial sites. Carrying out its goal, on Thursday in Mosul, the group blew up the Tomb of Jonah and the Nabi Younes Mosque in which it was housed. The Journal reports:

Though its population is predominantly Sunni, Mosul was a symbol of religious intermingling and tolerance in Iraq. Nineveh, the wider province, is a Assyrian Christian center dating back thousands of years. That Jonah's shrine was in a mosque was a proud reflection of that coexistence....

Recent Prisoner Free Exercise Cases

In Legate v. Stephens, 2014 U.S. Dist. LEXIS 98442 (SD TX, July 21, 2014), a Texas federal district court adopted a magistrate's recommendation and dismissed a complaint by a Native American inmate that he was not permitted to have long hair or a kouplock, smoke from a sacred pipe, and carry a medicine bag outside his cell.

In Germain v. Shearin, 2014 U.S. Dist. LEXIS 99159 (D MD, July 21, 2014), a Maryland federal district court refused to dismiss because of a genuine issue of material fact a Muslim inmate's complaint that in 2013 inmates observing the Ramadan fast did not receive sufficient calories in their meals.

In Heath v. Lewis, 2014 U.S. Dist. LEXIS 100809 (WD PA, July 24, 2014), a Pennsylvania federal magistrate judge dismissed as moot an inmate's complaint that he was denied Jewish reading material from the chaplaincy library, and also dismissed his claim regard kosher food.

President Signs Law Authorizing Huna Tlingits To Engage In Traditional Egg Harvests

The White House announced that yesterday President Obama signed H.R. 3110, the Huna Tlingit Traditional Gull Egg Use Act. The law authorizes the Interior Department to permit members of the Hoonah Indian Association to harvest eggs of glaucous-winged gulls twice a year in Alaska's Glacier Bay National Park.

Pope Francis To Visit U.S. In September 2015

Catholic News Service today reports that Pope Francis has accepted an invitation to visit the United States to attend the 2015 World Meeting of Families.  The announcement was made by Philadelphia Archbishop Charles J. Chaput.  The Meeting will be held in Philadelphia from Sept. 22-27, 2015. A Vatican spokesman said that the Pope is considering invitations to visit elsewhere in the U.S. as well as part of his trip, including possibly New York, the United Nations and Washington, DC. Official confirmation from the Vatican is not expected until six months before the planned trip.

In Britain, Theology Student's Unemployment Benefits Ended For Attending Communion Instead of Interview

Church Times today reports on a decision in Britain, upheld on appeal, to cut off the unemployment benefits of a theology student because he skipped a required interview to attend a Church service.  Graham Hodson was granted benefits when his student-related job ended. A month later he was ordered to have an interview with a Jobcentre Plus personal adviser. His request that the interview be moved a half-hour later so he could attend the weekly Book of Common Prayer Service was refused. He attended the Church service anyway and had his benefits terminated for failure to show up at his interview.  Administrative regulations excuse failure to appear at an interview only if it is for good cause, defined to include: "that the established customs and practices of the religion to which the person belongs prevented him attending on that day or at that time."  A First Tier Tribunal held that Hodson's actions did not fit the exception because attending Communion on Thursdays, rather than another day, was a mere preference, not an established practice and custom of the Church of England. An Upper Tier Tribunal upheld the decision on appeal because Hodson had said that he would make other arrangements to attend Communion if he were offered a full-time job.

Court Reaffirms Catholic Hospital's Plan Not Exempt From ERISA As" Church Plan"

In Rollins v. Dignity Health,(ND CA, July 22, 2014), a California federal district court reaffirmed its earlier holding that Dignity Health's retirement plan is not a "church plan" exempt from ERISA because the plan was not established by a church.  Granting a declaratory judgment, the court rejected Dignity's argument that there is a genuine dispute of fact as to whether the plan should be seen as having been established by several religious orders that controlled Dignity at the time the plan was created.  The holding in the class action lawsuit means that the Catholic health care system's pension plan is underfunded by $1.2 billion.  San Francisco Business Times reports on the decision.

$3.5 Million Belongs To Break-Away Episcopal Diocese

In Diocese of Quincy v. The Episcopal Church, (IL App., July 24, 2014), an Illinois state appellate court applied the "neutral principles" approach to hold that over $3.5 million in funds and title to a Diocesan House belong to the break-away Diocese of Quincy and were not held in trust for The Episcopal Church.  The court observed that the Episcopal Church's Dennis Canon applies to parish property, but not to property belonging to a diocese.

Microscope Technician Sues Over Firing For Creationist Research

CBS News reports on a state court lawsuit filed earlier this week by a former electron microscope technician in the Biology Department of California State University Northridge.  The complaint (full text) in Armitage v. Board of Trustees of the California State University, (CA Super. Ct., filed July  22, 2014), alleges that plaintiff Mark Armitage was terminated because of hostility to his research findings supporting the theory of creationism.  In 2012, Armitage participated in a dinosaur dig in Montana and discovered a large triceratops horn.  His microscopic examination of the horn revealed soft tissue, supporting his belief that dinosaurs roamed the planet no earlier than 4000 years ago and that the Earth is young.  Alleging religious discrimination and violation of academic freedom rights, Armitage's complaint asserts:

Plaintiff seeks to have his work published, not only as a means of career advancement, but because his work is a reflection of his religious identity.  He believes that part of the character of God is truth, and that by extension, God is the ultimate author of all truth.  Thus, making and disseminating scientific discoveries is part and parcel of how he exercises his religion.

Editor Fired For Anti-Gay Blog Post Files EEOC Religious Discrimination Claim

Yesterday, a complaint (full text) was filed with the EEOC by Bob Eschliman, former editor of the Newton (IA) Daily News.  As reported by the Des Moines Register, Eschliman was suspended and then fired by his newspaper's publisher after complaints that a posting on Eschliman's personal blog cast doubt on his ability to fairly cover issues involving gays.  The posting criticized a website-- the Queen James Bible-- that advertises a version of the Bible that edits verses relating to homosexuality to eliminate homophobic interpretations.  Eschliman, a member of the Christian Reformed Church, in his post mockingly said that "the LGBTQXYZ crowd and the Gaystapo" are attempting "to make their sinful nature right with God." Eschliman's EEOC complaint says that his post reflected his sincerely held religious beliefs, and contends:

There is no question that I was fired for holding and talking about my sincerely held religious beliefs on my personal blog during my off-duty time.... I would like to have obtained a religious accommodation for my sincerely held religious belief to share my Biblical view with the few family members and friends who read my blog. Shaw Media directly discriminated against me because of my religious beliefs and my identity as an evangelical Christian who believes in Holy Scripture and the Biblical view of marriage. Moreover, Shaw Media announced that... they would not hire or allow anyone to work at Shaw Media who holds religious beliefs similar to mine....

Charges of Fraudulent Fundraising for Jewish Religious and Charitable Organizations Settled In Civil Judgment

As reported by Courthouse News Service, New York's attorney general yesterday anounced the entry of a civil judgment settling charges in a charity fraud case against Yaakov Weingarten and his wife Rivka who raised funds for some 19 Jewish religious organizations and Israeli medical charities.  Eight of the charities existed in name only.  Weingarten siphoned off large amounts of the funds raised and used them for personal purposes.  In May, Weingarten pleaded guilty to tax fraud and paid $90,685 in restitution to New York state tax authorities. He was also sentenced to 5 years probation during which he is barred from any fundraising activity. In yesterday's civil judgment,  Weingarten and his wife were ordered to pay over $522,000. Of that, $360,000 will go to two legitimate Israeli charities that carry out the kind of medical services that Weingarten  purported to be raising funds to support. The order also permanently shuts down Weingarten's charitable operations.

US Congress, European Parliament Focus On Case of Meriam Ibrahim

Yesterday, a subcommittee of the House Foreign Affairs Committee held a hearing titled "The Troubling Case of Meriam Ibrahim." The hearing focused on the plight of a Sudanese Christian woman, married to a U.S. citizen, who was initially convicted of apostasy and sentenced to death by a Sudanese court, her subsequent release, and efforts of her family to come to the U.S.  (See prior posting.) A video of the hearing and the prepared statements of the four witnesses at the hearing are available from the Committee's website.

Meanwhile, last week the European Parliament passed a resolution (full text) condemning Ibrahim's detention and calling for legal reform.

UPDATE: On July 24, Ibrahim, on her way to the United States, stopped off at Rome where Pope Francis met privately with her, her husband and her two small children.  The Pope blessed Ibrahim as she held her baby in her arms. (HNGN).

Colorado Same-Sex Marriage Laws Invalidated With Only Limited Stay

A Colorado federal district court yesterday issued a preliminary injunction enjoining enforcement of Colorado's state constitutional and statutory provisions that deny same-sex couples the right to marry in Colorado and deny recognition of same-sex marriages performed elsewhere.  In Burns v. Hickenlooper, (D CO, July 23, 2014), the defendants (the governor, the attorney general and a county clerk) did not oppose entry of the injunction since the 10th Circuit in a case from Utah had already held same-sex marriage bans unconstitutional. (See prior posting,) Subsequently the 10th Circuit also invalidated Oklahoma's ban on same-sex marriages. (See prior posting.) Much of yesterday's opinion focused on the question of whether the court should stay its order while the Utah case moves forward on appeal.  The court refused, but instead merely granted a one-month stay in order for defendants to seek relief from the 10th Circuit.  In refusing a broader stay, the court the rejected the argument that U.S Supreme Court action summarily granting stays in other same-sex marriage litigation requires a similar stay here:

Based on the most recent stay, it appears to the Court that it may well be that a message is being sent by the Supreme Court. But this Court is not some modern day haruspex skilled in the art of divination. This Court cannot – and, more importantly, it will not – tell the people of Colorado that the access to this or any other fundamental right will be delayed because it “thinks” or “perceives” the subtle – or not so subtle – content of a message not directed to this case. The rule of law demands more.

Scotus Blog and AP report on the decision.  According to the Denver Post, Colorado attorney general John Suthers filed an appeal with the 10th Circuit an hour after the district court decision was handed down.

Church Split Can Be Adjudicated Using Neutral Principles of Law

In Rector, Wardens and Vestrymen of St. Mary of the Angels' Parish v. Anglican Church in America, (CA App., July 23, 2014), a California appellate court held that a dispute over who controls an Anglican parish, a majority of whose members favor reunification with the Catholic Church, can be resolved by applying neutral principles of law and without deciding ecclesiastical matters. According to the court:

At one point during the dispute, the ACA took disciplinary action against the Rector, Father Christopher P. Kelley, inhibiting him from performing any ecclesiastical duties, and ordering him to vacate the premises owned by St. Mary’s. The ACA appointed a new Rector, who then removed several members of the elected Vestry and appointed new members.

When Father Kelley refused to vacate the premises, the ACA ... filed a lawsuit against him.... Eventually, three more lawsuits were filed.... All of the lawsuits required resolution of one dispositive question: Who controls St. Mary’s?

....We conclude that the determination of who controls St. Mary’s depends upon the validity of an August 2012 vote by members of the Parish to disaffiliate from the ACA, and that the validity of that amendment can be determined by applying neutral principles of law. 

Suit Challenges City's Denial of Equal Public Space To Atheist

The ACLU today announced the filing of a lawsuit against the city of Warren, Michigan on behalf of an atheist who was refused space for a table in the atrium of city hall for a "reason station,"  even though the city has permitted a local pastor to operate a "prayer station" in the atrium since 2009.  The complaint (full text) in Marshall v. City of Warren, (ED MI, filed 7/23/2014), sets out free speech and establishment clause challenges based largely on the letter sent by the city's mayor denying plaintiff's request. The letter reads in part:

It is my understanding that you are affiliated with Freedom from Religion, a group that has objected to the Nativity Scene, the Prayer Station in the atrium and the Annual Day of Prayer in front of city hall.

All of these events are allowed because of the right to freedom of religion constitutional amendment. We cannot and will not restrict this right for any religion to use the atrium, as long as the activity is open to all religions. Freedom from Religion is not a religion. It has no tenets, no place of worship and no congregation. To my way of thinking, your group is strictly an anti-religion group intending to deprive all organized religions of their constitutional freedoms or at least discourage the practice of religion. The City of Warren cannot allow this. 

Also, I believe it is your group’s intention to disrupt those who participate in the Prayer Station which would also be a violation of the freedom of religion amendment.

Recent Prisoner Free Exercise Cases

In Chavis v. United States, 2014 U.S. Dist. LEXIS 96940 (D NJ, July 17, 2014), a New Jersey federal district court dismissed without prejudice a claim by an inmate that his free exercise rights were infringed when a correctional officer conducted a pat-down search of him in a "homosexual manner."

In Sharp v. Gay, 2014 U.S. Dist. LEXIS 97825 (D AZ, July 18, 2014), an Arizona federal district court, after a 3-day bench trial, held that a prison's policy allowing Native American inmates to obtain wood for sweat ceremonies only by in-kind donations from family or friends outside the prison violates RLUIPA. The court ordered prison officials to set up a group religious account to allow for inmate and outside financial contributions for the purchase and delivery of firewood. The court however rejected plaintiff's equal protection claim seeking an additional religious meeting time each week for Native Americans.

In Randolph v. Griffin, 2014 U.S. Dist. LEXIS 97369 (WD NY, July 16, 2014), a New York federal district court permitted a Jewish inmate to proceed with his claim that his free exercise rights were infringed when a correctional officer ordered him to remove his yarmulke indoors (including in his cell) and then permanently confiscated it.

AFP reports that in France on July 22, a court ruled that a prison need not furnish Muslim prisoners halal food, since they can obtain meals without pork or vegetarian meals, can purchase halal meat and recieve special meals during the main holidays.

Suit Seeks Return of Valuable Hebrew Bible Manuscript

On Monday, a suit was filed in federal district court in New York by the heirs of  David C. Arakie to obtain the return of a "priceless, ancient, handwritten set of the Five Books of Moses."  The complaint (full text) in Samuels v. Greenberg,  (ED NY, filed 7/21/2014), alleges that the Hebrew manuscript at issue-- an important resource for Biblical scholars-- was loaned by David Arakie to Zalmen Gurewicz for the purpose of academic study.  Some years later, both Arakie and Gurewicz died with the manuscript never having been returned to Arakie.  The manuscript is presently in the possession of defendants, Gurewicz's daughter and son-in-law, who say they found it in Gurewicz's suitcase. New York Daily News reports on the filing of the lawsuit.

Condolences On Death of Dan Markel, Legal Blog Innovator

All of us involved in the legal blogosphere send sincere condolences to the family of Dan Markel, founder of the groundbreaking PrawfsBlog. Prof. Markel, a Professor at Florida State University Law School, died Saturday from gunshot wounds, apparently the victim of a murder. (Tallahassee Democrat). TaxProf Blog has links to more information. Dan Markel's memory will without doubt remain as an inspiration to all who knew him.

Conservative Christian Groups Criticize New Executive Order

Some conservative Christian groups are speaking out against the Executive Order issued yesterday by President Obama (see prior posting) which bans employment discrimination on the basis of sexual orientation or gender identity by federal contractors, as well as by executive agencies. The Family Research Council in a press release yesterday said in part:

President Obama has ordered employers to put aside their principles, and practices in the name of political correctness. This level of coercion is nothing less than viewpoint blackmail that bullies into silence every contractor and subcontractor who has moral objections to homosexual behavior. This order gives activists a license to challenge their employers and, expose those employers to threats of costly legal proceedings and the potential of jeopardizing future contracts.

Religious faith is not simply a matter of intellectual affirmation but of active practice. A religious organization which is denied the power to require its employees to conduct their lives in a way consistent with the teachings of their faith is an organization which is being denied the right to exercise its religion, period. People with deeply held convictions regarding the morality of certain types of sexual behavior should not be bound by the dictates of President Obama's agenda.

Daily Caller has more on the reactions of religious groups.

Puerto Rico Supreme Court Upholds Subpoenas Against Church In Part

In Bishop of the Catholic Diocese of Puerto Rico-Arecibo v. Attorney General of the Commonwealth of Puerto Rico, 2014 PR Sup. LEXIS 87 (PR Sup. Ct., July 14, 2014), the Supreme Court of Puerto Rico decided a challenge by the Catholic Church to subpoenas issued to obtain information given to the diocese by victims of clergy sexual abuse.  The opinion and dissents, in Spanish, are summarized by AP in a July 15 article:

The Supreme Court of Puerto Rico has found that a Roman Catholic diocese does not need to share information about alleged sexual abuse by its priests if the victims are adults who wish to maintain their privacy.

The Diocese of Arecibo in northern Puerto Rico had sought to protect the identities of parishioners who made allegations against its priests. The diocese has defrocked six priests over such claims.

The court also states that information that came from private confessions may remain confidential.

In its ruling Monday the court also said the diocese must share information with prosecutors in cases where the alleged victims are younger than 18. In cases involving adults, the diocese must allow the alleged victims to decide whether to share information about the case with prosecutors.

10th Circuit Wades Through Procedural Morass In Invalidating Part of Oklahoma's Same-Sex Marriage Provisions

The 10th Circuit last week, in a case generating 84 pages of opinions that focus extensively on procedural issues, struck down Oklahoma's ban on same-sex marriage, but dismissed for lack of standing the state's refusal to recognize same-sex marriages performed elsewhere.  The unusual posture of the case stemmed from the fact that the 10th Circuit had already struck down as violative of the 14th Amendment Utah's bans on same-sex sex marriage and Utah's ban on recognizing such marriages performed in other jurisdictions (see prior posting). So in Bishop v. Smith, (10th Cir., July 18, 2014), the question was whether anything distinguished the challenge to Oklahoma's laws from the already decided challenge to Utah's.

In a portion of the opinion that all 3 judges agreed to, the court held that the couple challenging Oklahoma's non-recognition provisions lacked standing because the only defendant in the case, the Clerk of Court for Tulsa County, has nothing to do with recognizing or not recognizing a marriage performed elsewhere. The majority, however, held that Oklahoma's ban on granting licences for same-sex marriages performed in the state is unconstitutional, as was Utah's similar ban. The majority's conclusion was not undermined by the fact that plaintiffs had challenged only Oklahoma's constitutional ban on same-sex marriage, and not the parallel statutory ban as well. The majority stayed their mandate pending disposition of any petition for certiorari that is filed with the Supreme Court.

Judge Holmes wrote a 27 page concurring opinion explaining why the district court had been correct in not relying on the "animus" theory in striking down Oklahoma's ban on marriage equality. Judge Kelley dissented in part, arguing that the couple challenging the ban on in-state same-sex marriages also lacked standing because they challenged only the state constitutional ban and not the parallel statutory prohibition.  Judge Kelley also disagreed on the merits, contending that "Same-gender marriage is a public policy choice for the states, and should not be
driven by a uniform, judge-made fundamental rights analysis." Scotus Blog reports on the decision.

Meanwhile, the U.S. Supreme Court last week issued an order (full text) in Herbert v. Evans, staying pending appeal to the 10th Circuit the district court's preliminary injunction requiring Utah to recognize same-sex marriages performed during the gap period before a district court's order was stayed. (See prior posting.) Here is the petition to Justice Sotomayor requesting the stay.

Obama Issues Executive Order Barring LGBT Discrimination By Contractors and Agencies; No Religious Exemption Included

President Obama today issued an Executive Order (full text) adding "sexual orientation" and "gender identity" to the anti-discrimination provisions applicable to employment decisions by federal contractors.  The Order also added "gender identity" to the anti-discrimination provisions applicable executive departments and executive agencies, which are already barred from discriminating on the basis of sexual orientation. Despite urgings by some faith groups (see prior posting) today's Executive Order contains no religious or conscience exemption.

Ban on Sexual Exploitation By Counselor Survives Establishment Clause Challenge

In State of Iowa v. Edouard, (IA Sup. Ct., July 18, 2014), the Iowa Supreme Court upheld a clergyman's constitutional challenge to the state's statute prohibiting sexual exploitation by a counselor or therapist (Iowa Code Sec. 709.15).  The Christian pastor involved, Patrick Edouard, was charged with having sexual relations with four women he had counseled.  The majority held that the statute did not unconstitutionally burden Edouard's right to enter into sexual relationships. It also concluded that the statute does not violate the Establishment Clause:

We do not find section 709.15 violates the Establishment Clause as applied to clergy. As the State points out, the statute ... is essentially neutral. It applies to all persons who provide or purport to provide mental health services.

LA Times Profiles Becket Fund

The Los Angeles Times yesterday profiled The Becket Fund for Religious Liberty, saying in part:

The Supreme Court's controversial Hobby Lobby decision has thrust a once-little-known boutique law firm into the center of a growing conservative movement to make faith-based exemptions as potent a legal tool as free speech has been for liberals....

With just a dozen full-time attorneys, the fund's string of high-court successes is earning it a reputation in legal circles as a powerhouse, though its leaders downplay talk about the firm's growing influence....

The fund insists it represents all denominations, from "A to Z, from Anglicans to Zoroastrians." It once defended a Texas Santeria priest who wanted to sacrifice goats at home. This fall the firm heads back to the Supreme Court to represent a Muslim inmate prevented by prison rules from growing a beard in keeping with his faith....

But critics say in recent years Becket has turned its focus primarily toward representing Christians and the religious right.

Recent Articles and Book of Interest

From SSRN:

• Patrick Testa & Walter E. Block, Libertarianism and Circumcision, (Int J Health Policy Manag 3: 33-40, 2014).
• RonNell Andersen Jones, Press Definition and the Religion Analogy, (Harvard Law Review Forum, Forthcoming).
• Hershey H. Friedman, Miriam Gerstein & Paul Fenster, American Exceptionalism or Declinism: Lessons in Leadership and Ethics from the Twelve ‘Minor’ Prophets, (July 1, 2014).
• Toni M. Massaro, Nuts and Seeds: Mitigating Third-Party Harms of Religious Exemptions, Post-Hobby Lobby, (92 Denver University Law Review ___ (2015, Forthcoming)).
• Ira C. Lupu, Hobby Lobby and the Dubious Enterprise of Religious Exemptions, (Harvard Journal of Law and Gender, Vol. 38, No. 1, 2015, Forthcoming in Symposium, Religious Accommodation in the Age of Civil Rights).
• Susannah William Pollvogt, Brief of Amicus Curiae Susannah W. Pollvogt in Henry v. Himes (6th Cir.), (July 18, 2014).
• John D. Inazu, More is More: Strengthening Free Exercise, Speech, and Association, (Minnesota Law Review, Forthcoming).

From SmartCILP:

• Ihsan Ali Alkhatib, Shariah Law and American Family Courts: Judicial Inconsistency on the Talaq and Mahr Issues in Wayne County, Michigan, 14 Journal of Law In Society 83-105 (2013).
• Scott W. Gaylord, For-Profit Corporations, Free Exercise, and the HHS Mandate, 91 Washington University Law Review 589-657 (2014).

Recent Book:

• Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People, (Wm. B. Eerdmans Publishing, Aug., 2014).

Ruling Requiring Change of Use Permit For Meditation Center Upheld By Court

In  MAUM Meditation House of Truth v. Lake County, Illinois, (ND IL, July 16, 2014), an Illinois federal district court dismissed free exercise, free speech, equal protection and due process challenges to a decision by zoning authorities that a "change of use" permit is necessary to use a residence also as a meditation center. The court held first that plaintiffs must exhaust administrative remedies by seeking court review of a zoning board of appeals decision. In addition, the court concluded that plaintiffs cannot succeed on any of their substantive challenges.

Recent Prisoner Free Exercise Cases

In Partlow v. CDCR, 2014 U.S. Dist. LEXIS 94066  and Stamps v. CDCR, 2014 U.S. Dist. LEXIS 94069  (ED CA, July 10, 2014), a California federal magistrate judge dismissed with leave to amend a complaint that Asatru/ Odonic inmates were denied access to the chapel and outdoor worship space and denied religious items.

In Stepler v. Warden, Hocking Correctional Facility, 2014 U.S. Dist. LEXIS 94453 (SD OH, July 10, 2014), an Ohio federal magistrate judge recommended dismissing a Jewish inmate's complaint that he was not provided a room for religious services and not provided kosher meals with enough calories.  UPDATE: The court adopted the magistrate's recommendation at 2014 U.S. Dist. LEXIS 117120 (Aug. 21, 2014).

In Morgan v. City of New York, 2014 U.S. Dist. LEXIS 94693 (ED NY, July 10, 2014), a New York federal district court permitted plaintiff, a Rastafarian, to move ahead with his claim that his free exercise rights were infringed when his turban was removed at a police precinct after he was arrested.

In Martinez v. Vondewigelo, 2014 U.S. Dist. LEXIS 95005 (WD KY, July 14, 2014), a Kentucky federal district court dismissed an inmate's complaint that he has been denied access to religious materials in Spanish.

In King v. Bosenko, 2014 U.S. Dist. LEXIS 95649 (ED CA, July 11, 2014), a California federal magistrate judge permitted an inmate to move ahead with his claim that his Buddhist beliefs require a vegetarian diet which he was wrongfully denied.

In Dotson v. Shelby County, 2014 U.S. Dist. LEXIS 95953 (WD TN, July 15, 2014), a Tennessee federal district court permitted an inmate to move ahead with his complaint that he did not receive a halal diet.  The court found that his claim fell within the "imminent danger" exception to the disqualification of three-strike prisoner suits filed in forma pauperis. The court dismissed plaintiff's claim that disposable razors had been replaced by electric clippers.

In Sangraal v. Godinez, 2014 U.S. Dist. LEXIS 96056 (SD IL, July 14, 2014), an Illinois federal district court permitted a Pagan inmate to proceed with his complaint that the pentacle as a religious symbol was banned; use of tarot cards to practice divination was restricted; religious literature was selectively screened and he was subjected to overtly Christian messages.

In Bell v. Kennedy, 2014 U.S. Dist. LEXIS 96115 (ED AR, July 15, 2014), an Arkansas federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 96110, June 18, 2014) and denied a preliminary injunction against enforcing grooming regulations against a Rastafarian who adheres to the Nazarite Vow.

Federal Agencies Provide Disclosure Guidance For Companies Relying On Hobby Lobby Decision

The Department of Labor on Thursday posted an addition to Frequently Asked Questions to provide post-Hobby Lobby ERISA guidance from relevant federal agencies. For closely-held companies that terminate contraceptive coverage mid-plan year in reliance on the Hobby Lobby decision:

if an ERISA plan excludes all or a subset of contraceptive services from coverage under its group health plan, the plan's SPD [Summary Plan Description] must describe the extent of the limitation or exclusion of coverage. For plans that reduce or eliminate coverage of contraceptive services after having provided such coverage, expedited disclosure requirements for material reductions in covered services or benefits apply... which generally require disclosure not later than 60 days after the date of adoption of a modification or change.... Other disclosure requirements may apply, for example, under State insurance law applicable to health insurance issuers.

Remaining Christians Flee Iraqi City of Mosul After Decree By ISIS

BBC News, AP and the New York Times reported Friday that almost all Christians have left the Iraqi city of Mosul after a statement from the radical group Islamic State in Iraq and the Levant was read at the city's mosques. The statement gave Christians the choice of conversion, paying a traditional fee for protection (jizya) or death, with a deadline of noon Saturday.  The statement said in part:

We offer them three choices: Islam; the dhimma contract - involving payment of jizya; if they refuse this they will have nothing but the sword,

FFRF and IRS Settle Suit On Non-Enforcement of 501(c)(3) Against Churches

The Freedom From Religion Foundation announced Thursday that it has reached a settlement agreement with the Internal Revenue Service in Freedom From Religion Foundation v. Koskinen, a suit (links to pleadings) challenging the IRS's alleged non-enforcement against churches and religious organizations of the Section 501(c)(3) ban on political activity by non-profits. (See prior related posting.)  According to FFRF:

A prior lawsuit in 2009 required the IRS to designate an appropriate high-ranking official to initiate church tax examinations, but it had apparently failed to do so. 

The IRS has now resolved the signature authority issue necessary to initiate church examinations. The IRS also has adopted procedures for reviewing, evaluating and determining whether to initiate church investigations. While the IRS retains “prosecutorial” discretion with regard to any individual case, the IRS no longer has a blanket policy or practice of non-enforcement of political activity restrictions as to churches.

Church audits will not begin immediately because the IRS now has a broader moratorium in place on investigation of any tax-exempt organizations because of the Congressional investigation of its alleged targeting of conservative groups for adverse treatment.