Lawsuit Seeks To Stop Use of Chickens In Pre-Yom Kippur Ceremony

BNC reported yesterday that a lawsuit has been filed in a New York state trial court seeking to enjoin to enjoin Brooklyn Jewish residents from organizing, conducting or participating in the pre-Yom Kippur ritual of kaporos using live chickens. The chickens are slaughtered after use in a ceremony seeking to atonemnet for one's sins.  The suit, filed by an organization known as Alliance to End Chickens As Kaporos, was prompted by concern that thousands of chickens are shipped into Brooklyn for the ceremony each year and many are left starving for days and found dead.  Many Jews use coins that are contributed to the poor in the ritual instead of chickens.

Successful DOMA Challengers Denied Attorneys' Fees Award

In McLaughlin v. Hagel, (1st Cir., Sept. 23, 2014), the U.S. 1st Circuit Court of Appeals held that plaintiffs who successfully challenged the constituitonality of Sec. 3 of the Defense of Marriage Act are not entitled to an award of attorneys' fees against the government under the Equal Access to Justice Act. According to the court:

This extraordinary case presents the unusual situation in which the government's pre-litigation and during-litigation position was to enforce a challenged statute, but in which the government's litigation position was to argue that the challenged statute is unconstitutional....

Though novel, the government's litigate-to-lose position is not barred by the case law. And because it was constitutionally appropriate, fees were correctly denied as a matter of law.

 National Law Journal reported on the decision.

Russian Constitutional Court Upholds Ban on Promoting Homosexuality To Minors, Interpreting It Narrowly

Interfax reported last week that Russia's Constitutional Court has upheld the constitutionality of Article 6.21 of the Russian Code of Administrative Violations that bans promoting homosexuality among minors, but said it must be interpreted narrowly.  The Sept. 23 decision (full text in Russian), which was issued without a public hearing, came in a suit filed by gay rights activists who had been fined under the law. According to Interfax:

the Constitutional Court decided that the legislator's purpose was to establish a balance between personal autonomy and the public interest with regard for the traditional ideas of marriage, family and motherhood in Russian society, in which many religious people are represented.

Constitutional Court Judge Nikolay Bondar commented on the decision, saying:

The Russian Constitutional Court has found that the contested provision does not contradict the Constitution. It also gave a constitutional law interpretation, which shows all law enforcers that a broad interpretation of the ban is unacceptable and it is compulsory for everyone, including courts.... 

Secondly, the court ruled that this provision is not aimed at banning or officially condemning non-traditional sexual relations. Thirdly, this article does not prevent impartial public debate of the legal status of sexual minorities, including by holding public events according to the procedures established by law. However, minors should not be involved in the relevant events, no matter whether it's rallies or debates, and the disseminated information should not be targeted at them.

(See prior related posting.)

Arkansas Firing Range Says It is A "Muslim Free Zone"

An indoor firing range in Hot Springs, Arkansas has declared itself a "Muslim Free Zone." Jan Morgan, owner of The Gun Cave Indoor Firing Range and conservative online journalist sets out ten reasons for her decision, ranging from strange behavior recently by two Muslim patrons at her firing range to concern about ISIS and honor killings.  She says she has chosen to "err on the side of caution" since she has "no way of discerning which muslims will or will not kill in the name of their religion and the commands in their koran." Addressing the issue of religious discrimination, Morgan says: "I view Islam as a theocracy, not a religion." KRMG News says that comments are flooding the firing range's Facebook page in support of it decision.

North Carolina Distributes First Voucher Funds While Challenge Is On Appeal

AP reports that last week the North Carolina State Educational Assistance Authority distributed $1.1 million under its Opportunity Scholarship Program to 109 private and religious schools for 568 qualifying students.  The largest amount of money-- $90,300 for 43 students went to the Greensboro Islamic Academy. $54,600 went to Word of God Christian Academy. The voucher program had been enjoined by a state trial court, but on Sept. 19 the state court of appeals ruled that, pending an appeal, students who had already been granted Opportunity Scholarships could receive the funds.

Cert. Filed In Ban On Church Use of New York City Schools

A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Bronx Household of Faith v. Board of Education of the City of New York, (cert. filed 9/24/2014).  In the case the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision held that the Board of Education of the City of New York did not violate the free exercise clause when in 2007 it changed its rules to bar the use of school facilities by churches for religious worship services. ADF announced the filing of the cert. petition. [Thanks to Jeff Pasek for the lead.]

EEOC Files Two Religious Discrimintion Cases

In recent days, the EEOC has filed two separate religious discrimination cases. On Sept. 25, the agency announced that it has filed suit against a Michigan-based automobile dealership-- Feldman Automotive, Inc. The suit alleges that the company refused to hire Brandan Allen as a car salesman after learning that he was a religious member of a non-denominational church.

On Sept. 29, the EEOC announced that it has sued U.S. Steel Tubular Products, Inc., a subsidiary of U.S. Steel Corporation for failing to accommodate the religious beliefs of an applicant for a utility technician position who was a member of the Nazirite sect of the Hebrew Israelite faith. The company insisted that the applicant Stephen Fayusi take a hair follicle drug test that required cutting his hair at the scalp, and refused alternatives such as hair from other parts of his body.

Continuing Resolution Extends USCIRF Until Dec. 11

The Continuing Appropriations Resolution 2015, (Sec. 144), signed by the President on Sept. 19, among other things amends 22 USC 6436 to extend the life of the U.S. Commission on International Religious Freedom from Sept. 30, 2014 to Dec. 11, 2014.

Recent Articles of Interest

From SSRN:

• Ioana Cismas, Introductory Note to Committee on the Rights of the Child Concluding Observations on the Second Periodic Report of the Holy See, (International Legal Materials, Vol. 53, No. 3 (2014), pp. 580-59).
• Jeremy Waldron, What Do Philosophers Have Against Dignity?, (September 17, 2014).
• Judith Areen, Uncovering the Reformation Roots of American Marriage and Divorce Law, (Yale Journal of Law & Feminism, Vol. 26, pp. 29-85, 2014).
• Frederick Mark Gedicks, One Cheer for Hobby Lobby: Improbable Alternatives, Third-Party Burdens, and the Specter of RFRA Strict Scrutiny, (Harvard Journal of Law and Gender, Vol. 38, 2015 Forthcoming).
• Spencer Churchill, Reasoning from Principles of Religious Liberty to a Test of Sincerity for Corporate RFRA Claims, (August 28, 2014).
• Faisal Kutty, 'Islamic Law' in U.S. Courts: Judicial Jihad or Constitutional Imperative?, (Pepperdine Law Review, Forthcoming).
• Faisal Kutty, The Kutty 'Islamic Law' Flowchart, (September 24, 2014).
• Corey Ciocchetti, Religious Freedom & Closely Held Corporations: The Hobby Lobby Case & Its Ethical Implications, (Oregon Law Review, Forthcoming).
• Christopher R. Leslie, Embracing Loving: Trait-Specific Marriage Laws and Heightened Scrutiny, (Cornell Law Review, Vol. 99, No. 5, 2014, pp.1077-1130).

From SmartCILP:

• Hanna Lerner, Critical Junctures, Religion, and Personal Status Regulations in Israel and India, [Abstract], 39 Law & Social Inquiry 387-415 (2014).
• Joshua C. Wilson &Amanda Hollis-Brusky, Lawyers for God and Neighbor: The Emergence of "Law As a Calling" As a Mobilizing Frame for Christian Lawyers, [Abstract], 39 Law & Social Inquiry 416-448 (2014).
• Rafael Domingo, A Right to Religious and Moral Freedom? [Abstract]; Reply by Michael J. Perry [Abstract], 12 I.Con: International Journal of Constitutional Law 226-255 (2014).

Many Navy Chaplains' Claims Dismissed on Limitations Grounds

The federal district court for the District of Columbia last week dismissed on statute of limitations grounds a number of discrimination claims in the long-running suit brought by a group of Non-Liturgical Protestant chaplains and their certifying agencies against the U.S. Navy. In In re Navy Chaplaincy, (D DC, Sept. 24, 2014), the court rejected various theories put forward by plaintiffs who argued that the suit was still timely.

Recent Prisoner Free Exercise Cases

In Ureña v. Strafford County House of Corrections, 2014 U.S. Dist. LEXIS 132513 (D NH, Sept. 22, 2014), a New Hampshire federal magistrate judge recommended allowing a Muslim inmate to proceed with a number of his claims regarding access to a halal diet and to Jumu'ah, a Qur'an, a kufi and an Imam.

In Sublett v. Green, 2014 U.S. Dist. LEXIS 135527 (ED KY, Sept. 24, 2014), a Kentucky federal district court dismissed an inmate's complaint that he was denied kosher meals while in segregation. The court found plaintiff had not exhausted administrative remedies.

In Bartlett v. Wengler, 2014 U.S. Dist. LEXIS 135516 (D ID, Sept. 24, 2014), an Idaho federal district court indicated that it intended to dismiss an inmate's complaint about failure to provide kosher meals.

In Shepherd v. Powers, 2014 U.S. Dist. LEXIS 136467 (SD NY, Sept. 26, 20140, a New York federal district court allowed an inmate to proceed with a complaint that in punitive segregation he was unable to attend church or Bible study classes, and he only a received a Bible three days after he requested one.

Suit Filed In US Court Against Indian Primie Minister Over 2002 Anti-Muslim Riots

Reuters reports on a lawsuit filed last Thursday in the Southern District of New York federal district court against Indian Prime Minister Narenda Modi over his alleged lack of action as Chief Minister of Gujarat during anti-Muslim rioting in 2002. Modi is a member of the Hindu nationalist BJP Party.  The person behind the lawsuit is 70-year old Joseph Whittington, a member of the Harvey, Illinois City Council. Whittington, who is African-American, says some of his constituents or their families were victims of the Gujarat riots, which reminded him of the U.S. civil rights movement. Whittington worked with a group of New York lawyers to found a non-profit, American Justice Center, which filed the suit against Modi. AP reports that American Justice Center is offering a $10,000 reward to anyone who can serve process on Modi while he is in the United States for a visit. Normally sitting heads of state enjoy immunity from lawsuits in American courts and cannot be served.

Megachurch Leader Threatens To Sue Rappers Over Remix

The New York Daily News reported Thursday that Dallas megachurch leader T.D. Jakes is threatening to sue popular rappers Young Jeezy and Kendrick Lamar over use of a 24-second clip from a Jakes' sermon in a remix of "Holy Ghost." Legal experts suggest that the fair use doctrine makes Jakes' claim a difficult one.

Federal Court Says State Court Should Act First In Challenge To Eruv Zoning Decisions

East End Eruv Association v. Town of Southampton, (ED NY, Sept. 24, 2014), is the latest decision by a New York federal district court in challenges to the refusal by Long Island towns to permit a Jewish organization to construct an eruv.  The court held that the claim that zoning authorities acted arbitrarily and capriciously in denying an appeal and a variance should be decided in state court, and that plaintiffs' other five claims should be stayed pending that decision.  In a related decision, on the same day in the same case, the court refused to allow an organization known as Jewish People Opposed to the Eruv to intervene in the case.

President Sends Greetings For Rosh Hashanah

The Jewish holiday of Rosh Hashanah begins this evening. The White House has posted a video and transcript of High Holiday greetings from President Obama.

Obama To U.N.: Terrorists Have Perverted Islam

President Obama today delivered a wide-ranging speech (full text) before the United Nations General Assembly addressing challenges facing the international community. Significant portions of his remarks focused on the role of religion in current conflicts.  He said in part:

In the 20th century, terror was used by all manner of groups who failed to come to power through public support. But in this century, we have faced a more lethal and ideological brand of terrorists who have perverted one of the world’s great religions....  At the same time, we have reaffirmed that the United States is not and never will be at war with Islam. Islam teaches peace. Muslims the world over aspire to live with dignity and a sense of justice. And when it comes to America and Islam, there is no us and them – there is only us, because millions of Muslim Americans are part of the fabric of our country.

So we reject any suggestion of a clash of civilizations. Belief in permanent religious war is the misguided refuge of extremists who cannot build or create anything, and therefore peddle only fanaticism and hate. And it is no exaggeration to say that humanity’s future depends on us uniting against those who would divide us along fault lines of tribe or sect; race or religion....

[I]t is time for the world – especially Muslim communities – to explicitly, forcefully, and consistently reject the ideology of al Qaeda and ISIL. It is the task of all great religions to accommodate devout faith with a modern, multicultural world.... There should be no more tolerance of so-called clerics who call upon people to harm innocents because they are Jewish, Christian or Muslim. It is time for a new compact among the civilized peoples of this world to eradicate war at its most fundamental source: the corruption of young minds by violent ideology....

That means bringing people of different faiths together. All religions have been attacked by extremists from within at some point, and all people of faith have a responsibility to lift up the value at the heart of all religion: do unto thy neighbor as you would have done unto you....

[W]e must address the cycle of conflict – especially sectarian conflict – that creates the conditions that terrorists prey upon. There is nothing new about wars within religions. Christianity endured centuries of vicious sectarian conflict. Today, it is violence within Muslim communities that has become the source of so much human misery. It is time to acknowledge the destruction wrought by proxy wars and terror campaigns between Sunni and Shia across the Middle East. And it is time that political, civic and religious leaders reject sectarian strife..... 

Today Is 2014 "See You At the Pole" Prayer Event

Today is the date for this year's annual Christian-sponsored "See You At The Pole" event at schools around the country and beyond.  According to the SYATP website:

See You at the Pole™ is simply a prayer rally where students meet at the school flagpole before school to lift up their friends, families, teachers, school, and nation to God. See You at the Pole™ is a student-initiated, student-organized, and student-led event.

This year's theme is a verse from Ephesians 6:18: "Never Stop Praying, Especially for Others."  Organizers claim that over 3 million students in 20 countries participate in the event.  Alliance Defending Freedom has distributed a Legal Memo on "Student Rights to Participate In and Promote See You at the Pole."

New Study Released On Israeli Religion-State Public Opinion

In Israel yesterday, Hiddush- Freedom of Religion for Israel released its 2014 Israel Religion and State Index. The report is its annual study of Israeli public opinion on religion and state issues. Here is an excerpt from the Executive Summary:

[T]he Israeli Jewish public expressed an all-time high dissatisfaction with the government policies regarding religion and state..... A sweeping majority of Israelis (including the beleaguered residents of southern Israel) indicated their opposition to the claim, used to legitimize ultra-Orthodox draft evasion, that Torah study and prayers are Israel's true defense mechanism. Similarly, the majority of the respondents did not accept rabbinic explanations that security incidents and natural disasters are caused by punishments for religious sins.  Unfortunately, freedom of religion and equality continuously fall victim to politicians who ignore the strong will of the Israeli public for freedom of religion and equality.

Preacher Claims Health Department Job Offer Was Withdrawn Because of His Religious Views

The Atlanta Journal Constitution reports that a Seventh Day Adventist preacher yesterday filed a complaint with the Equal Employment Opportunity Commission claiming that the Georgia Public Health Department rescinded a job offer it had made to him when it learned of some of his religious views.  At issue are videos of sermons by preacher Eric Walsh in which he says that homosexuality is a sin and evolution is a "religion created by Satan."   Walsh resigned from his job in California two days before Georgia rescinded the offer.  The Georgia Public Health Department says that the job offer was contingent on a background check and that its withdrawal was not related to Walsh's religious beliefs.

New Mediation Efforts In Milwaukee Archdiocese Bankruptcy Fail

The Catholic Archdiocese of Milwaukee announced yesterday that its second attempt at mediation with the creditors' committee and abuse victims in its bankruptcy reorganization has failed.  The sticking point is whether some $50 million held by a Cemetery Trust for perpetual care of Archdiocesan cemeteries will be available to Archdiocese creditors.  That issue is currently on appeal to the 7th Circuit after a federal district court held that the Trust asssets were not available to creditors. (See prior posting.)  The Archdiocese has already incurred over $15.4 million in legal fees and expenses in the bankruptcy reorganization.