Consent Injunction Issued In Church's RLUIPA "Equal Terms" Challenge

A Kansas federal district court last week issued a consent order (full text) granting a preliminary injunction barring Garden City, Kansas from enforcing its zoning code against a church that has been located in the city's central business district for ten years. The order in Mount Zion Church of God In Christ v. City of  Garden City, Kansas, (D KA, Nov. 14, 2014), comes in a RLUIPA challenge to provisions that fail to include churches as permitted uses in the area zoned as Central Business District.  The complaint (full text) in the case invokes RLUIPA's "equal terms" provision as well as the 14th Amendment.  In September the city told Mount Zion that it must stop using its location as a church after the city received a complaint from a citizen about another nearby church. RLUIPA Defense blog today reports on the case.

Monitor's Report Critical of Actions By Orthodox Jewish Majority On East Ramapo NY School Board

The New York Times reported yesterday that a state-appointed monitor has delivered a report to the New York State Board of Regents sharply critical of the East Ramapo (NY) School District board.  A majority of the East Ramapo Board's members are Orthodox Jews. In the district, Jewish yeshivas enroll around 24,000 students while the public schools enroll 9,000 students, predominately Black and Latino. Public school parents complain that the Board gives increasing financial aid to yeshivas, while cutting public school budgets. The special monitor, Hank Greenberg, essentially agreed, saying:

What I have found is that you have a board deeply influenced and informed by the community from which they’ve come — so concerned about the children of that community that it has blinded them to the needs of the entire community,

His report calls for more state funding, accompanied by a new law that would provide for a fiscal monitor with the power to overrule decisions of the school board and superintendent. East Ramapo school board president Yehuda Weismandel issued a statement (full text) responding to the monitor's report.

Air Force Amends Instruction On Religious Freedom and Accommodation

Last week, the U.S. Air Force announced that Air Force Instruction 1-1 on Air Force Culture has been updated as of Nov. 7 to clarify standards on free exercise of religion and religious accommodation. The amended Instruction (full text) strengthens free exercise and religious accommodation rights of military personnel, and weakens restrictions on proselytizing. The new amendments provide in part:

Every Airman also has the right to individual expressions of sincerely held beliefs, to include conscience, moral principles or religious beliefs, unless those expressions would have an adverse impact on military readiness, unit cohesion, good order, discipline, health and safety, or mission accomplishment.....

[Leaders] must ensure their words and actions cannot reasonably be construed to be officially endorsing or disapproving of, or extending preferential treatment for any faith, belief, or absence of belief.

Gone from the amended version is previous language providing that leaders "must avoid the actual or apparent use of their position to promote their personal religious beliefs to their subordinates."

The original version of the Instruction allowed religious accommodation requests to be denied on the basis of "military necessity."  The new amendments provide:

If it is necessary to deny free exercise of religion or an accommodation request, the decision must be based on the facts presented, must directly relate to the compelling government interest of military readiness, unit cohesion, good order, discipline, health and safety, or mission accomplishment, and must be by the least restrictive means necessary to avoid the cited adverse impact.

The amended Instruction also makes it clear that these guidelines on religious expression apply to communications on social media.

Military Association of Atheists & Freethinkers has an analysis of the amendments as well as a chart of the changes in language in the 2014 amendments.

Florida School District Proposing To Ban Distribution of All Religious Material

The Orange County, Florida Public Schools are giving up on their passive distribution policy that originally allowed Bibles to be distributed by World Changers in high schools, but then led to litigation over material critical of the Bible that Freedom From Religion Foundation sought to distribute. That was followed by a request from a New York-based Satanic Temple to distribute its materials under the school district's limited public forum policy. According to yesterday's Christian Post, the Florida school district is now proposing a rule change that will prohibit distribution of materials of a denominational, sectarian, religious, political or partisan nature. Pending requests to distribute material will be put on hold while the rule change is under consideration. Commenting on the proposal, school board chairman Bill Sublette said that the situation has gotten out of hand. "I think we've seen a group or groups take advantage of the open forum we've had," he said.

UPDATE: The Board adopted the proposed ban bya 7-1 vote on Feb. 10, 2015. (Orlando Sentinel).

New Lawsuit Challenges Nebraska's Ban On Same-Sex Marriage

A lawsuit was filed yesterday in federal district court in Nebraska by 7 couples challenging the constitutionality of Art. I, Sec. 29 of Nebraska's state constitution.  The provision prohibits same-sex couples from marrying and bars recognition of the marriages of same-sex couples performed in other jurisdictions. The complaint (full text) in Waters v. Heineman, (D NE, filed 11/17/2014) contends that the provision violates the due process and equal protection clauses of the 14th Amendment. ACLU announced the filing of the lawsuit. Sioux City Journal has additional background. In 2006, in Citizens for Equal Protection v. Bruning, the 8th Circuit upheld the Nebraska ban.

Suit Challenges Prayer and Bible Readings At School Board Meetings

The Freedom From Religion Foundation filed suit last week against a California school board challenging the practice of prayer and Bible readings at school board meetings.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, (CD CA, filed 11/13/2014), alleges:

The Chino Valley School Board ... begins each meeting with a prayer. Indeed the meetings resemble a church service more than a school board meeting, complete with Bible readings by the Board members, Bible quotations by Board members, and other statements by Board members promoting the Christian religion.

The suit contends that the school board's practices violate both the federal and California constitutions. Friendly Atheist blog reports on the lawsuit.

Pope Francis Confirms Planned September U.S. Visit

The New York Times, Vatican Radio and other media reported yesterday that Pope Francis has confirmed that he will make his first Papal Visit to the United States in September to attend the World Meeting of Families in Philadelphia. No other stops in the U.S. have been confirmed, but the Vatican's United Nations representative says the trip will also include a visit to New York. The Pope announced his visit while speaking in Rome at a Colloquium on Complementarity of Man and Woman sponsored by the Congregation for the Doctrine of the Faith.  The U.S. trip is hardly a surprise since, as previously reported, last July Philadelphia Archbishop Chaput confirmed it.

Group Launches Annual "Friend or Foe Christmas" Campaign

Liberty Counsel announced yesterday that it is launching its 12th annual "Friend or Foe Christmas Campaign." The campaign treats as a "foe" of Christmas businesses or governmental entities that use terms other than "Christmas" in promoting the holiday season.  Liberty Counsel publishes a "Naughty or Nice List" of retailers that either use the term "Christmas" or refused to do so. The group also has placed on its website a legal memo on religious displays and celebrations in schools and governmental offices. A second legal memo focuses on religious expression rights of employees of private businesses.

Church of Brethren Has No Right To Property of Break-Away Congregation

In Church of the Brethren v. Roann Church of the Brethren, Inc., (IN App., Nov. 17, 2014), an Indiana appeals court held that a break-away Church of the Brethren congregation had not placed its property into an irrevocable trust, express or implied, for the benefit of the Denomination.  Applying the neutral-principles-of-law approach, the court reviewed the Denomination's Organization and Polity Manual, the underlying deeds and the congregational constitution to affirm the trial court's holding that the church property remains with the congregation. [Thanks to Michael E. DiRienzo for the lead.]

Nuns Volunteering For Red Cross Were Not "Employees" Under Title VII

In Marie v. American Red Cross, (6th Cir., Nov. 14, 2014), the U.S. 6th Circuit Court of Appeals rejected Title VII as well as 1st and 14th Amendment claims by two Catholic nuns who were dismissed from their long-time volunteer positions as disaster relief workers for the American Red Cross and the Ross County (Ohio) Emergency Management Agency.  The court rejected plaintiffs' Title VII religious discrimination claims because "their volunteer relationship does not fairly approximate employment and is not covered by Title VII."

The court also concluded that plaintiffs had not produced evidence to support their 1st Amendment claim that they were terminated in retaliation for expressing their traditional Catholic beliefs and wearing traditional habits, rosaries, and crosses. Nor did they show disparate treatment in violation of their equal protection rights. In addition, the court found that neither the American Red Cross nor its district executive director were engaged in "state action."

Recent Articles of Interest

From SSRN:

• B. Jessie Hill, Ties that Bind? The Questionable Consent Justification for Hosanna-Tabor, (109 Northwestern University Law Review Online (Forthcoming)).
• Elizabeth Sepper, Gendering Corporate Conscience, (Harvard Journal of Law and Gender, Vol. 39 (in Harvard Law School Symposium, Religious Accommodation in the Age of Civil Rights) (Forthcoming 2014).
• Elizabeth Sepper, Reports of Accommodation's Death Have Been Greatly Exaggerated, (128 Harvard Law Review Forum 24 (2014)).
• Mohammad Rubaiyat Rahman, Freedom of Religion and Human Rights: South Asia Perspective, (ELCOP Yearbook of Human Rights 2014, pp. 80-90).
• Daiwood I. Ahmed & Moamen Gouda, Measuring Constitutional Islamization: The Islamic Constitutions Index, (Hastings International and Comparative Law Review, Forthcoming).
• Sean-Tamba Matthew, Kids and the Keystone Constitutional Conundrum: Can Pennsylvania Institute a School Voucher Program to Rescue Children from Underperforming Schools?, (Widener Law Review, Vol. 20, No. 139, 2014).
• Lorenzo Zucca, A Secular Globe? The Place of Freedom of Religion in the Westphalian World Order, (Lorenzo Zucca, Religious Rights, Ashgate 2015).
• Ashutosh Avinash Bhagwat, Reed v. Town of Gilbert: Signs of (Dis)Content?, (NYU Journal of Law & Liberty, Forthcoming).

From SmartCILP:

• Michael J. Broyde, Ira Bedzow & Shlomo C. Pill, The Pillars of Successful Religious Arbitration: Models for American Islamic Arbitration Based On the Beth Din of America and Muslim Arbitration Tribunal Experience, 30 Harvard Journal of Racial & Ethnic Justice 33-76 (2014).
• Maryam S. Khan, Ethnic Federalism In Pakistan: Federal Design, Construction of Ethno-Linguistic Identity & Group Conflict, 30 Harvard Journal of Racial & Ethnic Justice 77-129 (2014).

In Iraq, Excessive Official Holidays Lead To Educational and Governmental Concerns

Al Monitor reports today that in Iraq, educational achievement and productivity in government, sevices and contruction sectors are being adversely affected by the excessive number of officially recognized religious and ethnic holidays. The political system leads to governmenmt recognition of the holidays of each of the many religious and ethnic group in the country.  Iraq recognizes 150 official vacation days under a law passed by Parliament last year.

Recent Prisoner Free Exercise Cases

In Glenn v. Liebel, 2014 U.S. Dist. LEXIS 158195 (SD IN, Nov. 10, 2014), an Indiana federal district court allowed an inmate to proceed with his complaint that his Eastern Orthodox religion has not been included in the prison system's Handbook of Religious Belief and Practices, and that he has been denied access to Eastern Orthodox religious services and various religious items.

In Muhammad v. Jenkins, 2014 U.S. Dist. LEXIS 158481 (SD NY, Nov. 4, 2014), a New York federal district court rejected claims for injunctive relief but set for trial the damage action by plaintiff who claimed that the denial of a change in his parole curfew restrictions were motivated by religious hostility and prevented him from attending his Nation of Islam mosque.

In Guillory v. Jones County Jail, 2014 U.S. Dist. LEXIS 159159 (SD MS, Nov. 12, 2014), a Mississippi federal district court permitted a Muslim pre-trial detainee's claim that he was prevented from performing daily prayers because of cell overcrowding and was not given special Ramadan meals, a prayer rug or religious hat to proceed only against the sheriff in his official capacity.

In Hunter v. Corrections Corporation of America, 2014 U.S. Dist. LEXIS 159739 (SD GA, Nov. 13, 2014), a Georgia federal magistrate judge permitted a Muslim inmate to move ahead with his claims under RLUIPA and the Establishment Clause that he enrolled in a faith-based program when a bottom bunk became available and he was told that he could teach Islam there, but instead he was forced to attend group sessions promoting Christianity 13 times per week.

Obama Urges Equality For Religious Minorities In Burma

In Burma yesterday, President Obama held a joint news conference (full text) with opposition politician Daw Aung San Suu Kyi. Asked about his discussions with the Burmese President and political leaders on constitutional change, President Obama said in part:

I indicated that we are paying attention to how religious minorities are treated in this country.  Now, I recognize the complexities of the situation in Rakhine state.  On the other hand, consistent with what Daw Suu just said, I am a firm believer that any legitimate government has to be based on rule of law and a recognition that all people are equal under the law.  And discrimination against the Rohingya or any other religious minority I think does not express the kind of country that Burma over the long term wants to be.  And I know of no successful democracy in which sectarian or religious divisions are allowed to fester, or the people of different faiths are treated as second-class citizens.  Ultimately, that is destabilizing to a democracy.

Cert. Petitions Begin To Be Filed In 6th Circuit Same-Sex Marriage Cases

Plaintiffs who lost in the 6th Circuit last week in their challenges to same-sex marriage restrictions in four states (see prior posting) are seeking Supreme Court review rather than an en banc rehearing by the full 6th Circuit. Petitions for certiorari were filed on Friday in:

• Henry v. Hodges (Ohio) (full text of petition)
• Tanco v. Haslem (Tennessee) (full text of petition)

Detroit Free Press says a petition is expected Monday in DeBoer v. Snyder  (Michigan). A petition will also be filed in the near future in Love v. Beshear (Kentucky). (HRC Blog).

DC Circuit Upholds ACA Contraceptive Compromise For Religious Non-Profits

The U.S. Court of Appeals for the D.C. Circuit today upheld the Obama administration's accommodation for religious non-profits that object to directly furnishing contraceptive coverage in their health insurance plans as required by regulations under the Affordable Care Act.  In Priests for LIfe v. U.S. Department of Health and Human Services, (DC Cir., Nov. 14, 2014), the unanimous 3-judge panel in an 86-page opinion written by Judge Cornelia Pillard said in part:

The regulatory opt out works simply: A religious organization that objects on religious grounds to including coverage for contraception in its health plan may so inform either the entity that issues or administers its group health plan or the Department of Health and Human Services. Delivery of the requisite notice extinguishes the religious organization’s obligation to contract, arrange, pay, or refer for any coverage that includes contraception. The regulations then require group health plan insurers or administrators to offer separate coverage for contraceptive services directly to insured women who want them, and to inform beneficiaries that the objecting employer has no role in facilitating that coverage....

We conclude that the challenged regulations do not impose a substantial burden on Plaintiffs’ religious exercise under RFRA. All Plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two page form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law in the modern administrative state. Religious nonprofits that opt out are excused from playing any role in the provision of contraceptive services, and they remain free to condemn contraception in the clearest terms. The ACA shifts to health insurers and administrators the obligation to pay for and provide contraceptive coverage for insured persons who would otherwise lose it as a result of the religious accommodation.

Even if, as Plaintiffs aver, we must take as dispositive their conviction that the accommodation involves them in providing contraception in a manner that substantially burdens their religious exercise, we would sustain the challenged regulations. A confluence of compelling interests supports maintaining seamless application of contraceptive coverage to insured individuals even as Plaintiffs are excused from providing it. That coverage offers adults and children the benefits of planning for healthy births and avoiding unwanted pregnancy, and it promotes preventive care that is as responsive to women’s health needs as it is to men’s. The accommodation requires as little as it can from the objectors while still serving the government’s compelling interests. Because the regulatory opt-out mechanism is the least restrictive means to serve compelling governmental interests, it is fully consistent with Plaintiffs’ rights under RFRA. We also find no merit in Plaintiffs’ additional claims under the Constitution and the Administrative Procedure Act.

Christian Science Monitor reports on the decision.

Court Will Not Decide Validity of Vote In Challenge By Excommunicated Members of Buddhist Temple

In Matter of Ming Tung v China Buddhist Association, (NY App., Nov. 13, 2013), a New York state intermediate appeals court, in a 4-1 decision, refused to order a Buddhist Temple to hold a membership meeting with a receiver determining those eligible to vote. The dissent described the facts as follows:

Respondent Mew Fung Chen (Master Chen) excommunicated not only the three petitioners but a total of 517 members, representing all the congregants of the Manhattan chapter of the CBA and a majority of the CBA's members, 10 days before the special meeting called by the two unauthorized trustees appointed by Master Chen. Thus, he deprived the Manhattan congregants of their right to vote on the agenda of the meeting which, in effect, resulted in the transfer of control of all properties and assets of the CBA to Master Chen. Only 110 members of the Queens faction of the CBA, all supporters of Master Chen, were given notice of the special meeting. 

The majority held, however:

At first blush the petition appears to present a straightforward issue of corporate governance, specifically whether various corporate actions, including a meeting held in May 2011, were improperly taken, thereby depriving petitioners of their right to participate in those events.... We hold, however, that because petitioners are not members of the CBA based upon Master Chen's excommunication of them, they cannot challenge these corporate actions.... Petitioners contend that their excommunication was completely motivated by Master Chen's desire to squelch the simmering underlying dispute over ownership of real property in Manhattan and Queens where the CBA owns temples. Even where the parties' dispute concerns control of church property, the court will not intervene in matters that are predominantly religious disagreements...

Reuters reports on the decision.

Suit Challenges Vote Counting On Tennessee Pro-Life Amendment

Tennessee voters this month voted on a proposed state constitutional amendment providing:

Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.

In preliminary results, state election officials reported that the measure passed 728,751 in favor and 656,427 opposed.  However, the Memphis Flyer reports that in an attempt to prevent the measure from taking effect, a group of pro-choice voters have filed suit in federal district court challenging the state's vote-counting procedure.

Tennessee Constitution, Art. XI, Sec. 3, provides that amendments need to be approved "by a majority of all the citizens of the state voting for governor, voting in their favor."  Plaintiffs claim that this is more than a requirement for a certain number of total votes.  They say election officials must actually match ballots and count only votes from voters who also voted for Governor. Supporters of the ballot measure this year had urged their backers to vote for the Amendment, but not vote for governor, in order to magnify the effect of their vote.  Apparently many did this because some 32,500 more votes in total were cast for or against the amendment that in the governor's race.

7th Circuit: Challenge To Parsonage Allowance Dismissed For Lack of Standing

In Freedom From Religion Foundation v. Lew, (7th Cir., Nov. 13, 2014), the U.S. 7th Circuit Court of Appeals dismissed for lack of standing an Establishment Clause challenge to the constitutionality of the federal tax code's parsonage allowance for clergy.  The co-presidents of FFRF, and organization of atheists and agnostics, received part of their salaries as a housing allowance, but they never sought to exclude the income on their federal income tax returns and did not file a claim for a tax refund. Therefore the IRS and the Tax Court never had a chance to interpret the scope of the exemption. According to the court:

A person suffers no judicially cognizable injury merely because others receive a tax benefit that is conditioned on allegedly unconstitutional criteria, even if that person is otherwise “similarly situated” to those who do receive the benefit. Only a person that has been denied such a benefit can be deemed to have suffered a cognizable injury.

Courthouse News Service reports on the decision. [Thanks to Steveh H. Sholk and To Rutledge for the lead.]

District Court Strikes Down South Carolina Same-Sex Marriage Ban; 8-Day Stay Granted

In Condon v. Haley, (D SC, Nov. 12, 2014), a South Carolina federal district court struck down South Carolina's ban on same-sex marriage. The court held that the 4th Circuit's decision in Bostic v. Schaefer striking down a similar ban in Virginia is controlling. However the court granted a stay until Nov. 20 to allow the state to seek a stay pending appeal from the 4th Circuit. The State reports that South Carolina Attorney General Alan Wilson says he will appeal to the 4th Circuit.