Rhode Island Supreme Court Rejects Firefighters' Objections To Riding In Pride Parade

In Fabrizio v. City of Providence, (RI Sup. Ct., Dec. 19, 2014), the Rhode Island Supreme Court dismissed a suit brought by two Catholic firefighters who objected on religious grounds to serving as part of the crew on a fire engine in a gay pride parade. They contended that "their beliefs as Catholics do not allow them to “support, encourage, nor condone homosexual behavior.'" The Court said, however:

The respondents' appearance in the parade, solely as members of the Providence Fire Department, did not constitute a form of expression on their part. Rather, it was simply the accomplishing of a task assigned to an engine company of the Providence Fire Department, and the individuals chosen to carry out that assignment cannot be said to have engaged in personal speech by carrying out their work as public servants.

Courthouse News Service reports on the decision.

District Court Enjoins Latest ACA Non-Profit Contraceptive Coverage Mandate Accommodation

In Catholic Benefits Association LCA v. Burwell, (WD OK, Dec. 29, 2014), an Oklahoma federal district court granted a preliminary injunction against the latest Affordable Care Act contraceptive mandate accommodation to a Catholic nonprofit association that was formed to assist Catholic employers in providing health benefits.The court said:

Although CBA members may be “effectively exempt” from directly providing contraceptive services if they comply with the notification requirement, they are not exempt from the notification requirement itself. This requirement also violates their religious beliefs because, they argue, it requires them to be complicit in indirectly providing their employees with contraceptive services.

After thus finding a substantial burden on plaintiffs' religious exercise, the court concluded that prior 10th Circuit precedent (its decision in  Hobby Lobby) has held that the government does not  have a compelling interest in requiring contraceptive coverage, and the Supreme Court in Hobby Lobby did not conclusively rule otherwise.

Former Navy Instructor Sues Claiming Anti-Muslim Bias

CAIR has announced the filing last week of a religious discrimination lawsuit against the United States Navy on behalf of a former barracks instructor whose reenlistment was blocked.  The complaint (full text) in Berts v. Mabus, (ED CA, filed 12/23/2014) alleges that the plaintiff Jonathan Berts, an African-American Muslim, was denied his request to wear a beard as a religious accommodation. For four years prior to making has religious accommodation request, Berts had worn a beard under a medical waiver. He alleges that after his religious accommodation request was denied, his commander refused to promote him, subjected him to questions about his beard, to racist and anti-religious jokes, and questioned his loyalty to the United States.  He was removed from his teaching duties and assigned to watch duty in a roach-infested building guarding piles of old office equipment.  Berts claims his treatment burdened his religious exercise in violation of RFRA and the Administrative Procedure Act and seeks a return to active duty along with an accommodation to allow him to grow a beard.

Uncertainty Continues On Religious Expression In the Military

Stars and Stripes yesterday reports at length on the ambiguity in the military's current policy on expression of religious speech that is illustrated by a mandatory suicide prevention briefing last month for soldiers at Ft. Benning. At the session, a chaplain, Capt. Joe Lawhorn, told members of a Ranger battalion that faith in Jesus is what helped him through depression, though he also presented non-religious methods of combating suicide. Handouts to soldiers were a sheet which on one side gave secular suicide prevention tips, and on the other presented Christianity as the solution. According to Stars and Stripes:

After the incident was publicized by the Military Association of Atheists and Freethinkers advocacy group, Fort Benning’s command warned the chaplain to cool the religious content in mandatory briefings.

In response, Lawhorn’s attorney, Michael Berry — of the Liberty Institute, a competing advocacy group — cited the wording in the [military's] new policy in a letter demanding that the Army explicitly approve religious content in the chaplain’s briefings.

Recent Articles of Interest

From SSRN:

• Muhammad Munir, Rights of the Child: An Islamic Perspective on Preventing Violence, Abuse, and Exploitation of Children and Pakistani Law, (December 14, 2014).
• Lorenz Blume, Bernd Hayo & Stefan Voigt, Correlates and Determinants of Direct Democracy, (December 23, 2014).
• Kenneth L. Marcus, Higher Education, Antisemitism, and the Law, (December 22, 2014).
• Moslay Uddin & MD Ayatullah, Muslim Law: Judicial and Legislative Changes Around the World, (December 17, 2014).
• Peter Hostettler, The Protection of Cultural Property in Armed Conflict and Peace Operations – Achievements and Challenges Ahead, (December 24, 2014).
• Deborah A. Widiss & Andrew Koppelman, A Marriage by Any Other Name: Why Civil Unions Should Receive Federal Recognition, (Indiana Journal of Law and Social Equality, Forthcoming).
• Tristin Green, On Employment Discrimination and Police Misconduct: Title VII and the Mirage of the 'Monell Analogue', (Boston University Law Review, 2015, Forthcoming).

Defendant's Failure To Touch Bible During Oath Leads NJ High Court To Remand

In Davis v. Husain, (NJ Sup. Ct., Dec. 23, 2014), the New Jersey Supreme Court remanded a case to the trial court for a different judge to consider whether religious considerations tainted a $12,500 verdict in a sexual harassment suit by a woman against her former employer. As described by the Supreme Court:

After the verdict was rendered and the jury was discharged, but before post-trial motions were argued and the judgment was entered, the trial judge conducted an ex parte discussion with the jurors, which was not recorded. According to the judge, one juror noted during that discussion that she was surprised that defendant had not placed his hand on the Bible before he testified. The judge did not make a record of the juror’s observation, but he did inform counsel as later events reveal.

The court indicated in a footnote:

Husain’s certification, submitted during post-verdict motion practice, indicates that Husain’s action was based on his religious beliefs. He states that it is his religious belief that the left hand should never be placed on a holy book.” He also states that he is “of Indian descent and the left hand is not used for any official purpose because of our culture.” 

The Supreme Court also banned for the future any post-verdict communications between a trial judge and jurors outside the presence of counsel. New Jersey Advance Media reports on the decision.

Recent Prisoner Free Exercise Cases

In McElroy v. Mathena, 2014 U.S. Dist. LEXIS 175956 (WD VA, Dec. 22, 2014), a Virginia federal district court dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint regarding his removal from the Ramadan fast list.

In Webb v. Californa Department of Corrections, 2014 U.S. Dist. LEXIS 177044 (ED CA, Dec. 22, 2014), a California federal magistrate judge dismissed with leave to amend an inmate's complaint regarding lack of funds, denial of religious items, chapel time and outdoor worship space for the Asatru/Odinic religion.

Airlines Facing Religious Objections By Passengers

At least two instances have been reported in the past ten days in which U.S. airlines have had to deal with passengers who have become unruly because of religion-related objections to some aspect of the flight.  The New York Post reports on an incident last Tuesday in which American Airlines escorted a passenger off a flight he had just boarded at LaGuardia Airport.  The passenger, despite attempts to calm him, continued to shout at the flight crew objecting to the gate agent and flight attendant wishing passengers "Merry Christmas." He shouted that not everyone celebrates Christmas. Passengers applauded his ouster from the plane.

Meanwhile Failed Messiah reports on a December 20 incident at New York's JFK Airport on a Delta flight to Israel. Haredi (Jewish ultra-Orthodox) men refused to take their assigned seats that turned out to be between two women. Other passengers, many of them Israeli, refused to move. The flight finally took off 30 minutes late after an American passenger changed seats to accommodate the men.

Top Dozen Church-State and Religious Liberty Developments In 2014

Each year in December, I attempt to highlight the most important  Church-State and Religious Liberty Developments of the past year.  Usually I identify the top ten stories.  This year however was so full of important developments that I have had to increase my nominations to the Top Dozen.  As always, I invite reader feedback on my selections and omissions.  Here they are:

1. The Supreme Court's Hobby Lobby decision allowed closely-held corporations to assert religious exercise rights of their owners.

2.  In the wake of the Supreme Court's Windsor decision, lower courts strike down same-sex marriage barriers in an increasing number of states.  The 6th Circuit is the main dissenter.

3.  Religiously-affiliated schools, hospitals and charities continue to object that administrative accommodations to the Affordable Care Act contraceptive coverage mandate are insufficient to protect their religious liberty rights.  Dozens of cases are in litigation over the issue.

4. In Town of Greece case, Supreme Court upholds non-coercive sectarian invocations at city council meetings.

5. The increasing strength of ISIS in Syria, Iraq and elsewhere threatens religious minorities in the Middle East and revives dream of a Caliphate.

6.  State RFRA proposals become more controversial as they clash with LGBT rights.

7.  Challenges to Internal Revenue Code parsonage allowance and church filing exemptions survive constitutional attack for plaintiffs' lack of standing.

8.  Satanic Temple becomes player in battle to diversify religious displays on public property, participate in literature distribution in schools and assert other religious rights.

9.  Courts continue to uphold New Jersey and California bans on sexual orientation change therapy for minors.

10. 6th Circuit requires strict causation to prove religiously motivated hate crimes against Amish.

11. Series of cases challenging definition of "church plan" under ERISA threatens legality of several Catholic hospital pension plans.

12. NLRB decision announces new test for asserting jurisdiction over unionization efforts at religiously-affiliated colleges and universities.

Earlier this month Religion Newswriters Association released their list of the Top 10 Religion Stories in 2014. (They too selected 12 stories, finding ties in two instances.) UPDATE: Also see the year's top picks from Don Byrd at Blog From the Capital.

Employment Discrimination Claim Filed By Muslims Against Hertz In Minneapolis

The Minneapolis Star-Tribune reports on an employment discrimination lawsuit filed Tuesday against Hertz Corp. by five Somali-American Muslims and an Ethiopian Muslim, all of whom were fired in 2007 from their jobs cleaning and servicing Hertz vehicles at Minneapolis-St. Paul International Airport after a dispute about overtime. The suit claims that Hertz managers interrupted their prayers, regularly demeaned their religion and imposed arbitrary prayer times and rules on Muslims. The EEOC issued plaintiffs a right-to-sue letter in September after years reviewing complaints.

Jehovah's Witness Title VII Claim Survives Summary Judgment Motion

In Shepherd v. Gannondale, (WD PA, Dec. 22, 2014), a Pennsylvania federal district court refused to grant summary judgment to defendant, a Catholic residential care facility, in a suit by a former employee, a Jehovah's Witness, alleging religious discrimination.  Plaintiff Sharon Shepherd worked as a Fiscal Supervisor for defendant, Gannondale, until she was terminated or forced to resign.  Gannondale is a ministry of the Sisters of Our Lady of Charity which provided holistic and therapeutic care for young women placed by the court. It operated using the "Sanctuary Model of Trauma Informed Care" which involves "community meetings" which all clients and staff were required to attend. Shepherd stopped attending community meetings in the Fall of 2012 because she concluded they involved too much "anti-Christian content" for her to be a part of them.  She disagreed in general with the Sanctuary Model because it was not based on Biblical teachings.

The court concluded that Shepherd had stated a prima facie case of disparate treatment based on religion as well as a claim of failure to accommodate her desire to be excused from community meetings.  The court said in part:

Defendant appears to be invoking a sort of “esprit de corps” argument that has never been applied outside the context of the military and the police force....  No doubt every employer would argue that allowing even one employee to be excused from an organization-wide practice would undermine that practice as a whole and might encourage other employees to seek exemptions. Nevertheless, Title VII requires reasonable accommodation of employees’ sincerely held religious beliefs unless an employer demonstrates that such accommodation would subject it to an undue hardship..... Defendant’s argument would allow the undue hardship exception to swallow the rule of religious accommodation and it is rejected.

Obamas Send Christmas Greetings

The White House today posted Weekly Address: Happy Holidays from the President and First Lady (transcript) (video). The President said in part:

... today, our family will join millions across the country in celebrating the birth of Jesus – the birth not just of a baby in a manger, but of a message that has changed the world: to reach out to the sick; the hungry; the troubled; and above all else, to love one another as we would be loved ourselves.

He also thanked American troops as the combat mission in Afghanistan comes to an end:

... as our troops continue to transition back home—back to our businesses, our schools, our congregations, and our communities—it’s up to all of us to serve them as well as they have served us.

The First Lady urged Americans to go to the JoiningForces website for more information on supporting troops, veterans and military families.

Meanwhile, The Independent reports that in Britain the Queen's annual Christmas message will be broadcast this afternoon. Channel 4's Alternative Christmas Message was given this year by British Ebola survivor William Pooley. The Queen is likely to praise aid workers fighting Ebola and is also likely to highlight this year's commemoration of the 100th anniversary of the start of World War I.

State Freedom of Conscience Clause Does Not Cover Environmentalist Who Refuses To Mow Lawn

In Gul v. City of Bloomington, (IN App., Dec. 22, 2014), an Indiana state appellate court rejected constitutional and statutory challenges to a city ordinance that prohibits grass in yards from being over 8 inches tall.  Environmentalist Alexander Gul claimed, among other things, that the citation he received for for refusing to mow his lawn violated his free expression rights and his freedom of conscience protected by the Indiana constitution. The court recounts:

Gul allows his yard to grow naturally and does not apply chemicals, mow, water, or fertilize it. He explains that his decision to maintain a natural yard is a statement of his sincerely held environmental belief that the overuse of chemicals, water, and lawnmowers to maintain a traditional lawn is harmful to the environment.

Bloomington officials disagree and view Gul’s yard as merely overgrown.

Rejecting Gul's under the state constitution's conscience clause, the court said:

... we find that Article 1, Section 3 was intended to apply to religious, rather than non-religious, matters of conscience. But even if it includes non-religious matters of conscience, it protects only the right to hold one’s own opinions, and does not protect the right to act on one’s own opinions in contravention of the law. 

Lawsuit Challenges Courthouse Lawn Nativity Scene

Despite a disclaimer placed on the courthouse lawn Nativity Scene in Baxter County, Arkansas (see prior posting), this week a federal court lawsuit was filed challenging the display on Establishment Clause grounds.  The complaint (full text) in American Humanist Association v. Baxter County, Arkansas, (WD AR, filed 12/23/2014), alleges that: "Religious and specifically Christian elements overwhelmingly dominate the County’s annual Nativity Scene display." It contends that a purported 2-month lease of the property on which the display stands to the Chamber of Commerce for $1 is "a sham attempt to insulate the County from responsibility...." Last year the County refused to allow two county residents to place a Happy Solstice Banner near the Nativity Scene. AP reports on the lawsuit.

DC Court of Appeals Grants Default Judgment Against North Korea In Torture Death of Christian Missionary

In Kim v. Democratic People's Republic of Korea, (DC Cir., Dec. 23, 2014), the Court of Appeals for the D.C. Circuit awarded a default judgment against North Korea to the family of Reverend Dong Shik Kim who allegedly was abducted from China by North Korean agents, taken to a North Korean labor colony, tortured and then killed. Kim, a Christian missionary, was allegedly targeted for providing humanitarian aid to North Korean defectors and refugees who fled to China seeking asylum, and for his proselytizing defectors.  According to a 2008 Washington Post article:

Kim, whose wife and two children are U.S. citizens, had raised the ire of the North Korean government by helping its citizens flee the repressive regime and by attempting to convert North Korean athletes who attended the 1996 Olympic Games in Atlanta.

The suit against North Korea was based on the "terrorism exception" to the Foreign Sovereign Immunities Act, allowing suits based on allegations of torture. The appeals court found that plaintiffs had produced sufficiently satisfactory evidence of torture to satisfy the requirements for entering a default judgment. The court concluded:

If the DPRK is unhappy with that outcome and has evidence that it has not tortured and killed Reverend Kim, it, like any defendant in default, may ask the district court to vacate that judgment under Federal Rule of Civil Procedure 60(b).

McClatchy News reports on the decision.

Court Orders Sikh Temple Meeting With Quorum Requirement Dropped

According to the Marysville, California Appeal-Democrat, a Sutter County, California state trial court judge last Friday issued an interim order in a dispute over control of a Sikh Temple in Yuba City.  Members who have wanted to hold a meeting to challenge action of the Temple's board of directors have been unable to do so because of the by-laws' unrealistic quorum requirement.  The bylaws require a quorum of over 50% of the formal members of the Temple.  A membership list compiled in 2008 lists over 4400 members, many of whom have died or moved away.  Only 500 people are signed up to receive the Temple's monthly newsletter.  An attempt to obtain a quorum in May 2013 led to 2000 people showing up, but a number still short of a quorum.  The court Friday ordered a special meeting of members to be held, and ordered the Temple to drop the quorum requirement for the meeting. The Temple's attorney argues that the interim order is unconstitutional because it infringes on the Temple's internal governance.

Jury Awards Catholic School Teacher Fired For In Vitro Fertilization Damages of $1.95M

The Fort Wayne (IN) Journal Gazette reports that a federal jury last Friday awarded former Catholic school teacher Emily Herx $1.95 million in damages in her Title VII sex discrimination claim against the Diocese of Fort Wayne-South Bend. Herx's teaching contract was not renewed after she became pregnant through in vitro fertilization. The Catholic Church considers in vitro fertilization immoral, and the Diocese argued that Herx had agreed to uphold Catholic teachings. Herx argued that the Diocese would not have refused to renew a male teacher's contract under the same conditions. While finding substantial actual damages, the jury awarded Herx only a nominal $1 in punitive damages.  It is likely that the Diocese will appeal the decision. (See prior posting.) [Thanks to Wall of Separation for the lead.]

NLRB Announces New Test For Jurisdiction Over Religious Colleges

In an important decision handed down last week, the National Labor Relations Board-- interpreting the U.S. Supreme Court's 1979 decision in NLRB v. Catholic Bishop of Chicago-- developed a new test for when the Board will assert jurisdiction over religiously-affiliated colleges.  In a 3-2 decision in Pacific Lutheran University, (NLRB, Dec. 16, 2014), the Board held:

... when a college or university argues that the Board cannot exercise jurisdiction over a petitioned-for unit of faculty members because the university is a religious one, the university must first demonstrate, as a threshold requirement, that First Amendment concerns are implicated by showing that it holds itself out as providing a religious educational environment.  Once that threshold requirement is met, the university must then show that it holds out the petitioned-for faculty members themselves as performing a specific role in creating or maintaining the college or university’s religious educational environment, as demonstrated by its representations to current or potential students and faculty members, and the community at large.

Applying this test, the majority held that

... although [Pacific Lutheran University] meets the threshold requirement of holding itself out as creating a religious educational environment, it does not hold out the petitioned-for contingent faculty members as performing a religious function in support of that environment.

In a dissenting opinion, Member Johnson said in part:

The majority decision today represents yet another effort to push back against the Supreme Court’s mandate that we avoid striving for jurisdictional boundaries that could violate the First Amendment. Although the majority announces its intent to “articulate a new test that is . . . faithful to the holding of Catholic Bishop,” the majority’s new test falls short in that goal in many regards.

Member Miscimarra, dissenting in part, agreed with this portion of Member Johnson's dissent.  The Board's decision also rejected the argument that the faculty involved were exempt managerial employees.

Chronicle of Higher Education reports on the NLRB's decision. [Thanks to Larry Hansen for the lead.]

Court Says Muslim Witness Cannot Take Oath On Quran

Today's Legal Intelligencer reports on a decision by a Pennsylvania trial court judge holding that a Muslim woman could not take her oath as a witness using the Quran. In Musaitef v. Musaitef, (Philadelphia County, PA Common Pleas), the court read 42 PA.C.S. Sec. 5901 strictly to require that the witness either take the oath on the Christian Bible or else make a non-religious affirmation. The case, a custody dispute between a Muslim mother and Muslim father, is still ongoing.  The father, who took his oath on the Bible, raised the objection to the mother using the Quran.  Apparently the mother's insistence on a Quran was intended to suggest that the father's testimony was untruthful because his Islamic faith included the belief that oaths taken on non-Muslim religious books do not bind him to tell the truth.

British Tax Tribunal: Company Can Assert Religious Rights As Alter Ego of Owner

In Exmoor Coast Boat Cruises Ltd. v. Commissioners for Her Majesty's Revenue & Customs, (UK FTT, Dec. 17, 2014), the United Kingdom First-Tier Tribunal Tax Chamber held that a business entity can assert religious liberty rights where it is the alter ego of a natural person (or possibly a group of persons) whose rights are being infringed.  At issue was whether Exmoor Coast, a company, solely owned by Matthew Oxenham, could claim an exemption from mandatory electronic filing of Value Added Tax returns. VAT regulations permit paper filing by any "practising member of a religious society or order whose beliefs are incompatible with the use of electronic communications...."

The court concluded that while the alter ego test was met, it was not shown that the electronic filing requirement interferes with Oxenham's manifestation of his religion or belief. His objections relate to the amount of CO2 created by the Internet and its impact on climate change.  However Oxenham was willing to use the Internet for some purposes.  The court concluded:

... it was [Oxenham's] belief that the internet should not be used save where he judged it economically necessary to do so.... [T]hat belief does not attain a level of cogency, seriousness, cohesion and importance such that it should be protected. This is because his belief ... is not so strongly held that he will make economic sacrifices for it; further, [Article 9 of the European Convention on Human Rights] cannot have been intended to protect a belief system which allows the practitioner to pick and chose when it suits him to adhere to his principles as that would amount to allowing people to pick and choose when they can be compelled to obey the law.

Law & Religion UK has more on the case.