Recent Articles of Interest

From SSRN:

• Rene F. Najera & Dorit Rubinstein Reiss, First Do No Harm: Protecting Patients Through Immunizing Health Care Workers, (February 8, 2015).
• Seval Yildirim, Conceptions of Religion in the Secular State: Evolving Turkish Secularism, (Pepperdine Law Review, Vol. 41, No. 1049, 2014).
• William P. Marshall, Bad Statutes Make Bad Law: Hobby Lobby v. Burwell, (Supreme Court Review, Vol. 2014).
• Andrew Koppelman, Theorists, Get Over Yourselves: A Response to Steven D. Smith, (41 Pepperdine Law Review 937 (2014)).
• Tom Syring, Introductory Note to the European Court of Human Rights’ Judgment on the Legality of a Ban on Wearing Full-Face Veils in Public (Case of S.A.S. v. France), (53 International Legal Materials 1025 (2014)).
• Douglas NeJaime & Reva Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, (Yale Law Journal, Vol. 124, 2015 Forthcoming).

From SmartCILP:

• Michael J. Davidson, Sanctuary: A Modern Legal Anachronism (.pdf download), 42 Capital University Law Review 583-618 (2014).
• Roza Pati, Marshalling the Forces of Good: Religion and the Fight Against Human Trafficking, (Abstract), 9 Intercultural Human Rights Law Review 1-23 (2014).
• Sr. Eugenia Bonetti, Women Helping Women: The Italian Experience of Women Religious in Combating Human Trafficking and Modern-Day Slavery, (Abstract), 9 Intercultural Human Rights Law Review 25-39 (2014).
• Fr. Jude O. Ezeanokwasa, The Priest-Penitent Privilege Revisited: A Reply To the Statutes of Abrogation, (Abstract), 9 Intercultural Human Rights Law Review 41-102 (2014).

6th Cirucit Upholds Damage Award To Critic of Judge For Expressing Religious Views

In Pucci v. Nineteenth District Court, (6th Cir., Feb. 13, 2015), the U.S. 6th Circuit Court of Appeals affirmed the $734,000 damage award to court employee Julie Pucci who was fired after she complained to the Michigan State Court Administrative Office about Judge Mark W. Somers' expressing of religious views in the course of performing his judicial duties. It also affirmed the award of over $416,.000 in attorneys' fees. The court upheld the jury's findings that in complaining to SCAO, Pucci was speaking as a citizen on a matter of public concern. (See prior related posting.)

Tennessee Supreme Court Upholds Spiritual Healing Exemption Interpreted Narrowly

In State of Tennessee v. Crank, (TN Sup. Ct.,Feb. 13, 2015), the Tennessee Supreme Court upheld the conviction and sentence to 1-year probation of Jacqueline Crank, a member of the Universal Life Church, who was indicted for child neglect based upon her failure to obtain medical treatment for her daughter.  Her daughter died at age 15 of a rare form of cancer.  Crank argued for acquittal based on Tennessee's "spiritual treatment" statute, TN Code Ann.39-15-402(c), that prevents prosecution of parents who "provide[] treatment by spiritual means through prayer alone in accordance with the tenets or practices of a recognized church or religious denomination by a duly accredited practitioner thereof in lieu of medical or surgical treatment." The trial court however held that the Universal Life Church did not qualify as a "recognized church or religious denomination."  Crank appealed arguing that the exemption is unconstitutionally vague, and violates the Establishment and Equal Protection Clauses.  The Tennessee Supreme Court rejected the vagueness argument, holding:

Viewed in context, it is apparent that the legislative intent was for the exemption to apply to members of religious bodies which, like the Church of Christian Science, are established institutions with doctrines or customs that authorize healers within the church to perform spiritual treatment via prayer in lieu of medical care. Because the exemption is effectively limited to members of religious groups that closely resemble the Christian Science Church, the terms at issue are not so vague that the scope of the exemption “cannot be ascertained.”

Then, addressing Crank's argument that the exemption narrowed in this way violates the Establishment Clause and Equal Protection Clause, the Supreme Court said it need not decide that question because, even if Crank is correct, this would lead to elision of the entire spiritual treatment exemption from the child neglect statute. The Court issued a press release and summary of the decision. AP reports on the decision.

Recent Prisoner Free Exercise Cases

In Banks v. Secretary Pennsylvania Department of Corrections, (3d Cir., Feb. 9, 2015), the 3rd Circuit affirmed the dismissal of a Muslim inmate's challenge to prison policies on participation in feasts of Eid al-Fitr and Eid al-Adha, and to the use of prayer oils during religious services.

In Harris v. Pimentel, 2015 U.S. Dist. LEXIS 15338 (ED CA, Feb. 9, 2015), a California federal magistrate judge recommended refusing to strike an inmate's complaint that his cell was searched and his Qur'an kicked under the bed, defiled with a boot mark.

In Richardson v. Cheshire County, 2015 U.S. Dist. LEXIS 15903 (D NH, Feb. 6, 2015), a New Hampshire federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 15902, Jan. 14, 2015) and dismissed a Muslim inmate's complaint regarding the meals he received during Ramadan.

In Abdulkarim v. Metropolitan Sheriff Department, 2015 U.S. Dist. LEXIS 16609 (MD TN, Feb. 11, 2015), a Tennessee federal district court allowed an inmate to proceed with his claim that his jail will not provide religious services for Muslim inmates.

In Woodside-Fisher v. Pulley, 2015 U.S. Dist. LEXIS 17319 (WD CA, Feb. 12, 2015), a California federal district court, adopting a magistrate's recommendation, dismissed an inmate's complaint that his food was tampered with because it was a halal food tray, his non-halal tray was not replaced on 3 occasions, an officer made remarks about his religion, and on one occasion he did not have time for a shower because he was praying.

In Gamble v. Kenworthy, 2015 U.S. Dist. LEXIS 17587 (ED NC, Feb. 12, 2015), a North Carolina federal district court dismissed a Muslim inmate's complaint that control status inmates were not allowed to receive special food from outside the institution for Eid al Fitr.

In Scheeler v. Lehigh County Prison, 2015 U.S. Dist. LEXIS 17781 (ED PA, Feb. 12, 2015), a Pennsylvania federal district court dismissed for failure to exhaust administrative remedies and inmate's complaint that he was denied access to his Bible while in the Restricted Housing Unit for 9 days.

House Holds Hearing On RFRA and RLUIPA

Yesterday the House Judiciary Committee's Subcommittee on the Constitution and Civil Justice held a hearing titled Oversight of the Religious Freedom Restoration Act and the Religious Land Use and Instituionalized Persons Act.  The full text of the prepared statements of the four witnesses appearing at the hearing are available on the Committee's website.

Groups Seek Alabama Supreme Court Mandaumus To Stop Same-Sex Marriage Licenses

While Probate Judges in 50 of Alabama's 67 counties have begun to issue marriage licenses to same-sex couples, opposition to a federal district court's invalidation of the state's same-sex marriage ban has not ended.  The Alabama Policy Institute and the Alabama Citizens Action Program filed a petition (full text) with the Alabama Supreme Court on Wednesday seeking a writ of mandamus ordering county probate judges not to issue marriage licenses to same-sex couples or recognize licenses issued to them. The petition argues that fededral court injunctions aimed at the state's attorney general do not bind probate judges. The Supreme Court yesterday issued an order, with two justices filing dissenting opinions, (full text) ordering respondents to file answers by Feb. 18.  Justice Shaw dissenting said: "I would urge restraint and would urge this Court not to interject more confusion into what is already a very confusing situation."  Also yesterday Equality Alabama filed and amicus brief (full text) urging dismissal of the petition. Meanwhile, a Mississippi Ku Klux Klan faction called for support of efforts to defy federal court same-sex marriage rulings.

Rabbi May Be Charged In Up To 88 Cases of Voyeurism

Times of Israel reports on a closed-door meeting held Wednesday evening in Washington, D.C. between federal prosecutors and alleged victims of Rabbi Barry Freundel who was arrested in October for secretly photographing women using the mikveh at Washington's Kesher Israel Synagogue. (See prior posting.)  Currently Freundel has been charged with six misdemeanor counts of voyeurism under D.C. Code Sec. 22-3531(b)-(c).  However, those attending were told that Freundel taped a total of 152 women. Prosecutors say that charges may be filed in a total of 88 of the cases. Either the statute of limitations has run, or the victim cannot be identified, in the other 64 cases. If convicted, Freundel could be sentenced to a $1000 fine and one year in jail on each count.  Prosecutors may negotiate a plea deal, but they say it would have to include jail time. If the cases go to trial, victims would have to identify themselves in the videos, and would be subject to cross-examination.

New Museum of the Bible Being Built In Washington, D.C.

A privately financed $400 million Museum of the Bible is being constructed in Washington, D.C. according to a report today from Haaretz. The Museum, which will be located three blocks from the U.S. Capitol in a historic warehouse that is being extensively renovated, is being built by Steve and Jackie Green, owners of Hobby Lobby stores.  It will house the 40,000 item collection of rare printed Bibles, manuscripts, Torahs and Dead Sea scroll fragments belonging to the Greens who are Southern Baptists. The Museum will feature permanent exhibits focusing on the impact, history and narrative of the Bible, as well as rotating displays. Scheduled to open in November 2017, the Museum plans to collaborate with Jewish organizations.

European Court Says Bulgaria's Treatment of Word of Life Member Violated Religious Freedom

In Dimitrova v. Bulgaria, (ECHR, Feb. 10, 2015), the European Court of Human Rights in a Chamber Judgment held that police action against a member of the Word of Life church violated her religious freedom rights protected by the European Convention on Human Rights. As recounted by the Court:

[A] complaint was submitted to the office of the Sofia City Public Prosecutor by the Directorate of Religious Denominations with the Council of Ministers, raising concerns about the activities of Word of Life in Bulgaria. ... [H]aving carried out an investigation, the prosecutor’s office adopted a decision stating that the “sect” had an influence on its followers which increased the risk of suicide and other psychological problems. Membership might lead to the severance of family and social ties with the wider community; followers were prohibited from watching television or reading literature other than the Bible or from undergoing any form of surgical intervention. In conclusion, the prosecutor decided to order the restriction of the right of members of the three organisations linked to Word of Life from assembling to promote their beliefs and from continuing to operate the Bible study centre....

[T]he applicant was summonsed to appear at the police station and ... a search of her flat was carried out, with a number of personal items seized, for the sole reason that she was known to be a member of the Word of Life community and had organised religious meetings at her home. Following the search, she was issued by the police with an order warning her not to host further meetings of Word of Life.... In these circumstances, since the police action was taken in direct response to the applicant’s manifestation of her religious belief and was intended to discourage her from worshipping and observing her religion further in community with others, the Court finds that it constituted a limitation on her freedom to manifest religion within the meaning of Article 9 § 2.

Law & Religion UK has more on the decision.

Federal District Court Orders Alabama County To Resume Issuing Marriage Licenses

In Alabama, marriage equality litigants have finally found the procedural key to obtaining an injunction to require Mobile County Probate Judge Don Davis to open the marriage license division and issue marriage licenses to same-sex couples.  On Feb. 10, plaintiffs amended their complaint in their case challenging Alabama's same-sex marriage laws to name Judge Davis as a defendant. Two days later in Strawser v. Strange, (SD AL, Feb. 12, 2015)-- the case that had already led to an injunction against the attorney general-- the court issued a preliminary injunction barring Judge Davis, and "all his officers, agents, servants and employees, and others in active concert or participation with any of them" from refusing to issue marriage licenses to same-sex couples.

Meanwhile yesterday morning (before the district court issued its injunction against Judge Davis), Alabama Supreme Court Chief Justice Roy Moore gave a lengthy interview (full transcript) to CNN anchor Chris Cuomo, reiterating his view that Alabama courts are not bound by the district court decisions recognizing same-sex marriage.

Canadian Court Invalidates No-Veil Policy In Taking Citizenship Oath

According to yesterday's Regina Leader-Post, a Canadian Federal Court has struck down the Canadian government's policy of requiring women who wear a face veil for religious reasons to remove it when they take the oath of Canadian citizenship. In a suit brought by a Sunni Muslim woman who immigrated to Canada from Pakistan, the court held that the policy violates the government's own citizenship regulations.  Those regulations require "the greatest possible freedom in the religious solemnization" in taking the oath. (See prior related posting.)

Challengers Move Toward Success In Fraud Suit Against Conversion Therapy Provider

Plaintiffs in recent days have won two important state court victories in a New Jersey consumer fraud lawsuit against an organization that offers "conversion therapy" to gay men. In Ferguson v. JONAH (Jews Offering New Alternatives For Healing), (NJ Super. Ct. Feb. 5, 2015), the trial court ruled that expert testimony of five proposed witnesses, and part of the expert testimony of a sixth, should be excluded at trial.  The court said in part:

[T]he theory that homosexuality is a disorder is not novel but -- like the notion that the earth is flat and the sun revolves around it -- instead is outdated and refuted. Homosexuality was listed as a mental disorder in the DSM until its removal in 1973.... JONAH has not identified any case that provides a standard for the admission of obsolete and discredited scientific theories. By definition, such theories are unreliable and can offer no assistance to the jury, but rather present only confusion and prejudice.

A Southern Poverty Law Center press release has more details.

Plaintiffs' second win came in  Ferguson v. JONAH (Jews Offering New Alternatives For Healing), (NJ Super. Ct. Feb. 10, 2015).  The court granted partial summary judgment to plaintiffs, holding in part that:

it is a misrepresentation in violation of the CFA [Consumer Fraud Act], in advertising or selling conversion therapy services to describe homosexuality ... as being a mental illness, disease, disorder, or equivalent thereof....

The court also held that it is a CFA violation to advertise conversion therapy success statistics when there is no factual basis for calculating the statistics. As reported by The Advocate, a jury must still decide whether defendant made these kinds of misrepresentations. [See prior related posting.]

Russian Supreme Court Upholds Hijab Ban

According to World Bulletin, Russia's Supreme Court yesterday upheld the ban imposed by Russia's Mordovia region on the wearing of the hijab in schools. The appeal to Russia's top court was brought by the Muslim Tatar community in Mordovia.  The ban also applies to religious symbols, as well as to piercings, mini-skirts, jeans and bright-colored hair.

Former Prison Chaplain Pleads Guilty To Passing Messages From Imprisoned Hit Man

The Chicago Tribune reports that yesterday Roman Catholic priest and former prison chaplain Eugene Klein entered a guilty plea in an Illinois federal district court to charges of passing messages hidden in religious materials from an imprisoned mob hit man to a friend when the inmate was restricted in his contact with outsiders. The messages had to do with how to get a valuable violin out of a house that the federal government had seized. As part of his plea agreement, Klein reserved the right to appeal the trial court's refusal to dismiss the charges against him on constitutional grounds.

3rd Circuit Upholds ACA Contraceptive Coverage Accommodation For Religious Non-Profits

In Geneva College v. Secretary U.S. Department of Health and Human Services, (3d Cir., Feb. 11, 2015), the U.S. 3rd Circuit Court of Appeals upheld the Obama administration's accommodation under the Affordable Care Act for religious non-profits that object to furnishing contraceptive coverage. The court rejected claims by the non-profits that the accommodation imposes a substantial burden on their religious exercise in violation of RFRA.  The court said in part:

While the Supreme Court reinforced in Hobby Lobby that we should defer to the reasonableness of the appellees’ religious beliefs, this does not bar our objective evaluation of the nature of the claimed burden and the substantiality of that burden on the appellees’ religious exercise. This involves an assessment of how the regulatory measure actually works. Indeed, how else are we to decide whether the appellees’ religious exercise is substantially burdened? 

... [W]e cannot agree with the appellees’ characterization of the effect of submitting the form as triggering, facilitating, or making them complicit in the provision of contraceptive coverage. At oral argument, the appellees argued that it was not merely the filing of the form that imposed a burden, but, rather, what follows from it. But free exercise jurisprudence instructs that we are to examine the act the appellees must perform—not the effect of that act—to see if it burdens substantially the appellees’ religious exercise.

The court also rejected the argument that the regulations improperly partition the Catholic Church by preventing religious non-profits from claiming the total exemption available to the diocese with which they are affiliated. Pittsburgh Post-Gazette reports on the decision.

UPDATE: On May 6, the mandate was stayed (full text of order) pending U.S. Supreme Court action in Zubik v. Burwell which raises similar issues. (See prior related posting.)

Former NYPD Officer Sues Claiming Anti-Semitic Harassment From Co-Workers

JNS.org reported yesterday on a federal lawsuit filed last month by a former New York City Police Department officer charging that he was forced out of his position by six years of anti-Semitic comments and harassment from fellow officers.  The 26-page complaint (full text) in Attali v. City of New York, (SD NY, filed 1/21/2015), says that the abuse became particularly bad after plaintiff was assigned to the World Trade Center command in 2011.  It alleges, among other incidents, that beginning in January 2013:

Plaintiff ATTALI's co-workers, repeatedly, and without provocation, vandalized Plaintiff's locker at the WTC Command by writing hateful and abusive language and messages consisting of swastikas, newspaper clippings of pork, ham, salami and bacon advertisements, the word "DIRTY JEW" carved into an orange sticker and the following letters cut out of various newspaper headlines: "HAIL HITLER."

Georgia School Sued Over Classroom Prayers

As reported by the Atlanta Journal Constitution, on Monday the Freedom From Religion Foundation and a non-religious family filed suit against the Emanuel County, Georgia school system challenging a school's use of prayers in kindergarten and first grade classrooms.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Emanuel County School System, (SD GA, filed 2/9/2015), alleges that when parents complained about teachers' leading the classes in prayer, the teachers' response was to require objecting students to sit in the hallway while other students prayed.  The teachers also made comments in front of the class embarrassing to the objecting students, pressuring the first grader to pray with the rest of the class until her parents learned of the situation.  The suit seeks an injunction and damages for the school's violation of the Establishment Clause.

Kansas Governor Eliminates Anti-Discrimination Protection For LGBT State Employees

Yesterday Kansas Gov. Sam Brownback issued executive orders narrowing employment discrimination protections for state employees.  As reported by the Wichita Eagle and a press release from the governor's office, Brownback replaced former Gov. Kathleen Sebelius' employment practices order with a new one.  The new executive order eliminates the former ban on state employment discrimination on the basis of sexual orientation and gender identity, while continuing to ban various other types of discrimination.  According to the Governor:

This Executive Order ensures that state employees enjoy the same civil rights as all Kansans without creating additional ‘protected classes’ as the previous order did, Any such expansion of ‘protected classes’ should be done by the legislature and not through unilateral action.

Former Israeli Chief Rabbi Indicted For Bribery

YNet News reported yesterday that Israel's former Ashkenazi Chief Rabbi Yonna Metzger has been indicted for bribery, fraud and money laundering.  Israeli authorities charge that Metzger received bribes totalling 10M NIS ($826,000 US), of which he personally kept 70%.  The bribes came, among others, from wealthy businessmen seeking to convert to Judaism, and for other services he performed in his role as Chief Rabbi. Many of the bribes came in the form of donations to non-profit organizations tied to Metzger. (See prior related posting.)

India Supreme Court Upholds State Work Rule Barring Polygamy

In Khan v. State of U.P., (India Sup. Ct., Feb.9, 2015), a 2-judge bench of the Supreme Court of India upheld the constitutionality of a rule of the government of the state of Uttar Pradesh barring employees from having more than one wife.  The court held that while Muslim personal law may permit up to four wives, the rule does not violate the provision of Art. 25 of India's Constitution that protects the right to freely profess, practice and propagate religion. Quoting from an earlier decision, the Court said:

What is permitted or not prohibited by a religion does not become a religious practice or a positive tenet of a religion.... Assuming the practice of having more wives than one... is a practice followed by any community or group of people, the same can be regulated or prohibited by legislation in the interest of public order, morality and health or by any law providing for social welfare and reform which the impugned legislation clearly does.

The Economic Times reports on the decision.