Suit Charges Religious Discirmination In Cancellation of Hasidic Jews' Voter Registration

A class action lawsuit was filed yesterday in a New York federal district court by a group of Hasidic Jews against the Sullivan County Board of Elections that oversees voting in the small Village of Bloomingburg, New York.  According to Newsweek, in January the Board of Elections sent notices to 184 of the Village's 285 registered voters to show cause why the Board should not cancel their voter registrations. More than 160 of the voters receiving the notices are Hasidim.  Last month the Board announced that it would move ahead to cancel registrations of 156 of these voters-- comprising virtually every Hasidic Jewish resident of the Village.  The suit alleges that the voters were singled out only because of their religion.  A lawsuit filed last year charges the Village more generally with acting together with a neighboring town to keep more Hasidic Jews from moving into the area. (See prior posting.)

Failed Messiah blog says that the Village has good cause to cancel the voter registrations:

The suit is backed by Shalom Lamm, the Modern Orthodox developer [of a Bloomingburg housing project] who ... deceived (and, some say, bribed) his way past naive locals to get the original go-aheads for the project, which was always meant to be a 396-unit high density Satmar hasidic village but camouflaged as a low density 125-home golf course vacation and retirement community....

The hasidim who were disqualified from voting almost all claimed one of Lamm's private homes in the village as their residence, with more than a dozen adults showing the same single family home as their "official" residence. The property, however, showed no sign of regular habitation....

Challenge To Oklahoma 10 Commandments Monument Dismissed On Standing Grounds

An Oklahoma federal district court yesterday dismissed an Establishment Clause challenge to the Ten Commandments Monument located on the grounds of the Oklahoma State Capitol.  In American Atheists, Inc. v. Thompson, (WD OK, March 10, 2015), the court held that the individual plaintiff in the case lacks standing because she saw the Monument only once before filing suit, and then only because she went looking for it -- apparently in order to create standing to sue. The standing of American Atheists, Inc. depends on the standing of the individual plaintiff who was a member. Reacting to the decision, Oklahoma state Attorney General Scott Pruitt said: "The historical relevance of the Ten Commandments and the role it played in the founding of our nation cannot be disputed. I commend Judge Cauthron’s decision to rule in the state’s favor." AP reports on the decision.

Sheriff Tells Registered Sex Offenders To Attend Church At County Jail

In Graham County, North Carolina, the sheriff last month sent a letter (full text) to the 20 registered sex offenders in his county telling them that a North Carolina law barring offenders from being within 300 feet of premises where minors are supervised means that they may not attend church. The letter continues:

This is an effort to protect the citizens and children of the community.... That is why I am letting you know that if you want to go to a church service you are welcome to come to the Graham Co. Jail on Sunday's to attend church services.

Reporting yesterday, WCNC News  says that Sheriff Danny Millsaps now concedes that his wording may not have been totally correct, but he stands by his interpretation of the law.

7th Circuit: Milwaukee Archdiocese Cannot Protect Cemetery Trust Funds In Bankruptcy

In Listecki v. Official Committee of Unsecured Creditors, (7th Cir., March 9, 2015), the U.S. 7th Circuit Court of Appeals ruled that $55 million held by the Archdiocese of Milwaukee in a perpetual care trust fund for maintaining Catholic cemeteries is potentially available in bankruptcy to satisfy claims of clergy sex abuse victims.  The district court had held that the Archdiocese's free exercise rights under RFRA and the 1st Amendment would be infringed if the trust funds were made available to claimants. (See prior posting.)  The 7th Circuit held, however, that RFRA does not apply unless the government is a party to the suit, and that a creditors' committee in bankruptcy does not act "under color of law" as a governmental instrumentality.  It rejected the Archdiocese's 1st Amendment free exercise assertion, finding that the Bankruptcy Code's fraudulent transfer provisions are neutral and generally applicable. It further held that the Bankruptcy Code reflects a compelling governmental interest in the protection of creditors. AP reports on reactions to the decision.

Orthodox Jewish School Loses RLUIPA Zoning Challenge

In Joan Dachs Bais Yaakov Elementary School v. City of Evanston, (IL App., March 6, 2015), an Illinois appellate court rejected a RLUIPA challenge brought by an Orthodox Jewish elementary school after Evanston City Council refused zoning modifications that would allow the construction of a school on property in an industrial zone that plaintiff had purchased.  Rejecting the school's reliance on RLUIPA's equal terms provision, the court said:

Unlike its nonreligious comparators, the removal of the ... property from the property tax rolls would deprive Evanston of hundreds of thousands of dollars annually in property tax revenue at a time when approximately 40% of its land is already off the tax rolls. The generation of tax revenues is a legitimate concern of land-use regulation.... and, thus, renders JDBY, which is not subject to property taxes, dissimilar to its nonreligious comparators who are subject to such taxes.

The court also upheld a trial court finding that RLUIPA's nondiscrimination provisions had not been violated.  RLUIPA Defense blog has more on the decision.

8th Circuit Invalidates Missouri House of Worship Protection Act

In Survivors Network of Those Abused By Priests, Inc. v. Joyce,  (8th Cir., March 9, 2015), the U.S. 8th Circuit Court of Appeals held that Missouri's House of Worship Protection Act violates the 1st Amendment's free speech protections.  The statute, which prohibits "using profane discourse, rude or indecent behavior, or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship services," was challenged by groups and individuals who picket Catholic Churches over clergy sexual abuse and other issues.  The court concluded that the statute is a content-based restriction on speech and is thus subject to strict scrutiny.  The court added:

The broad sweep of the Worship Protection Act's ban ... can prevent significant messages from being publicly expressed, solely because they are offensive or disagreeable to some. Such risks are heightened near the places regulated by the Act—churches and buildings used for religious purposes. These locations are the most likely places for appellants to find their intended audience, including individuals who have personally been affected or victimized by instances of clerical sexual abuse and church employees with knowledge or information about abusive acts.

Kansas City Star reports on the decision.

Supreme Court GVRs Notre Dame's Appeal In Contraceptive Mandate Challenge

As previously reported, in October Notre Dame University filed a petition for certiorari with the U.S. Supreme Court in its challenge to the Affordable Care Act contraceptive coverage mandate as applied to religious non-profits.  However instead of seeking full review of the 7th Circuit's decision, the petition asked the Court to issue a so-called GVR order. Today the Supreme Court did just that.  In University of Notre Dame v. Burwell, (Docket No. 14-392) (Order List), the Court issued the following order:

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Seventh Circuit for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014). 

[Thanks to Marty Lederman vial Religionlaw for the lead.]

Israel's Rabbinate Loosens Religious Constraints On Hotels

In Israel, the chief rabbinate, under pressure from the organization Hiddush that promotes freedom of religion, has lifted a number of non-food related requirements that were in the past imposed on hotels in order for them to have their food and restaurants certified as kosher.  Haaretz reports that the Chief Rabbinate announced last Thursday that it has suspended former requirements that prohibited hotels from displaying Christmas trees, that prohibited Jewish employees from accepting money on the Sabbath and barred filming events on hotel premises on the Sabbath.

State RFRA Legislation Tracker Created

As a number of states consider new or amended religious freedom statutes, Don Byrd at the Baptist Joint Committee's Blog From the Capital has created an extremely useful State RFRA Bill Tracker. The Tracker, posted last week, follows both newly proposed RFRA laws as well as proposed amendments to existing ones-- with links to the bills.  It also links to all state RFRA laws that have already been enacted.  The page will follow the progress of the bills and highlight the key language at the core of each proposal.

Recent Articles of Interest

From SSRN:

• Zvi H. Triger, 'A Jewish and Democratic State:' Reflections on the Fragility of Israeli Secularism, (41 Pepperdine Law Review 1091 (2014)).
• Luke Beck, The Establishment Clause of the Australian Constitution: Three Propositions and a Case Study, (Adelaide Law Review, Vol. 35, No. 2, 2014, pp. 225-250).
• Rebecca Gould, Everyday Violence, Quotidian Grief: Patriarchal Bargains in Georgia’s Pankisi Gorge, (Women Living Under Muslim Laws Dossier 32-33: Sexualities, Culture and Society in Muslim Contexts, ed. Anissa Hélie 123-135).
• Sean McDivitt, Striking the Harmonious Chord for Corporate Social Responsibility and Individuals: Affirming Closely Held Corporations’ Religious Objections to the HHS Mandate, (Oklahoma City University Law Review, Vol. 39, No. 3, 2014).
• Paul Andrew Gwaza, Addressing the Boko Haram Insurgency in Nigeria: The Effectiveness or Otherwise for the Application of the Alternative Dispute Resolution (ADR) Techniques, (March 5, 2015).
• Lindsey H. Emerson, An Artifact or a Memorial: The Latin Cross and the Establishment Clause, (March 5, 2015).
• Caroline Mala Corbin, Exploiting Mixed Speech, (California Law Review Circuit, Vol. 103, 2015, Forthcoming).
• Julia Guenther, Gender and Globalization: Power Relations at India's Margins, (Journal of Developing Societies March 2015 31: 1-7).
• Seth Barrett Tillman, Letter from Seth Barrett Tillman to Ukip in Regard to Ukip's Supporting the British Veterinary Association (“BVA”) and Royal Society for the Prevention of Cruelty to Animals (“RSPCA”) in Calling for a Ban on Non-Stun Slaughter, (March 7, 2015).

From SmartCILP:

• Vicenc Feliu, Corporate "Soul": Legal Incorporation of Catholic Ecclesiastical Property in the United States: A Historical Perspective, 40 Ohio Northern University Law Review 441-465 (2014).
• Louis W. Hensler III, Flexible Interpretations of "The Powers That Be" From Constantine to Mandela and Beyond, 27 Regent University Law Review 43-102 (2014-2015).
• The Travels of Law: Indian Ocean Itineraries. Introduction by Renisa Mawani and Iza Hussin; articles by Julia Stephens, Iza Hussin, Fahad Ahmad Bishara, Rohit De and Riyad Sadiq Koya; afterword by Engseng Ho. 32 Law & History Review 733-889 (2014). 

Recent Prisoner Free Exercise Cases

In Spence v. Nelson, (5th Cir., March 5. 2015), the 5th Circuit affirmed the dismissal of a Shia Muslim inmate's complaint regarding an alleged unpublished prison mail room policy that prohibited inmates from receiving literature from Iran.  The court concluded that the named plaintiffs were not the policy makers responsible.

In Triplett v. LeBlanc, 2015 U.S. Dist. LEXIS 24468 (MD LA, March 2, 2015), a Louisiana federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 24663, Feb. 5, 2015) and dismissed an inmate's complaint that his free exercise and equal protection rights were infringed when he was reassigned and disciplined for not attending a scheduled church call-out for inmate ministers.

In Addis v. Arizona Department of Corrections, 2015 U.S. Dist. LEXIS 25519 (D AZ, March 2, 2015), an Arizona federal district court dismissed with leave to amend an inmate's complaint that trash, contraband or notes were sometimes placed in kosher meals.

In Hammer v. Keeling, 2015 U.S. Dist. LEXIS 25641 (ED VA, March 3, 2015), a Virginia federal district court dismissed an inmate's complaint over being temporarily removed from the Common Fare religious diet because he was found concealing a bell pepper in the front of his pants.

In Mitchell v. Cox, 2015 U.S. Dist. LEXIS 25871 (D NV, March 2, 2015), a Nevada federal district court permitted an inmate who identified as Jewish and Hebrew-Israelite to move ahead with complaints regarding kosher meals, denial of attendance at Sabbath services and restrictions on leaving his cell to observe Passover.

In Sutton v. VanLeeuwen, 2015 U.S. Dist. LEXIS 26367 (D CO, Feb. 25, 2015), a Colorado federal district court dismissed an inmate's complaint that his free exercise rights were infringed when he was forced to eat meat.

In Cullen v. Saddler, 2015 U.S. Dist. LEXIS 27459 (CD IL, March 6, 2015), an Illinois federal district court granted summary judgment to a pro se plaintiff who objected that while in prison he was required to participate in a religious 12-step program in order to be considered for additional good time credit. The court suggested that if further proceedings were necessary to decide whether plaintiff in fact suffered the $350 damages he claimed, that the parties should waive a jury trial.

In Adams v. Woodall, 2015 U.S. Dist. LEXIS 27719 (MD TN, March 4, 2015), a Tennessee federal magistrate judge recommended dismissing complaints of a Muslim inmate's complaints regarding denial of religious jewelry, denial of access to religious vendors and denial of a religious diet.

In Smith v. United States Congress, 2015 U.S. Dist. LEXIS 27818 (ED VA, March 6, 2015), a Virginia federal district court dismissed a complaint by a Nation of Islam inmate that Virginia state prison rules prevented him from purchasing CDs of sermons of Minister Farrakhan directly from The Final Call and barred Arabic language CDs.

In Lucas v. Director of Department of Corrections, 2015 U.S. Dist. LEXIS 27957 (ED CA, March 5, 2015), a California federal magistrate judge dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint that he has not received a religious diet.  The court held that an amended complaint filed after administrative remedies are exhausted cannot cure a prematurely filed original complaint.

Applying Holt v. Hobbs To A Complex Case-- The Demands of a Transgender Native American Inmate

A fascinating decision handed down by an Idaho federal district court last week shows the complexity faced by prisons in attempting to applying the U.S. Supreme Court's January RLUIPA decision in Holt v. Hobbs.  In Stover v. Corrections Corporation of America, (D ID, Feb. 27, 2015), the court was faced with demands by a Native American male-to-female transgender prisoner for use of the prison's sweat lodge for religious purposes.  According to the court:

Although Plaintiff receives female hormone therapy and has developed feminine characteristics such as breasts, she is incarcerated in a men’s prison because she remains anatomically male—she has not had sex reassignment surgery.

Defendants conceded that under RLUIPA barring plaintiff from engaging in a sweating ceremony is a substantial burden on the exercise of her Native American religious beliefs. According to the court:

Defendants offer two explanations for their decision to prohibit Plaintiff from using the sweat lodge to practice her religion. First, they argue that prohibiting Plaintiff from using the lodge is necessary to ensure her safety. The Court does not doubt that prohibiting Plaintiff from using the sweat lodge in the company of male inmates is justified by the compelling governmental interest of keeping Plaintiff safe from physical or sexual assault..... [I]nmates are generally not fully clothed in the sweat lodge, and prison staff cannot observe the inside of the lodge. Plaintiff has already been a victim of several sexual assaults in prison. As a transgender prisoner with feminine characteristics such as breasts, Plaintiff would be in serious and immediate danger if she were to sweat with the male inmates in the sweat lodge at the men’s prison in which she is confined. Ensuring a vulnerable prisoner’s safety is obviously a compelling governmental interest.

However the court was not convinced that prison authorities had satisfied the least-restictive-alternative test as interpreted by the Supreme Court. A volunteer chaplain had apparently offered to escort Plaintiff to the sweat lodge when it was not in use by others so she could carry out the ritual.  While that may well seem to be the kind of less restrictive alternative that the Supreme Court required in Holt, here there was another complexity:

[Defendants] argue that the religious beliefs of the other inmates, who use the only sweat lodge... would be violated by allowing Plaintiff to enter the sweat lodge at any time, even by herself.... "[S]ome Native American tribes believe that allowing a two-spirited person (an individual suffering from gender identify disorder or gender dysphoria) to enter a sweat lodge utilized by single-spirited individuals would desecrate the religious sanctity of the lodge." ... 

After careful consideration, the Court concludes that Defendants have not establish[ed] that burdening one individual’s religious practice in an attempt to avoid burdening another’s religious practice is a compelling governmental interest under RLUIPA. .... The Court is persuaded that government officials cannot avoid Plaintiff’s RLUIPA claim merely by citing other inmates’ religious concerns, particularly where, as here, the asserted justification is based on mere speculation as to what some other inmates might find religiously objectionable. 

UCLA Incident Highlights Campus Anti-Semitism

An article posted yesterday, the New York Times explores anti-Semitism on American university campuses.  The article focuses primarily on an incident last month at UCLA involving a meeting on the nomination of a Jewish student to the student Judicial Council. A student member of the Undergraduate Association Student Council began the question period by asking nominee Rachel Beyda: "Given that you are a Jewish student and very active in the Jewish community, how do you see yourself being able to maintain an unbiased view?" This led to a 40 minute debate by Council members, with Beyda sent out of the room. Eventually she was approved, but only after an initial split vote against her. The president of the UCLA Hillel chapter says that this anti-Semitism is a carryover from anti-Israel activity: "The problem is the anti-Israel culture in which we are singling out only the Jewish state creates an environment where it’s O.K. to single out Jewish students."

Indian Court Says Child Marriage Act Trumps Muslim Personal Law

Z News reports that in India, the Madras High Court has held that the Prohibition of Child Marriage Act 2006 takes precedence over the Muslim Personal Law (Shariat) Application Act 1937, upholding an order of a district child welfare officer preventing the marriage of a 17-year old girl.  The judge rejected the argument that Muslim personal law could be applied.  Under Shariat law, a girl may marry at age 15 when she is presumed to attain puberty. Meanwhile, a hearing is scheduled today in a public interest lawsuit filed in the Madras High Court in which petitioner is seeking an order to prevent state government officials from interfering in the marriage of Muslim girls.

Cardinal Edward Egan Dies At Age 82

Cardinal Edward M. Egan, former head of the Catholic Archdiocese of New York, died yesterday at the age of 82.  As reported by the New York Times, Egan was "a stern defender of Roman Catholic orthodoxy." For example, Egan argued that former New York Mayor Rudy Giuliani should not have received Holy Communion during Pope Benedict XVI's 2008 visit to the U.S. because of Giuliani's support of abortion rights. (See prior posting.) The Times summarized Egan's years in New York:

His tenure in New York had mixed reviews. His priority was to restore financial stability to the deficit-ridden archdiocese, and he did it by closing or merging parishes and schools and by raising millions from corporations and wealthy laymen. But he also drew bitter complaints from affected parishioners and priests. He tried to recruit more priests, but with little success.

Suit Challenges Quote From British Jurist Posted In Rhode Island's High Court

A Rhode Island lawyer this week filed a federal lawsuit challenging a quotation from British jurist Sir Edward Coke inscribed above the bench of the Rhode Island Supreme Court. The complaint (full text) in Gelfuso v. Suttell, (D RI, filed 3/4/2015) alleges in part:

6. Inscribed above the bench of the Rhode Island Supreme Court are the words "Non Sub Homine Sed Sub Deo Et Lege" ....

7. On information and belief, this is a phrase which translates as "Not under man, but under God and law."

8. Plaintiff considers this inscription as conveying a government endorsement of religion and a particular religious viewpoint with which Plaintiff does not agree.

Plaintiff not only seeks an injunction against displaying the inscription, but also an injunction against the court's continued distribution of an allegedly misleading publication that describes the quote's history and Lord Coke's relationship with Rhode Island's founder Roger Williams. The complaint alleges:

15. Though the publication portrays Lord Coke as a defender of freedom and equality defying a tyrannical king, Coke had actually been a persecutor of religious and political dissidents in England who had supported the ecclesiastical court of the High Commission and its counterpart the Star Chamber.

16. While Coke had mentored Roger Williams as a youth, Roger Williams later denounced Coke's views regarding religious persecution, the separation of church and state, and the Church of England, which eventually led to his own religious persecution and the founding of Rhode Island.

The full complaint makes fascinating reading for fans of English legal history. GoLocalProv carries a lengthy story on the lawsuit.

Alabama Supreme Court Upholds State's Tuition and Scholarship Tax Credit Law

In Magee v. Boyd, (AL Sup. Ct., March 2, 2015), the Alabama Supreme Court upheld the constitutionality under the state constitution of Alabama's law creating a refundable income tax credit to parent of students in failing schools to be used to pay to transfer them to other public or private schools. It also upheld tax credits for contributions to scholarship organizations that grant opportunity scholarships to students in failing schools.  In a 145-page opinion, the majority rejected procedural challenges to the law's enactment.  It rejected challenges under Alabama's Blaine amendments, finding that tax credits do not amount to appropriations for purposes of the state constitution's limits on appropriation to schools not under state control (Sec. 73) or to sectarian or denominational schools (Sec. 263).  It also concluded that the law does not violate Sec. 3, the religion clauses of the state constitution.  Six justices joined the majority opinion. Two justices concurred in part, and one justice dissented. AP reported on the decision.

District Court Invalidates Nebraska Bans on Same-Sex Marriages

In Waters v. Ricketts, (D NE, March 2, 2015), a Nebraska federal district court issued a preliminary injunction, effective March 9, prohibiting enforcement of the state's laws that bar same-sex marriage and recognition of same-sex marriages performed elsewhere, saying:

Under existing precedent, Nebraska's same-sex marriage ban is at least deserving of heightened scrutiny because the challenged amendment proceeds "along suspect lines," as either gender-based or gender-stereotype-based discrimination.

The court's order implementing its decision requires state officials:

to treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.

ACLU issued a statement announcing the decision.  According to AP, Nebraska Attorney General Doug Peterson plans to ask the 8th Circuit Court of Appeals for an order barring county officials from issuing same-sex marriage licences while the district court opinion is appealed. 

6th Circuit En Banc Hears Arguments In Arab Festival Proselytization Case

Yesterday the U.S. 6th Circuit Court of Appeals, sitting en banc, heard oral arguments in Bible Believers vs Wayne County. (Audio of full oral arguments.)  In the case, a 3-judge panel last year, in a 2-1 decision, affirmed the district court's dismissal of civil rights claims by Christian evangelists who engaged in aggressive preaching at the 2012 Arab International Festival in Dearborn, Michigan. Police insisted that they leave when the crowd turned hostile. (See prior posting.) The Grosse Point Patch has more background on the case.

New York City Schools Will Close On Two Muslim Holidays

NBC News reports that yesterday New York City Mayor Bill de Blasio, fulfilling a campaign promise, announced that two Muslim holidays would be recognized on the city's school calendar.  Schools will be closed on Eid al-Adha and Eid al-Fitr.  It is estimated that 10% of the students in the New York City public schools are Muslim.  City schools are already closed on major Christian and Jewish holidays. (School year calendar.)  [Thanks to Scott Mange for the lead.]