Recent Articles of Interest

From SSRN:

• Marc O. DeGirolami, Free Exercise by Moonlight, (San Diego Law Review, Forthcoming).
• Twana A. Hassan, A Historical Analysis of the Development of Free Speech Justifications, (March 28, 2015).
• Frank S. Ravitch, Be Careful What You Wish for: Why Hobby Lobby Weakens Religious Freedom, (Brigham Young University Law Review, Forthcoming).
• Robert L. Howse, Joanna Langille & Katie Sykes, Pluralism in Practice: Moral Legislation and the Law of the WTO After Seal Products, (George Washington International Law Review, (2015 Forthcoming)).
• Mark Tushnet, Civil Rights Policy, (April 2, 2015).
• Marc Greendorfer, Brief of Tri Valley Law as Amicus Curiae in Support of Respondents in Same Sex Marriage Cases Nos. 14-556, 14-562, 14-571 and 14-574, (April 2, 2015).
• Scott D. Gerber, Law and Religion in Colonial Connecticut, (55 Am. J. Legal Hist. 205, (April 2015)).
• Christopher McCrudden, Transnational Culture Wars, (I.CON International Journal of Constitutional Law, Forthcoming).
• James M. Oleske, 'State Inaction,' Equal Protection, and Religious Resistance to LGBT Rights, (University of Colorado Law Review, Vol. 87, 2015, Forthcoming).

From SSRN (Non-U.S. Law):

• Michael Ramsden & Luke Marsh, Same Sex Marriage in Hong Kong: The Case for a Constitutional Right, (The International Journal of Human Rights (Volume 19, Issue 1, January 2015, pages 90-103).
• M.B. Hooker, Succession to Muslim Estates in Singapore: Sources of Law and Choice of Law, (Australian Journal of Asian Law, Vol. 15, No. 2, article 5, 2014).
• Rebecca French, What Is Buddhist Law?, (Buffalo Law Review, Forthcoming).
• Haider Ala Hamoudi, Wasfi H. Al-Sharaa & Aqeel Al-Dahhan, The Resolution of Disputes in State and Tribal Law in the South of Iraq: Toward a Cooperative Model of Pluralism, (in Negotiating State and Nonstate Law: The Challenges of Global and Local Legal Pluralism (Michael A. Helfand, ed. Cambridge University Press 2015)).

From SmartCILP and elsewhere:

• Corri Zoli, Emily Schneider & Courtney Schuster, Armed Conflict and Compliance in Muslim States, 1947-2014: Does Conflict Look Different Under International Humanitarian Law?, 40 North Carolina Journal of International Law & Commercial Regulation 679-738 (2015).
• Church & State, April 2015 Issue.

Bakery's Refusal To Place Anti-Gay Messages on Cakes Is Not Religious Discrimination

Scripps Media reported Friday that the Colorado Civil Rights Division has recently ruled in a Letter of Determination finding No Probable Cause that a Denver bakery did not engage in religious discrimination when it refused to bake and decorate two cakes with anti-gay-marriage messages.  William Jack, a Christian, asked the Azucar Bakery to furnish cakes shaped like a Bible decorated with two groomsmen, a cross with red X over it, and with Biblical verses that deal with sin and homosexuality. The bakery owner told Jack that she would bake the cakes, but not decorate them as requested. Instead she would furnish him with a pastry bag and icing so he could decorate it as he wished.  The Division Director's decision concluded that the bakery owner refused to decorate the cakes because Jack had requested "derogatory language and imagery," and not because of Jack's Christian creed. Jack is filing an appeal with the Civil Rights Division. (See prior related posting.)

School Yoga Program Does Not Violate California Establishment Clause

In Sedlock v. Baird, (CA App., April 3, 2015), a California state appellate court held that the yoga program introduced in California's Encinitas Union School District does not violate the Establishment Clause of the California Constitution.  The court concluded:

While the practice of yoga may be religious in some contexts, yoga classes as taught in the District are, as the trial court determined, "devoid of any religious, mystical, or spiritual trappings." 

AP reports on the decision. [Thanks to Bradford Masters and Tom Rutledge for the lead.]

Easter/ Passover Stories From The Weekend

On Friday, the White House released a statement (full text) from the President sending Good Friday and Easter wishes, and indicating that the President will be hosting the annual Easter prayer breakfast on Tuesday.  The statement reads in part:

Michelle and I join our fellow Christians around the world in observing Good Friday and celebrating Easter this weekend. With humility and awe, we give thanks for the extraordinary sacrifice that Jesus made for our salvation. We rejoice in the triumph of the Resurrection. And we renew our commitment to live as He commanded ...

On Saturday, the White House posted a video message from the President sending Passover and Easter wishes.

On Friday, the White House posted a photo of this year's annual White House Seder along with a detailed menu for the evening.

A traditional Passover ritual is the "selling of chametz"-- a symbolic transfer of ownership of food that does not meet Passover standards so an individual will not own leavened foods during the holiday period. JTA reported Friday:

For the past 15 years [the Israeli government] has been symbolically selling all the chametz from state-owned companies, the prison service and Israel’s national emergency supply to Hussein Jabar, an Arab-Israeli resident of Abu Ghosh. It then buys it all back after the holiday is over. The price tag? $5,000.

Obama To Host Annual White House Seder Tonight

Tonight, the first might of Passover, President Obama will continue his annual tradition of holding a Seder for a small group of family and friends at the White House.  Yesterday's Boston Globe recounts the origins of the White House tradition-- a makeshift Seder held in a hotel basement, put together by campaign staff during the 2008 Pennsylvania Democratic primary campaign. Now-Massachusetts State Senator Eric Lesser was one of those staffers.  He and a number other of those former staffers continue to attend each year.  As reported by The Hill, Obama sees the Seder as a way for his daughters to experience the Exodus story.  Over the years, the reading of the Emancipation Proclamation has been added as part of the White House's ceremony.

ADL Releases 2014 Audit of Anti-Semitic Incidents

Earlier this week, the ADL released its 2014 Audit of Anti-Semitic Incidents in the United States. It found that the total number of incidents rose by 21% last year. According to the Report:

In 2014, anti-Semitic incidents were reported in a total of 38 states and the District of Columbia.  Those incidents are categorized in the ADL Audit as follows: Assaults: 36 incidents in 2014, compared with 31 in 2013; Vandalism: 363 incidents in 2014, compared with 315 in 2013; Harassment, threats and events: 513 incidents in 2014, compared with 405 in 2013.

Placing those numbers in perspective, however, the Report said:

Despite the increase in incidents, the total number of anti-Semitic acts still represents one of the lowest totals of anti-Semitic acts reported by ADL since it started keeping records in 1979.  Still, the Audit has also identified new trends in anti-Semitic incidents, including the phenomenon of hacking attacks on community and synagogue websites by overseas hackers, which multiplied in 2014.

Magazine Interviews ADF Head

Yesterday's World Magazine carries an interview with Alan Sears, president and general counsel for Alliance Defending Freedom, a leading conservative Christian legal advocacy group. Among other things, Sears discusses his recruitment of ADF volunteer lawyers and use of the Internet to reach out to donors.

Arkansas Legislature Passes Ten Commandments Monument Bill

The Arkansas legislature on Wednesday gave final passage to SB 939, The Ten Commandments Monument Display Act (full text) which directs the secretary of state to arrange for private groups to place a Ten Commandments monument on the State Capitol grounds. The bill has been sent to Governor Asa Hutchinson for his signature.

The bill begins with a series of findings emphasizing the importance of the Ten Commandments as a foundation of the U.S. and Arkansas legal systems. One of the findings reads:

The Ten Commandments represent a philosophy of government held by many of the founders of this nation and by many Arkansans and other Americans today, that God has ordained civil government and has delegated limited authority to civil government, that God has limited the authority of civil government, and that God has endowed people with certain unalienable rights, including life, liberty, and the pursuit of happiness.

The bill also sets out the specific text of the Ten Commandments that is to appear on the monument. The bill authorizes the Attorney General to defend against any legal challenge to the monument, or to request Liberty Legal Institute to prepare and present a defense.  Northwest Arkansas Democrate Gazette reports on the legislature's action.

Citizens Suit Challenges City's Removal of Cross From Dunes Area

A group of Grand Haven, Michigan residents filed suit on Wednesday in state court seeking to force the city to rescind a resolution it adopted in January to remove a 48-foot tall cross from Dewey Hill-- a critical dune. The complaint (full text) in Citizens of Grand Haven v. City of Grand Haven, (MI Cir. Ct., filed 4/1/2015), contends that the city's action violates the free speech and equal protection clauses of the Michigan Constitution.

According to a Nov. 2014 MLive article:

The cross first was erected on Dewey Hill in December 1964 and now only is raised 10 times a year with sponsorship from Grand Haven's First Reformed Church for Worship on the Waterfront. 

During the Grand Haven Coast Guard Festival, the cross is converted to an anchor.

The most recent series of events was triggered by a letter from Americans United which, under the public forum status of Dewey Hill, asked to put up a series of displays marking Festivus, promoting LBGT pride and marriage equality, promoting atheist rights, and promoting reproductive choice.

This led city council in January to pass a resolution to limit access to Dewey Hill and convert the cross into an anchor. (Jan. 6, 2015 MLive article).

The lawsuit filed this week contends:

Defendant's actions in singling out the Dewey Hill Cross, the target of the anti-religious group, and keeping the Coast Guard Anchor, the non-religious part of the monument, constitutes an action regulating speech in a traditional public free speech forum and discrimination on the sole basis of religion, in violation of the Michigan Constitution and Civil Rights Act.

The Grand Haven Tribune has more on the lawsuit.

Hasidic Jewish Property Owners State Claim Against City For Discriminatory Decision To Condemn Buildings

In Shkedi v. City of Scranton, (MD PA, April 1, 2015),  a Pennsylvania federal district court rejected a motion by the city of Scranton and its housing officials to dismiss a civil rights suit filed against them.  Plaintiffs who are the trustees of two trusts that own apartment buildings allege that the city's decision to condemn their buildings for code violations was motivated in part by the fact that defendants are practicing Hasidic Jews.  In concluding that plaintiffs had adequately stated a substantive due process claim, the court said that if defendants' action was motivated by plaintiffs' religion and ethnicity, this would amount to "conscience-shocking behavior." The court also concluded that plaintiffs had stated procedural due process, equal protection and retaliation claims.

Arkansas Quickly Enacts Narrower Version of RFRA Than Originally Passed

Heeding Governor Asa Hutchinson's request (see prior posting), the Arkansas state legislature today gave final passage to a narrower version of the Religious Freedom Restoration Act than the one it had passed earlier this week.  Senate Bill 975 (full text) now more closely mirrors the federal RFRA and is limited to claims or defenses against the government.  The ability to use the law in suits involving private parties was removed. The new version also eliminates a number of the broad definitional sections in the earlier bill. The law specifically provides that it is to be interpreted consistent with the federal RFRA and case law under it. As reported by USA Today,  Governor Hutchinson signed the bill  into law 30 minutes after the House completed passage of it.

Indiana Enacts Anti-Discrimination Fix To Its Controversial RFRA

Acting with lightning speed, the Indiana General Assembly today used a pending bill on an unrelated matter as the vehicle to enact a so-called "fix" to the state's recently enacted and controversial Religious Freedom Restoration Act. (See prior posting.) Governor Pence immediately signed the measure (signing statement).  The new law adds language to RFRA that provides it may not be used as a justification for discrimination.  Senate Act No. 50 (full text) provides in part:

This chapter does not:

(1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service;

(2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service....

The law excludes from its anti-discrimination provisions any tax-exempt church or other nonprofit religious organization, including an affiliated school, as well as any member of the clergy when engaged in a religious or affiliated educational function.

Since Indiana does not have statewide legislation barring LGBT discrimination, the practical effect of the new amendments would appear to be primarily on local anti-discrimination laws, including one enacted by Indianapolis.  As reported by CNN and Huffington Post, neither side was satisfied with the fix. LGBT groups want full repeal of RFRA and the addition of sexual orientation and gender identity as protected classes under Indiana's civil rights law.  Social conservatives want protection for Christian businesses that refuse to provide goods and services to same-sex weddings.

Presidential Candidate Ted Cruz Praises Indiana RFRA, Says SCOTUS Ruling Upholding Marriage Equality Would Be Illegitimate

Sen. Ted Cruz, the only formally announced candidate so far for the 2016 Presidential race, spoke at Morningside College in Sioux City, Iowa yesterday, focusing on religious liberty and same-sex marriage. According to the Dallas Morning News, Cruz told his audience: "Religious liberty is not some fringe view. It is the basis of this country,"  He praised the recent action of the Indiana legislature in enacting its controversial Religious Freedom Restoration Act, saying:

We’re seeing in the news right now a lot of noise because the state of Indiana bravely stood up and passed a law defending religious liberty.

Criticizing Democrats and gay-rights activists, he added:

Because of their partisan desire to mandate gay marriage everywhere in this country, they also want to persecute anyone who has a good faith religious belief that marriage is a holy sacrament, the union of one man and one woman and ordained as a covenant by God.

Expressing concern over what the Supreme Court might rule this June in the same-sex marriage cases before it, he told his audience:

The first thing and I think the most important thing every one of us can do, is pray. Lift up in prayer.

Cruz said that if the Court legalizes same-sex marriage, he will urge Congress to pass legislation stripping courts of jurisdiction over the issue. He said that a ruling by the Court legalizing same-sex marriage would be "fundamentally illegitimate."  Cruz favors a Constitutional amendment that would leave the issue to the states.

Arkansas Governor Tells Legislature To Revise RFRA Bill Sent To Him

Arkansas Governor Asa Hutchinson yesterday, facing pressure from businesses in the state, asked the state legislature to recall from his desk the Religious Freedom Restoration Act that it passed on Tuesday (see prior posting) and amend it or pass a revised version of it.  AP reports that the state's largest employer, Wal-Mart, asked for the governor to veto the bill as did the governor's own son.  The legislature must act quickly since the version of the bill already formally sent to the governor becomes law automatically in five days if he does not veto it.  By last night, the state Senate passed a revised version that apparently limits the bill's use to actions in which the government is a party. The House of Representatives is expected to vote on the revised version today.

German Catholic Church Threatens To Sue Famous Footballer Over Church Taxes

Catholic Herald reported this week that the German Catholic Church is threatening to take famous Italian footballer Luca Toni to court over unpaid German church taxes.  The Church claims that Toni failed to pay the Kirchensteuer (church tax) while playing for Bayern Munich from 2007 to 2010.  The Church claims that Toni owes 1.5 million Euros in back taxes plus 200,000 Euros in interest.  A proposed settlement that would have had his team paying 700,000 Euros toward the arrearages was rejected by the team.

A Backgrounder On RFRA In Indiana and Arkansas

For those who may be interested in a general backgrounder on the Indiana and Arkansas RFRAs, I just published a piece in the Washington Post titled 10 things you need to know to really understand RFRA in Indiana and Arkansas.

Court Says Sun Worshipping Atheism Is Not A "Religion"

In Copple v. California Department of Corrections and Rehabilitation, (CA App., March 24, 2015), a California appeals court affirmed a trial court decision holding that Sun Worshipping Atheism is not a "religion" for purposes of California's Fair Employment and Housing Act.  Plaintiff Marshel Copple who had been hired as a correctional officer claimed that the California Department of Corrections and Rehabilitation’s requirement that he work overtime violated a tenet of his belief system that he sleep at least eight hours per day.  He sued for religious discrimination and harassment, failure to accommodate religious practices, retaliation based on his religion, and constructive discharge for his religious practices. The court held that Sun Worshipping Atheism, which Copple created and of which he is the only member does not address fundamental and ultimate questions. Instead it merely deals with living a healthy lifestyle. Raw Story last week reported on the decision.

4th Circuit Vacates Trial Court's Abstention In South Carolina Episcopal Diocese Trademark Litigation

In vonRosenberg v. Lawrence, (4th Cir., March 31, 2015), the U.S. 4th Circuit Court of Appeals vacated a federal district court's decision that declined to exercise jurisdiction over a trademark infringement case growing out of the ongoing controversy between a large break-away portion of the Episcopal Diocese of South Carolina and the smaller number of parishes that remain loyal to The Episcopal Church.  The district court held that the trademark dispute is part of a larger dispute over ownership of the Diocese's property which is being litigated in state court and concluded that it is "judicially impractical to retain jurisdiction over a fragmented claim that has been separated from the larger controversy." (See prior posting.)  The 4th Circuit held that the district court had applied precedents that apply to abstention when a plaintiff is seeking only declaratory relief.  Instead, where as here the plaintiff seeks an injuction as well as a declaratory judgment, the district court should have applied precedent that allows abstention only if "exceptional circumstances" justify the surrender of federal jurisdiction. The 4th Circuit remanded to case for the district court to determine whether exceptional circumstances are present. [Thanks to Will Esser via Religionlaw for the lead.]

Arkansas Legislature Passes RFRA Law That Is Broader Than Indiana's

The Arkansas General Assembly today gave final passage to HB 1228, the Arkansas Religious Freedom Restoration Act (full text) and sent it to Gov. Asa Hutchinson for his signature.  The bill's passage comes as growing controversy surrounds a religious freedom bill that became law in Indiana last week. (See prior posting.)  While a number of national media are describing the Arkansas law as similar to Indiana's (Huffington Post, Slate), a close examination of the Arkansas bill reveals that in a number of ways is is significantly broader than the Indiana law.  Here are some examples:

The definitional section in the Arkansas bill defines a "person" protected by the Act as including a corporation. Arkansas, however, does not include the language in Indiana's law that limits coverage of business entities to those where the protected beliefs are held by individuals who have control and substantial ownership of the entity.

The Arkansas law requires that in order to justify a substantial burden, the state must show that it has a compelling interest "in this particular instance."  That language does not appear in the Indiana law.

The Arkansas law defines "compelling governmental interest" to mean "a governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion."

The Arkansas law permits a person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, to assert the violation or impending violation as a "claim or defense" even when the state is not a party to the proceeding.  The Indiana law only allows assertion of a RFRA violation against a private party as a "defense."  That is, unlike Indiana, it appears that the Arkansas law would permit a plaintiff to recover damages against a private party for a violation of religious rights by the government.  In that regard, the Arkansas bill provides that it does not create a right of action by an employee against a private employer.  Unlike Indiana, it does not similarly exclude an action by an applicant for employment or a former employee.

According to the Arkansas Democrat-Gazette, Gov. Hutcheson has in the past repeatedly said he would sign the legislation. However some business and political leaders have called for Hutchinson to veto the bill.

Recent Prisoner Free Exercise Cases-- Installment 2 For the Week

In Epps v. Grannis, (9th Cir., March 27, 2015), the 9th Circuit upheld the district court's dismissal of a Muslim inmate's complaints regarding lack of a kosher diet, the prison's package policy, lack of a Muslim chaplain, failure to allow him to worship in a group setting following a prison riot in 2008; failure to deliver his Ramadan package in 2008; and confiscation of his religious books in 2010, which were returned in 2012.

In Williams v. GEO Group, 2015 U.S. Dist. LEXIS 37094 (MD GA, March 25, 2015), a Georgia federal magistrate judge recommended permitting a Rastafarian inmate to proceed with his free exercise and RLUIPA complaints that he was required to shave in violation of his Nazerite vow.

In Altman v. Palmer, 2015 U.S. Dist. LEXIS 37555 (ND IA, March 25, 2015), an Iowa federal district court rejected a claim by a civilly committed sex offender that his free exercise rights were infringed when he was not permitted to travel to attend the church in the town in which his family resided.

In Spigelman v. Samuels, 2015 U.S. Dist. LEXIS 38147 (ED KY, March 26, 2015), a Kentucky federal district court dismissed a Jewish inmate's complaint that his use of tefillin was restricted while he was in the prison's special housing unit.

In Hart v. Shearin, 2015 U.S. Dist. LEXIS 38189 (D MD, March 26, 2015), a Maryland federal district court upheld a prison's policy of limiting or cancelling religious services for problem inmates during a period of institutional lock-down. Inmates could have access to a chaplain and a religious TV video. Plaintiff's motion to file an amended complaint indicating that he had no TV and needed to see a chaplain was granted.

In Freeman v. Budnick, 2015 U.S. Dist. LEXIS 38613 (ED AR, March 26, 2015), an Arkansas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 38618, March 4, 2015) and dismissed a complaint by an Odinist inmate that while in punitive isolation he was denied various items needed to practice his religion such as a Thor's hammer, a set of runes and rune cloth, an Odinist text, an altar and altar cloth and a wooden statue.

In Scott v. Erdogan, 2015 U.S. Dist. LEXIS 38739, (M.D. Pa. Mar. 25, 2015), a Pennsylvania federal district court concluded that factual issues for trial exist as to a Sunni Muslim inmate's complaint that there were only Wahhabi/Salafi services conducted and his RLUIPA complaint about the timing of Ramadan prayer.  A number of other complaints about infringements of his religious practices were dismissed.

In Cox v. Stephens, 2015 U.S. Dist. LEXIS 39051 (SD TX, March 27, 2015), a Texas federal district court dismissed a Native American inmate's challenge to the Texas grooming policy that prohibits him from growing his hair, the religious objects policy that prohibits him from wearing his medicine bag at all times, and the pipe policy prohibiting him from partaking in the communal pipe. They were found to be the least restrictive means of furthering a compelling interest.