Jewish Sheriff's Office Employee Sues Alleging Religious Discrimination and Harassment

The Florida ACLU announced yesterday that it has filed a federal lawsuit on behalf of a Jewish employee of the Collier County, Florida Sheriff's Office alleging religious discrimination and harassment.  The ACLU summarized the complaint:

In 2009, Mr. Newmark requested religious accommodations to allow him to observe the tenets of his Jewish faith, including being allowed to not shave his beard and wear a head covering, and to have a schedule that accommodated his observance of the Jewish Sabbath as well as religious holidays like Passover and Yom Kippur.

Mr. Newmark’s requests for accommodations were denied, he was demoted from his position as an officer within the department’s gang unit to a non-certified civilian position of jail technician, and a campaign of harassment began that included being referred to by Sheriff’s staff as “a hairy Jewish mother-[expletive],” and having a Nazi Iron Cross flag placed outside his cubicle.

In 2012 – by which time Mr. Newmark had become a member of the Hasidic sect... Mr. Newmark was retaliated against for filing a complaint with the EEOC and threatened that he would  be forced to shave his beard and cease wearing his yarmulke.

The complaint (full text) in Newmark v. Collier County Sheriff's Office, (MD FL, filed 4/27/2015), asks for declaratory and injunctive relief as well as damages for violation of Title VII of the 1964 Civil Rights Act. The Fort Myers News-Press reports on the filing of the lawsuit.

Suit Challenges Library's Rules For Use of Conference Rooms

Yesterday, Liberty Counsel announced that it has filed a federal lawsuit challenging the Conference Room Policy of the Wake County, North Carolina Public Library.  The Policy permits non-profit groups to use the library's conference rooms for cultural, civic and informal educational purposes, but not for religious instruction, religious services or religious ceremonies.  The complaint (full text) in Liberty Counsel, Inc. v. County of Wake, North Carolina, (ED NC, filed 4/24/2015) contends that the policy discriminates on the basis of content and viewpoint of speech.  It alleges that the policy violates free speech, free exercise and Establishment Clause protections of the federal and state constitutions.

Supreme Court GVR's Another Non-Profit Contraceptive Mandate Challenge

The U.S. Supreme Court yesterday in Michigan Catholic Conference v. Burwell, (Docket No. 14-701) (Order List) granted certiorari, vacated the judgment below and remanded the case to the 6th Circuit for further consideration in light of Burwell v. Hobby Lobby Stores, Inc.  In the case, the 6th Circuit denied preliminary injunctions to several Catholic non-profit entities that object to the Affordable Care Act contraceptive coverage accommodation.  The accommodation allowed non-profits with religious objections to opt out of furnishing contraceptive coverage to their employees by completing a form and sending it to their insurer or third party administrator which would then furnish contraceptive coverage directly. (See prior posting.) Subsequently the accommodation for non-profits has been further modified to allow notice to be sent to the federal government rather than the insurer or administrator. (See prior posting.) The Court's GVR order in the case follows a similar one issued last month in Notre Dame University's challenge to the same regulations. (See prior posting.) Becket Fund issued a press release on the Court's action yesterday.

Some Background For Tomorrow's Same-Sex Marriage Arguments At the Supreme Court

Tomorrow, the U.S. Supreme Court hears oral arguments in Obergefell v. Hodges and three related cases raising the question of whether states may constitutionally refuse to authorize same-sex marriages and, even if they may, whether a state may refuse to recognize a same-sex marriage validly performed in another state. Lyle Denniston at SCOTUSBlog has an excellent summary of the legal issues involved. The New York Times last week profiled lead plaintiff James Obergefell and traces the changes in attitude toward marriage equality in Obergefell's home town of Cincinnati, Ohio. And CNN profiles the lawyers who will argue the cases. SCOTUSBlog will live blog the oral arguments beginning at 10:45 am. at this link.  For those who want in depth background material, SCOTUSBlog's case page has links to all the briefs, other relevant legal documents and additional legal analysis. The Supreme Court will release both audio tapes and the written transcript of oral arguments later tomorrow.  CBS News reports that a line began forming Friday afternoon for the limited number of seats available for spectators in the courtroom.

Supreme Court Grants Certiorari In Title VII Constructive Discharge Case

The U.S. Supreme Court today granted certiorari in Green v. Donahoe, (Docket No. 14-613, review granted 4/27/2015) (Order List.) The petition for certiorari in the case frames the question presented:

Under federal employment discrimination law, does the filing period for a constructive discharge claim begin to run when an employee resigns, as five circuits have held, or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation, as three other circuits have held? 

In the case, the 10th Circuit (full text of opinion) held that the filing period begins to run at the date of the last discriminatory act. It said in part:

No policy reason, certainly not the policy behind recognition of constructive discharge claims as a means to provide appropriate relief to employees, commends itself as a ground for postponing the accrual of constructive-discharge claims until the employee leaves work...

SCOTUSBlog's case page links to filings in the case. While the case in which review was granted involves alleged racial discrimination. the Supreme Court's decision will also impact cases in which religious discrimination led to a constructive discharge.

Georgia Company Refuses To Print Wedding Invitations For Same-Sex Couple

In the latest clash between business owners and same-sex couples, WXIA News reported yesterday that a suburban Atlanta printing business has refused to print wedding invitations for a same-sex couple. The owner of a Suwanee, Georgia Alpha Graphics franchise refused on religious grounds to print the invitations that Paige Beth says she wanted designed to look like a train ticket. The Alpha Graphics home office issued a statement apologizing, and emphasizing that the company does not condone discrimination on the basis of race, religion, nationality, ethnicity or sexual orientation.  Georgia's is one of 5 states that has no public accommodation law (except for disabled persons).

Proposed Order On Damages Issued Against Oregon Bakery That Refused Same-Sex-Wedding Cake

The Oregon Bureau of Labor and Industries announced last Friday that an Administrative Law Judge has issued a Proposed Order relating to damages to be paid by the owners of an Oregon bakery (Sweet Cakes by Melissa).  Aaron Klein, a co-owner of the bakery, was previously found to have violated the Oregon Equality Act by refusing on religious grounds to provide a wedding cake for a same-sex couple. (See prior posting.) The 111-page Proposed Findings, Conclusions, Opinion and Order issued April 21 (full text) proposes an award of compensatory damages for emotional suffering of $135,000, to be apportioned $75,000 to Rachel Bowman-Cryer and $60,000 to Laurel Bowman-Cryer (who was not present at the cake refusal).  The Administrative Law Judge ruled that these are damages caused by the cake refusal, and that the couple is not entitled to additional damages for emotional suffering caused by media and social media attention. The ALJ also proposes issuance of a cease-and-desist order against the bakery owners.

Both sides have ten days to file exceptions to the Proposed Order.  The Labor Commissioner will then issue the agency's final order, which is appealable to the Oregon Court of Appeals.

As reported by the Daily Signal, last Friday, supporters of the bakery owners set up a crowdfunding page on GoFundMe to help the bakers raise funds to pay any final damage award.  Within a day the page raised $109,000, but was taken down by GoFundMe as being in violation of its Terms and Conditions because it involves formal charges. The money already raised will still go to the bakery owners, Melissa and Aaron Klein.  A new fundraising page has been set up on Franklin Graham's Samaritan's Purse website.

Recent Articles of Interest

From SSRN:

• Robin L. West, Freedom of the Church and Our Endangered Civil Rights: Exiting the Social Contract, (in The Rise of Corporate Religious Liberty, Zoe Robinson, Chad Flanders and Micah Schwartzman, eds., Oxford University Press, 2015, Forthcoming).
• Nicholas B. Adell, Razing the Forest to Kill a Tree: EEOC V. Abercrombie and Why the Supreme Court Must Continue to Place the Burden of Actual Notice on Applicants and Employees in Title VII Requests for Religious Accommodation,(April 19, 2015).
• Harry G. Hutchison, Metaphysical Univocity and the Immanent Frame: Defending Religious Liberty in a Secular Age?, (George Mason Law & Economics Research Paper No. 15-13, April 2015).
• Michael J. Perry, American Religious Freedom: Reflections on Koppelman and Smith, (The Review of Politics 77 (2015), 287-299).
• Ryan H. Nelson, Marriage Equality and the Third Nail in the 'Proceed with Caution' Coffin, (90 N.Y.U. L. Rev. Online 17 (2015)).
• Howard M. Wasserman, Crazy in Alabama: The Judicial Process and the Last Stand Against Marriage Equality in the Land of George Wallace, (Northwestern University Law Review, 2015).

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

• Gabriel Cepaluni & Umberto G. Mignozzetti, Discrimination in International Courts Before and After 09/11: A Natural Experiment in the WTO Dispute Settlement, (April 17, 2015).
• Isaac Kfir, The Morocco Truth Commission Balancing Religion, Realpolitik and Idealism, (Impunity Watch L.J., Forthcoming).
• Muhammad Munir, The Principle of Legality in Islamic Criminal Justice System, (April 20, 2015).
• Michael J. Perry, Human Rights Theory, 2: What Reason Do We Have, If Any, to Take Human Rights Seriously? Beyond 'Human Dignity', (Emory Legal Studies Research Paper No. 15-350, April 2015).
• Matthew S. Erie, Defining Shariʿa in China: State, Ahong, and the Postsecular Turn, (Cross-Currents: East Asian History and Culture Review, Vol. 12, Pp. 88-117. 2014).
• Steven F. Friedell, A Jewish Constitution, (April 22, 2015).
• Fiona Martin, Has the Charities Act 2013 Changed the Common Law Concept of Charitable 'Public Benefit' and, if so, How?, (Australian Tax Forum, Vol. 30, 2015).

From SmartCILP:

• T.W. Brown, Ensuring the Application of RFRA and RLUIPA in Pro Se Prisoner Litigation, 41 Ohio Northern Univeristy Law Review 29-60 (2014).
• A Discussion of Religious Freedom in America. Article by Steven D. Smith; responses by Andrew Koppelman, Paul Horwitz and Nelson Tebbe; reply by Steven D. Smith. 41 Pepperdine Law Review 903-990 (2014).
• Symposium: Islamic and Jewish Law in the 21st Century. Introduction by Michael A. Helfand; articles by Michelle Greenberg-Kobrin, Christopher C. Lund, Ann Laquer Estin, Seval Yildirim, Faisal Kutty, Zvi Triger and Russell Powell. 41 Pepperdine Law Review 991-1113 (2014).

Recent Prisoner Free Exercise Cases

In West v. Grams, (7th Cir., April 22, 2015), the 7th Circuit vacated the district court's dismissal on mootness grounds of a Muslim inmate's RLUIPA claim. While the inmate had been transferred to another institution, the challenged policy of allowing religious services only if an outside volunteer is available to lead them is a system-wide policy.

In Holtz v. Pierce County, 2015 U.S. Dist. LEXIS 52453 (WD WA, April 20. 2015), a Washington federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 52448, April 1, 2015) and dismissed a number of claims by a Muslim inmate. Numerous claims were dismissed without prejudice for failure to exhaust administrative remedies. Claims relating to Halal meat and dessert; purchase of Kosher food; non-recorded visitations; threat and inappropriate language regarding religion by an officer; and conditions of housing unit regarding prayer were dismissed with prejudice.

In Desmond v. Phelps, 2015 U.S. Dist. LEXIS 52657 (D DE, April 22, 2015), a Delaware federal district court severed into three separate suits a case in which a number of inmates representing 3 different religions (Islam, Catholicism, Judaism) complained about availability of religious services.

In Allah v. Colorado Department of Corrections, 2015 U.S. Dist. LEXIS 52792 (D CO, April 22, 2015), a Colorado federal district court dismissed a Muslim inmate's complaint that after he had legally changed his name to a religious name, prison authorities only allowed him to use that as an a.k.a. along with name under which he was originally committed.

In Montague v. Schofield, 2015 U.S. Dist. LEXIS 53208 (ED TN, April 22, 2015), a Tennessee federal district court dismissed an inmate's complaint that religious programs have been curtailed and that Muslim inmates are allowed to purchase prayer oil only from a single vendor, but with general leave to amend because class action status had been denied for these and numerous other claims.

In El v. Wehling, 2015 U.S. Dist. LEXIS 53356 (D NJ, April 23, 2015), a New Jersey federal district court in dealing with a sprawling 537-page complaint raising 49 counts relating to plaintiff's arrest and his being charged with weapons and drug offenses among other things dismissed plaintiff's claim that his free exercise rights were infringed when officials used his given name rather than his Moorish name on court papers.

In Barstad v. Wright, 2015 U.S. Dist. LEXIS 53573 (WD WA, April 23, 2015), a Washington federal magistrate judge recommend dismissing an inmate's complaint that his free exercise rights were infringed by various mail rejections.

In Kuykendall v. Kennell, 2015 U.S. Dist. LEXIS 53798 (CD IL, April 24, 2015), an Illinois federal district court dismissed an inmate's complaint that his requests to change his religious affiliation from Catholic to Messianic Hebrew, then to Judaism, and lastly to Assemblies of Yahweh were not honored to legitimize his requests for a list of Jewish holidays, special religious holiday meals and a Kosher diet.

Egyptian Channel Cancels Program After Host's Criticism of Conservative Islam

Egypt's Daily News reported yesterday that the Al-Qahera Wal Nas satellite channel has cancelled the program hosted by commentator Islam El-Behiry after two lawsuits against it challenge El-Behiry's criticism of conservative Islamic schools of thought.  One suit filed by an independent lawyer calls for closing down the channel and removing episodes of the program from the Internet, accusing El-Behiry of "insulting the divine."  A second suit filed by the Grand Imam of Al-Azhar accuses El-Behiry of insulting Al-Azhar which Egypt's Constitution makes the main source of interpretation of Islamic law.  Egypt's President Abdel Fattah Al-Sisi has called for a reinterpretation of Islamic doctrine (see prior posting). In cancelling El-Behiry's show, the channel said:

We should let ‘enlightened’ religious preachers handle the task of renewing religious discourse.

Abercrombie Changes Dress Code As Supreme Court Decision Nears

As it awaits a Supreme Court decision in a case challenging its failure to provide a religious accommodation to its dress code for employees (see prior posting), Abercrombie & Fitch announced Friday that it will no longer hire employees based on body type or physical attractiveness.  According to the Washington Post,  the change comes as the company faces declining sales and less than six months after the long-time and controversial CEO Mike Jeffries stepped down.  The company's new dress code softens its "Look Policy," but employees among other things are still barred from wearing head coverings.  However the company says it will accommodate disabilities and "sincerely-held religious beliefs."

FASB Proposes Changes In Accounting Standards For Non-Profits

On April 22, the Financial Accounting Standards Board issued an Exposure Draft containing proposed refinements in current accounting standards for Non-Profit Entities. (Full text). The proposals address several issues:

• Deficiencies in the utility of information provided to donors, creditors, and others regarding an entity's liquidity stemming from misunderstandings of restrictions imposed by donors, laws, contracts, and governing boards on the entity's assets.
• Inconsistencies in the reporting intermediate measures of operations in the statement of activities.
• Inconsistencies in the type of information provided about the function and nature of operating expenses.
• Misunderstandings about and opportunities to enhance the utility of the statement of cash flows.

BNA Daily Report for Executives (subscription required) has more on the proposed changes.

Arizona Wins $2.18M In Attorneys Fees From FLDS Controlled Towns

As previously reported, last September an Arizona federal district court imposed a $50,000 civil penalty under the Arizona Fair Housing Act against the FLDS-controlled towns of Colorado City, Ariz., and Hildale, Utah for denying utility service to a couple because they are not FLDS members. Now in Cooke v. Town of Colorado City, (D AZ, April 21, 2015), the court ordered defendants to pay the state of Arizona (which was an intervenor in the case) was awarded $2.18 million in attorneys fees. Salt Lake Tribune reports on the decision.

Supreme Court Denies Certiorari In Title VII Case

Last Monday, the U.S. Supreme Court denied certiorari in Macon v. J.C. Penney Co., (Docket No. 14-946, cert. denied 4/20/2015) (Order List.)  In the case, the U.S. 6th Circuit Court of Appeals in a Dec. 29, 2014 opinion (full text) affirmed the district court's dismissal of plaintiff's Title VII religious accommodation claim.  Plaintiff was fired when she refused to sign her company's Statement of Business Ethics because according to her Christian beliefs the Bible prohibited her from taking oaths or making promises. She also refused to sign a document titled Our Integrity Promise because it would prevent her from writing an autobiography that included her work experiences. BNA Daily Report for Executives (subscription required) reports on the denial of review.

Controversial Former Navy Chaplain Now Running For Colorado State Senate

Former Navy chaplain Gordon James Klingenschmitt, who gained national attention for his long-running battle with the military over regulations requiring chaplains to deliver inclusive prayers at military events (see prior posting), is back in the news. Klingenschmitt, who hosts a national religious television show under the pseudonym "Dr. Chaps," was elected to the Colorado state House of Representatives last November. Last month, Klingenschmitt was removed by the House Republican leader from the Health, Insurance and Environment Committee after Klingenschmitt suggested on his TV show that the brutal attack on a pregnant Longmont, Colorado woman was "the curse of God upon America for our sin of not protecting innocent children in the womb." (Denver Post, March 31).

The Colorado Independent published an interview with Klingenschmitt yesterday discussing Klingenschmitt's decision to run in 2016 for State Senate. Asked how he made the decision to run, Klingenschmitt responded in part:

I went on a three-day, water-only fast, day and night for 72 hours, and I prayed....  At the end of that time, I was reading in the Bible in Joshua, chapter one, where God blessed Joshua and told him, ‘Everywhere you set your foot you will claim as your territory.’ He was talking about ancient Israel. I was inspired by that.

It reminded me of many of the volunteers who knocked on doors for me in my previous campaign and maybe in my future campaign. Everywhere they set their foot, every time they knocked on a door, whether for me or another candidate, those citizens are taking back their territory. They are making a political claim, and almost a spiritual claim, on how they’re going to be represented in the Capitol here.....

Oklahoma Legislature Passes 2 Bills Protecting Clergy, Judges and Churches That Object To Same-Sex Marriage

The Oklahoma legislature this week gave final passage to HB 1007 (full text) protecting clergy and religious organizations that object to same-sex marriage.  The bill provides that clergy shall not be required to solemnize marriages that violate their conscience or religious beliefs.  Religious organizations shall not be required to provide religious-based services designed for engaged or married couples or couples where the services are directly related to solemnizing, celebrating, strengthening or promoting a marriage, such as religious counseling programs, courses, retreats and workshops, if doing so would violate the conscience or religious beliefs of an official of the organization.  Clergy and officials of religious organizations are immunized from civil liability for refusing to solemnize or furnish services for such marriages.

The legislature also gave final passage to SB 788 (full text) that (unless otherwise prohibited by law) protects judges who are authorized to perform marriages, as well as clergy, from being required to "perform or solemnize any marriage in violation of his or her right to the free exercise of religion guaranteed by the First Amendment to the United States Constitution." It also provides that no church or church-controlled organization shall be required to participate in a ceremony performing or solemnizing a marriage in violation of the church's or organization's religious beliefs.

Texas Chef Says Feeding Homeless In Park Is Protected By State's RFRA

San Antonio, Texas chef Joan Cheever was cited by police earlier this month for feeding the homeless in the city's Maverick Park.  According to a report last week by My San Antonio, Cheever has been serving restaurant quality food to the city's homeless for the last ten years. She has a food permit for her non-profit mobile food truck known as  Chow Train, but police cited her for transporting and serving the food from another vehicle.  The ticket carries a potential fine of $2000. At her June 23 court hearing, Cheever will argue that her activity is protected by the 1999 Texas Religious Freedom Restoration Act.

Sex Club Evades Zoning Restrictions By Becoming A Church

The Washington Post yesterday published a lengthy and fascinating account of a Nashville, Tennessee swingers sex club that has apparently gotten around a number of zoning hurdles put in its way by turning itself into a church-- the United Fellowship Center.  The club sold its downtown building at a profit as its neighborhood gentrified, and it purchased a new building in the suburban community of Madison.  At the time, the building was properly zoned for the social club's activities.  However the building was located between two churches and an upscale Christian academy.  Local zoning laws were soon amended to bar private clubs of any kind in the area where the building was located.  And the state legislature passed a law prohibiting private clubs at which people can  view or engage in sex from operating within 1,000 feet of a school. So the club became a church at which swingers meet, mingle and engage in the regular practice of their faith. It revised its building plans to give areas of the church appropriate names. Actual sex will have to move off premises. The church's attorney says:

They can sue us and say they want an injunction to stop us from operating, and we can say we have some tenets of the church sort of like the Ten Commandments.... 

Employment Discrimination Suit Dismissed On Ministerial Exception Grounds

In Preece v. The Covenant Presbyterian Church, (D NE, April 22, 2015), a Nebraska federal district court held that the ministerial exception doctrine requires dismissal of employment discrimination claims by a church's former Director of Youth Ministry.  Richard Preece claimed that his employment was terminated in violation of Title VII and the Nebraska Fair Employment Practices Act because he obtained a divorce and in retaliation for complaining about sexual harassment by a pastor who was his direct supervisor.  The court held:

The plaintiff’s job duties reflected a role in him conveying the defendant’s message and carrying out its mission..... In this case, the defendant’s treatment of the plaintiff in relation to his sexual harassment allegation clearly implicates an internal church decision and management, rather than the outward physical acts of one pastor. Accordingly... this court finds the plaintiff’s sexual harassment claim is factually entwined and related to the plaintiff’s other claims, which the court may not review without excessive government entanglement with religion in violation of the First Amendment.

County Council Prayer Policy May Limit Invocations To Local Clergy

In Coleman v. Hamilton County, Tennessee, (ED TN, April 22, 2015), a Tennessee federal district court upheld the prayer policy of the Hamilton County, Tennessee Commission.  The policy allows any eligible member of the clergy in the county to deliver an opening invocation. Plaintiff argued that the Policy is unconstitutional because it only allows invocations to be delivered by members of the clergy who are part of an eligible and established assembly or congregation and makes no provision for other individuals to deliver the invocation. The court rejected the argument, saying:

Plaintiffs’ argument is clearly flawed and flies in the face of established Supreme Court precedent. In Marsh, the Supreme Court expressly authorized legislative bodies to appoint and retain a single person to give invocations at the beginning of official meetings. To find that each and every individual person under the jurisdiction of a particular legislative body has the right to give an opening prayer or invocation at the body’s meetings would effectively overrule not only Marsh, but an entire body of federal case law approving of the constitutionality of chaplains and non-discriminatory legislative prayer policies.

An ADF press release announced the decision.