Challenge To Refusal of "8THEIST" Vanity Plate May Proceed

In Morgan v. Martinez, (D NJ, May 12, 2015), an atheist seeking to express her beliefs sued the head of the New Jersey's Motor Vehicle Commission challenging provisions in state regulations barring issuance of personalized license plates with letters or numbers"that may carry connotations offensive to good taste and decency."  Until plaintiff Shannon Morgan filed suit, the VMC refused to issue her a plate with the characters "8THEIST". The court held that Morgan has standing to bring the suit and refused to dismiss on the merits, concluding that she Morgan adequately stated claims of facial overbreadth, vagueness that encourages arbitrary and discriminatory enforcement, and prior restraint.

Employers Pressing For Same-Sex Employees To Marry In Order To Retain Partner Benefits

The Wall Street Journal reports today that as same-sex marriage becomes legal in more states, increasingly employers who had offered health benefits to domestic partners are telling same-sex couples that they must marry in order to retain their partner benefits. However some say that this may pose a problem for same-sex couples.  Because marriage licenses are public, this may end up "outing" an employee who has not publicly disclosed his or her sexual orientation.  Also, because there are no anti-discrimination protections for the LGBT community in the majority of states, "outing" could lead to discriminatory actions against the employee or the partner. Employers say they are trying to treat everyone equally. A few large companies have taken an opposite approach and are offering domestic partner benefits to both same-sex and opposite-sex couples.

President Obama Speaks Out On Poverty At Catholic-Evangelical Panel Discussion

As reported by Religion News Service, President Obama yesterday engaged in a fascinating 75-minute panel discussion at Georgetown University's Catholic-Evangelical Leadership Summit on Overcoming Poverty.  Labeled "Conversation on Poverty" (full text), the panel, moderated by journalist E.J.Dionne, also included Harvard professor Robert Putnam and American Enterprise Institute President Arthur Brooks. The President said in part:

I think it would be powerful for our faith-based organizations to speak out on this in a more forceful fashion. 

This may sound self-interested because there have been -- these are areas where I agree with the evangelical community and faith-based groups, and then there are issues where we have had disagreements around reproductive issues, or same-sex marriage, or what have you.  And so maybe it appears advantageous for me to want to focus on these issues of poverty, and not as much on these other issues....

There is great caring and great concern, but when it comes to what are you really going to the mat for, what’s the defining issue, when you're talking in your congregations, what’s the thing that is really going to capture the essence of who we are as Christians, or as Catholics, or what have you, that this is oftentimes viewed as a “nice to have” relative to an issue like abortion.  That's not across the board, but there sometimes has been that view, and certainly that's how it’s perceived in our political circles....

And there’s noise out there, and there’s arguments, and there’s contention.  And so people withdraw and they restrict themselves to, what can I do in my church, or what can I do in my community?  And that's important.  But our faith-based groups I think have the capacity to frame this -- and nobody has shown that better than Pope Francis, who I think has been transformative just through the sincerity and insistence that he’s had that this is vital to who we are.  This is vital to following what Jesus Christ, our Savior, talked about.

First Preliminary Settlement Reached In ERISA "Church Plan" Case

A series of cases filed around the country has challenged the treatment of Catholic hospital system pension plans as "church plans" exempt from ERISA. In Overall v. Ascension, a Michigan federal district court ruled in favor of the hospitals finding that the plans did not need to have been "established by" a church.  It is enough they were created by a church-affiliated organization. (See prior posting.)  Plaintiffs appealed the decision, and the U.S. 6th Circuit Court of Appeals appointed a mediator to try to settle the case. BenefitsPro reported yesterday that now, after 6 months of negotiations, the parties have agreed to a settlement that will give Ascension plan participants "ERISA-like" protections for the next seven and one-half years, but the plans will retain their "church plan" status. Plaintiffs in the case claimed that Ascension's plans were underfunded by $440 million.  The preliminary settlement would require Ascension to contribute an additional $8 million in funding. The proposed settlement still requires court approval.

Some State Legislators Plan Strategies To Counter Any SCOTUS Marriage Equality Ruling

Religion News Service reported yesterday that as the Supreme Court's decision on same-sex marriage nears, legislation has been introduced in several states to block the effect of a ruling in favor of marriage equality. For example, a Texas bill would prohibit the use of public funds to license or recognize same-sex marriages.  A proposed Louisiana law would permit employers to deny same-sex spouses marriage benefits and would give state contractors the right to refuse to hire gays and lesbians who marry.

Convoluted Rabbinical Court Politics In Israel

Jerusalem Post reported yesterday on the complex and convoluted politics surrounding decisions on the appointment of Rabbinical Court judges under Israel's newly formed coalition government. At the center of the controversy is the question of how Rabbinical Courts, that are responsible for various personal status matters, will treat women seeking divorces.  That will be affected by who sits on the Appointments Committee for Rabbinical Judges, and the judges they select.

Bayit Yehudi, a religious Zionist party that is one of the coalition partners, does not want to see a change in the current composition. In the last government it succeeded in getting 4 of the 11 seats on the Appointments Committee for women. However, United Torah Judaism, another coalition partner, wants to expand the Appointments Committee in order to water down the influence of the women members, and will introduce legislation to do so.  Bayit Yehudi, in its coalition agreement with Benjamin Netanyahu's Likud Party has obtained the right to oppose UTJ's bill-- which likely will assure it will not pass the Knesset. Currently nearly 30% of the positions on Rabbinical Courts are vacant.  A further complication is that the Chairman of the Appointments Committee can block judicial appointments by refusing to convene the Committee.  Divorce rights advocates are criticizing Bayit Yehudi for giving up the Chairmanship to Likud, which will more likely side with the haredi (ultra-Orthodox) parties on appointments.

New Report Finds Percentage of Christians In U.S. Declining; Unaffiliateds Increase

The Pew Research Center today released a new report titled America's Changing Religious Landscape. The report finds that Christians have declined from 78.4% to 70.8% of the population between 2007 and 2014.  In the same period, the unaffiliated have increased from 16.1% to 22.8%. Non-Christian faiths are up from 4.7% to 5.9% of the population.

Ministerial Exception Bars Discrimination Claims Against Salvation Army

In Rogers v. Salvation Army, (ED MI, May 11, 2015), a Michigan federal district court held that the ministerial exception doctrine bars race and age discrimination claims against The Salvation Army ("TSA") by plaintiff who, when terminated, was employed as a Spiritual Counselor by TSA. The court also rejected plaintiff's discrimination and harassment claims on the merits.

Alabama Governor Signs Student Religious Liberties Act

Last Thursday (coinciding with the National Day of Prayer), Alabama Governor Robert Bentley signed into law the Alabama Student Religious Liberties Act of 2015 (full text).  It prohibits discrimination against students or parents on the basis of religious viewpoint or religious expression.  It provides in part:

Students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions. Homework and classroom assignments shall be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns....

It also provides that:

Students in public schools may pray or engage in religious activities or religious expression before, during, and after the school day in the same manner and to the same extent that students may engage in nonreligious activities or expression.

AL.com reports on the enactment of the new law. [Thanks to Blog From the Capital for the lead.]

Jeb Bush Appeals To Conservative Christians At Liberty University

On Saturday, likely Presidential contender Jeb Bush delivered the commencement address at Liberty University. (Video of full remarks). As reported by AP, Bush, a convert to Catholicism, used the speech to make a vigorous defense of Christianity and of religious freedom to religious conservatives, saying in part: "How strange, in our own time, to hear Christianity spoken of as some sort of backward and oppressive force."

Recent Articles of Interest

From SSRN:

• Meital Pinto, The Right to Culture, the Right to Dispute and the Right to Exclude: A New Perspective on Minorities within Minorities, (Ratio Juris, 2015 Forthcoming).
• Ira C. Lupu, Moving Targets: Religious Freedom, Hobby Lobby, and the Future of LGBT Rights, (Alabama Civil Rights & Civil Liberties Law Review (Vol. 7, Issue #1, Fall, 2015)).
• Brandon L. Paradise, How Critical Race Theory Marginalizes the African-American Christian Tradition, (Michigan Journal of Race & Law, Vol. 20, No. 117, Fall 2014).
• Adam Lamparello, A Fourth Amendment Framework for the Free Exercise Clause, (May 5, 2015).
• Michele Goodwin & Allison M. Whelan, Law, Bioethics, and Biotechnology, (International Encyclopedia of the Social & Behavioral Sciences, 2nd ed., Vol. 13, James D. Wright, Editor, 2015, Forthcoming).
• William C. Bradford, Trahison Des Professeurs: The Critical Law of Armed Conflict Academy as an Islamist Fifth Column, (3 National Security Law Journal __ (2015 Forthcoming)).
• Gwendolyn Gordon, Culture in Corporate Law, or: A Black Corporation, a Christian Corporation, and a Maori Corporation Walk into a Bar... , (May 7, 2015).
• Deborah A. Widiss, Non-Marital Families and (Or After?) Marriage Equality, (Florida State University Law Review, Vol. 42, 2015).
• Iginio Gagliardone, Mapping and Analysing Hate Speech Online, (May 1, 2014).

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

• Shabnam Haji, Public Involvement and Constitutional Theocracy in Iran,(September 11, 2014).
• Riaz Tejani, 'A Logic of Camps': French Antiracism as Competitive Nationalism, (Political and Legal Anthropology Review 38:1, 2015).
• Haider Ala Hamoudi, The Political Codification of Islamic Law: A Closer Look at the Draft Shi’I Personal Status Code of Iraq, (Arizona Journal of International and Comparative Law, Vol. 32, No. 2, 2015).

From SmartCILP and elsewhere:

• Mark W. Cordes, Schools, Worship, and the First Amendment, 48 Suffolk University Law Review 9-65 (2015).
• Hon. Kermit V. Lipez, Is There a Place for Religion in Judicial Decision-Making?, 31 Touro Law Review 133-148 (2014).
• ABA Business Law Section, Adoption of Changes to the Model Nonprofit Corporation Act-- Miscellaneous and Technical Amendments, 70 Business Lawyer 467-487 (Spring 2015).

Recent Prisoner Fre Exercise Casess

In Ajala v. West, 2015 U.S. Dist. LEXIS 57944 (WD WI, May 4, 2015), a Wisconsin federal district court held that the state had not shown as a matter of law that banning a Muslim inmate from wearing a kufi outside his cell and group worship is the least restrictive means of furthering a compelling government interest. It ordered the case to trial on injunctive and declaratory relief, but found qualified immunity as to damages.

In Cauthen v. Rivera, 2015 U.S. Dist. LEXIS 58244 (ED CA, May 4, 2015), a California federal magistrate judge recommended dismissing a complaint by a Rastafarian inmate about a body cavity search.  Plaintiff objected on religious grounds that it would be indecent to expose his naked body to people that don't "look like" him, such as females or homosexuals.

In Mallory v. Stanitis, 2015 Pa. Commw. Unpub. LEXIS 312 (PA Commnw. Ct., May 5, 2015), a 3-judge panel of the Pennsylvania Commonwealth Court affirmed a trial court's dismissal of a Muslim inmate's retaliation and free exercise claims growing out of plaintiff's insistence on wearing his pants legs rolled up to the middle of his shins for religious reasons.

In Pabon v. Cheshire County Department of Corrections, 2015 U.S. Dist. LEXIS 58717 (D NH, May 1, 2015), a New Hampshire federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 183796, April 17, 2014), and allowed an inmate to proceed with his constitutional, but not his RLUIPA, claims for damages based on allegations that he was denied access to religious items and prevented from practicing his religion.

In Rinaldi v. United States, 2015 U.S. Dist. LEXIS 59579 (MD PA, May 7, 2015), a Pennsylvania federal district court dismissed a Muslim inmate's complaint that he was denied the opportunity to engage in congregate Friday Jumuah prayers with other Muslims. While issues of fact remained as to plaintiff's claim under RFRA, he failed to allege personal involvement of any of the defendants.

In Fox v. Heyns, 2015 U.S. Dist. LEXIS 60247 (WD MI, May 7, 2015), a Michigan federal magistrate judge recommended dismissing as moot, as well as for failure to exhaust, complaints by two inmates seeking recognition of the Christian Identity Faith and its holy days as well as of full-body immersion.

In Wilson-El v. Mutayoba, 2015 U.S. Dist. LEXIS 60688 (SD IL, May 8, 2015), an Illinois federal district court upheld $10,100 punitive damage verdict a jury had awarded against a prison chaplain who had denied a Moorish Science Temple member a vegan diet.

In Oliver v. Adams, 2015 U.S. Dist. LEXIS 60859 (ED CA, May 7, 2015), a California federal magistrate judge recommended allowing a Shetaut Neter inmate to move ahead with his First Amendment, RLUIPA and equal protection claims asserting favoritism to conventional Western world religions and denials of a religious diet, prayer rug, religious materials, worship services, and other programming. UPDATE: The court adopted the magistrate's recommendations at 2015 U.S. Dist. LEXIS 126886 (Sept. 21, 2015).

Satanic Temple Member Files Suit Challenging Missouri's Abortion Restrictions Under State's RFRA

On Friday, after submitting a demand letter (full text), a member of the Satanic Temple filed a lawsuit in state court in Missouri challenging as a violation of Missouri's Religious Freedom Restoration Act the state's waiting period and informed consent requirements imposed before a woman may obtain an abortion. (See prior related posting.)  The complaint (full text) in Doe v. Nixon, (MO Cir. Ct., filed 5/8/2015), alleges that plaintiff has deeply held religious beliefs that her body is inviolable and subject to her will alone and that she alone decides whether to remove a non-viable fetus.  It contends that conditioning her decision to have an abortion on presenting her written materials prepared by the state that outline gestational development and the possibility of the abortion causing pain to the unborn child, the requirement that she view an ultrasound, and the statutory 72 and 24-hour waiting periods contitute restrictions on her free exercise of religion because they are contrary to her beliefs and unduly restrictive of her freedom of choice. Plaintiff also filed a Memorandum of Law in Support of a Temporary Restraining Order (full text).   Orlando Weekly reports on the lawsuit.

Egypt Holds 4 Coptic High Schoolers On Blasphemy Charges

Fox News reported yesterday on four 15 to 16 year old Coptic Christian boys being held by authorities in Egypt on blasphemy charges, apparently because of a 32-second video clip they made mocking an ISIS beheading. The video was made on their teacher's cell phone while the boys were on a school-related religious excursion. In early April, Muslim residents of the boys' village of Al-Nasriyah filed a complaint and their teacher was arrested. Negotiations between Christians and Muslims in the community led to the Copts banning the teacher from the community. Meanwhile marches and attacks on homes and businesses by local Muslims forced parents of the four boys to turn them over to authorities. (A fifth boy escaped the village.) Last week a judge refused to release the four boys so they could take their year-end exams, holding them for two more weeks while the investigation continues.

North Carolina County Commission Chairman Says He Will Only Allow Christian Invocations

Reacting to a recent federal district court decision invalidating the invocation practices in a nearby county (see prior posting), Lincoln County, North Carolina, Board of Commissioners Chairman Carrol Mitchem told WBTV News last week that only Christian prayers would be permitted at Council meetings. He said in part:

Other religions, or whatever, are in the minority. The U.S. was founded on Christianity.  I don’t believe we need to be bowing to the minorities. The U.S. and the Constitution were founded on Christianity. This is what the majority of people believe in, and it’s what I'm standing up for....

I don’t need no Arab or Muslim or whoever telling me what to do or us here in the county what to do about praying. If they don’t like it, stay the hell away.... I ain’t gonna have no new religion or pray to Allah or nothing like that.... 

We’re fighting Muslims every day. I'm not saying they’re all bad.  They believe in a different God than I do. If that’s what they want to do, that’s fine. But, they don't need to be telling us, as Christians, what we need to be doing. They don't need to be rubbing our faces in it.

Another Commission member, Alex Patton, disagreed with Mitchem saying that the country was founded on freedom of religion and complained that Mitchem had "just exposed our county to potential litigation, which was needless."

Norway Repeals Its Blasphemy Law

According to Sputnik News, this week the Norwegian Parliament officially repealed the country's blasphemy law.  Section 142 of Norway's General Civil Penal Code had provided:

Any person who by word or deed publicly insults or in an offensive or injurious manner shows contempt for any creed whose practice is permitted in the realm or for the doctrines or worship of any religious community lawfully existing here, or who aids and abets thereto, shall be liable to fines or to detention or imprisonment for a term not exceeding six months. A prosecution will only be instituted when it is required in the public interest.

While attempts at repeal have been made since 2009, the repeal now came to support free speech after the Charlie Hebdo massacre in Paris in February.  Sponsors of the repeal argued that the blasphemy law created a perception that religious expression was entitled to special protection. Repeal was opposed by some Christian spokesmen.  The last time anyone was actually charged under the Norwegian law was in 1933. Writer Arnulf Øverland was acquitted of charges growing out of his lecture titled "Christianity, the tenth plague." [Thanks to Center for Inquiry for the lead.]

In Israel, Coalition Agreements Promise To Roll Back Recent Anti-Haredi Religious Changes

JWeekly reported yesterday that in Israel the coalition agreements signed by Benjamin Netanyahu in order to create a parliamentary majority in the newly-elected Knesset will roll back anti-haredi religious reforms enacted by the last government:

A coalition agreement signed last week between the Likud Party led by Prime Minister Benjamin Netanyahu and the haredi Orthodox United Torah Judaism faction promises to dismantle a raft of legislation enacted in the last two years that chipped away at several longstanding entitlements enjoyed by the haredi, or ultra-Orthodox, community. Shas, the Sephardic haredi party, signed its own coalition agreement with Likud this week that will cement the power of religious parties in the next government.

Led by the Yesh Atid party, the last government passed laws to include haredim in Israel’s mandatory military draft and encourage the teaching of math and English in government-funded haredi schools. The government, which did not include the haredi parties, also allowed dozens of municipal Orthodox rabbis to perform conversions, vastly increasing the number of conversion courts from the four controlled by the haredim. Other laws cut subsidies to haredi yeshivas and large families, many of whom are haredi.

The Likud-UTJ agreement promises to repeal the conversion decision, increase subsidies to yeshivas and large families, and relieve haredi schools of the obligation to teach secular subjects. The agreement also gives the incoming defense minister sole authority to decide whether to implement the draft law, effectively allowing him to choose not to enforce it. A UTJ lawmaker will head the powerful Knesset Finance Committee, while Shas will control the Religious Services Ministry, which handles most religion-state policies.

However earlier this week, ahead of the new Knesset taking over, Israel's Attorney General Yehuda Weinstein told the High Court of Justice that the government will no longer fine restaurant owners who display religious certification from private organizations rather than from the Chief Rabbinate. Times of Israel reported yesterday that the move comes in a case brought on behalf of two Jerusalem restaurants by the Reform Movement's Center for Religious Action.  The restaurants will still not be able to advertise themselves as "kosher," but only as having a private certification.

Faith Healer Sues Atheist Activist Claiming Misuse of YouTube Video

In Arizona last week, Adam Miller, a "spiritual transformational healer," filed a federal lawsuit against Joel Guttormson, an activist in the atheist and transgender communities, who allegedly obtained and misused Miller's promotional video by hacking into a private YouTube account.  The complaint (full text) in Miller v. Guttormson, (D AZ, filed 4/28/2015), alleges that Guttormson misappropriated a video titled "Healer Adam Miller – Explanation of the Healing Work," inserted into it allegations attacking the truthfulness of statements in it, and uploaded it to Guttormson's own publicly available YouTube channel under the title "Adam Miller: Con Artist." At the end of the doctored video, Guttormson promotes a website and an online atheist audio bookstore. The doctored video then appeared at the top of any Google search for Adam Miller. Guttormson subsequently uploaded two additional videos attacking Miller to YouTube. The complaint alleges copyright infringement, intentional interference with business expectancies and defamation. Techdirt blog criticizes the lawsuit at length.

Suit Seeking Declaration That Homsexuality Is Sinful Receives Quick Dismissal

With the leading academic law-and-religion listserv filled with suggestions for grounds on which the lawsuit might be dismissed, a Nebraska federal district judge has, only six days after the suit was filed, dismissed for lack of subject matter jurisdiction a suit purportedly brought as ambassador of God and Jesus against "Homosexuals" apparently seeking to have the court declare that homosexuality is a sin.  In Driskell v. Homosexuals, (D NE, May 6, 2015), the court began by stating: "A federal court is not a forum for debate or discourse on theological matters." The court went on to find that plaintiff has not complied with the general rules of pleading, plaintiff lacks standing and plaintiff has not set forth a factual or legal basis for a claim under the Constitution, laws, or treaties of the United States.  Advocate reports on the decision.

Today Is the Official National Day of Prayer

A federal statute, 36 USC Sec. 119, requires the President to issue a Proclamation each year designating the first Thursday in May as "a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals."  This year's Proclamation (full text) which this morning is on the National Day of Prayer Task Force website, but not yet on the White House website, reads in part:

When women and men of all backgrounds and beliefs are free to practice their faiths without fear or coercion, it bolsters our religious communities and helps to lift up diverse and vibrant societies throughout our world. In America, our Nation is stronger because we welcome and respect people of all faiths, and because we protect the fundamental right of all peoples to practice their faith how they choose, to change their faith, or to practice no faith at all, and to do so free from persecution and discrimination. Today, as we pause in solemn reflection, we celebrate the religious liberty we cherish here at home, and we recommit to standing up for religious freedom around the world.

In recent years, the National Day of Prayer has become increasingly controversial as the private National Day of Prayer Task Force has emphasized a Christian-themed program and the White House, particularly under Barack Obama, has attempted to make the event more inclusive. (See prior posting.) The Washington Post carried an opinion piece yesterday making a similar point titled Let’s stop pretending we’re being inclusive on the National Day of Prayer. This year's National Observance planned by the Task Force will be held this morning on Capitol Hill at the Cannon House Office Building and will be llive streamed here beginning at 9:00 am. This year's honorary chair is Dr. Jack Graham. The listed speakers include at least one non-Christian, the politically conservative Rabbi Daniel Lapin who heads the American Alliance of Jews and Christians. Lapin's Message on that organizaion's website reads in part: "I realized that Jews lived more benignly, more tranquilly and more prosperously today in the United States than anywhere else in the world during the past two thousand years.  It was clear to me that this was precisely because America is a Christian country."

UPDATE: The Presidential Proclamation is now also on the White House website.