Suit Challenges Union's Application of Religious Exemption To Fair Share Fee Requirement

Under Pennsylvania's Public Employee Fair Share Fee Law, public employee unions may enter collective bargaining agreements that require non-union members to pay a fair share fee instead of dues. However for employees who object on religious grounds, the law permits the employee to pay an equivalent amount to a nonreligious charity agreed upon by the employee and the union.  This week, a teacher in a high school near Pittsburgh has filed suit in federal district court claiming her due process and free speech rights have been infringed by the union's refusing to accept the charities to which she wants to send her fair share fee.

The complaint (full text) in Misja v. Pennsylvania State Education Association, (MD PA, filed 6/18/2015), says that teacher Linda Misja initially requested that her payment be sent to People Concerned for the Unborn Child, but the union refused insisting that this would be sending the fees to an organization that furthers plaintiff's religious beliefs, instead of to a nonreligious charity as required by law.  Misja then requested that her fees be sent to the National Rifle Association Foundation. The union rejected this choice because it has a policy of not agreeing to the charitable subsidiaries of political organizations. According to the complaint:

Ms. Misja seeks a declaratory judgment that the PSEA cannot maintain its practice of withholding her funds indefinitely, without access to an independent decision-making process to resolve the disputed application thereof, and cannot engage in pernicious viewpoint discrimination by restricting her choice of charity simply because Ms. Misja’s chosen charity takes positions with which the PSEA does not agree.

The Fairness Center has issued a press release and a legal backgrounder on the case.

Suit By U.S. Against FLDS Towns Moves Ahead

United States v. Town of Colorado City, Arizona, (D AZ, June 17, 2015), is a decision in a civil suit by the Untied States against the twin towns of Colorado City, Arizona and Hilldale, Utah, and against utility companies serving the towns alleging a pattern of discrimination against residents who are not members of the polygamous FLDS Church, denying them housing, police protection and access to public services. (See prior posting.) The court refused to dismiss claims that defendants violated Violent Crime Control and Law Enforcement Act of 1994 by denying plaintiffs their constitutional rights, saying that there are material questions of fact as to whether there have been violations.  The court also allowed the United States to move ahead with its claims of violations of the Fair Housing Act, though found that plaintiff could not recover damages on behalf of certain individuals. It also held that a prior civil suit by a private party could not be relied on by the government to assert non-mutual collateral estoppel. AP reporting on the decision calls it a loss for the Justice Department.

Supreme Court Unanimously Upholds Church's Challenge To Restrictive Sign Ordinance

Today in Reed v. Town of Gilbert, Arizona, (Sup. Ct., June 18, 2015), the U.S. Supreme Court unanimously held that an Arizona town's sign ordinance that placed greater restrictions on temporary directional signs than on other signs violates the First Amendment.  The challenge to the ordinance was brought by a local church whose Sunday services are held at various temporary locations and which posted signs each weekend displaying the Church name and the time and location of the next service.  Justice Thomas' majority opinion (joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito and Sotomayor) concluded that the provisions placing greater restrictions on temporary directional signs than on signs conveying other messages (such as ideological and political signs) "are content-based regulations of speech that cannot survive strict scrutiny."  It emphasizes:

Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech.

It added:

a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.

Justice Alito, joined by Justices Kennedy and Sotomayor, filed a short concurring opinion setting out examples of content-neutral alternatives.

Justice Breyer filed a separate opinion concurring in the judgment saying that while the regulation here does not warrant strict scrutiny, it is nevertheless invalid. He explains:

The better approach is to generally treat content discrimination as a strong reason weighing against the constitutionality of a rule where a traditional public forum, or where viewpoint discrimination, is threatened, but elsewhere treat it as a rule of thumb, finding it a helpful, but not determinative legal tool, in an appropriate case, to determine the strength of a justification.

Justice Kagan (joined by Justices Ginsburg and Breyer) also filed an opinion concurring in the judgment, saying in part:

The Town of Gilbert’s defense of its sign ordinance—most notably, the law’s distinctions between directional signs and others—does not pass strict scrutiny, or intermediate scrutiny, or even the laugh test.... The absence of any sensible basis for these and other distinctions dooms the Town’s ordinance under even the intermediate scrutiny that the Court typically applies to “time, place, or manner” speech regulations. Accordingly, there is no need to decide in this case whether strict scrutiny applies to every sign ordinance in every town across this country containing a subject-matter exemption.

I suspect this Court and others will regret the majority’s insistence today on answering that question in the affirmative.  As the years go by, courts will discover that thousands of towns have such ordinances, many of them “entirely reasonable.”

Supreme Court Holds Specialty License Plates Are "Government Speech"

Today in Walker v. Texas Division. Sons of Confederate Veterans, Inc., (Sup. Ct., June 18, 2015), the U.S. Supreme Court in a 5-4 decision upheld a decision by the Texas Department of Motor Vehicles Board to reject an application by Sons of Confederate Veterans for the issuance of a specialty license plate design featuring a Confederate battle flag. The majority in an opinion by Justice Breyer (joined by Justices Thomas, Ginsburg, Sotomayor and Kagan) held the specialty plates are government speech, and that "when government speaks, it is not barred by the Free Speech Clause from determining the content of what it says."  The majority, relying largely on its 2009 Summum decision, said the history of license plates show that they have largely communicated state messages and their design is controlled by and closely identified in the public mind with the state. The majority added:

Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech.... And the Free Speech Clause itself may constrain the government’s speech if, for example, the government seeks to compel private persons to convey the government’s speech. But, as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf. 

Justice Alito's dissenting opinion (joined by Chief Justice Roberts and Justices Scalia and Kennedy) argued that the 350 varieties of specialty plates issued by the state of Texas are not seen as expressions of state policy:

If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” 

Pope's Encyclical On Environmental Protection Issued; Republican Presidential Candidates May Be Pressed

The Vatican this morning released Pope Francis' much anticipated Encyclical Laudato Si: On Care For Our Common Home, as well as a Press Guide to the lengthy document.  The Encyclical begins:

1. “LAUDATO SI’, mi’ Signore” – “Praise be to you, my Lord”. In the words of this beautiful canticle, Saint Francis of Assisi reminds us that our common home is like a sister with whom we share our life and a beautiful mother who opens her arms to embrace us....

2. This sister now cries out to us because of the harm we have inflicted on her by our irresponsible use and abuse of the goods with which God has endowed her. We have come to see ourselves as her lords and masters, entitled to plunder her at will. The violence present in our hearts, wounded by sin, is also reflected in the symptoms of sickness evident in the soil, in the water, in the air and in all forms of life. This is why the earth herself, burdened and laid waste, is among the most abandoned and maltreated of our poor....

In an article earlier this week, the New York Times suggests that the Encyclical will put pressure on Catholic Republican candidates for President who have questioned scientific findings on human causes of climate change and opposed policies to tax or regulate the burning of fossil fuels. These include Jeb Bush and Marco Rubio who "have courted influential and deep-pocketed donors, such as the billionaire brothers Charles G. and David H. Koch, who vehemently oppose such climate policies." Other announced or likely Catholic candidates are Rick Santorum, Bobby Jindal and Chris Christie.  AP reports that, speaking to reporters yesterday, Jeb Bush said:

I go to church to have my faith nourished, to have my faith challenged.  That's why I go to Mass. I don't go to Mass for economic policy or for things in politics.

2nd Circuit: Post-9-11 Muslim-Arab Alien Detainees Have Due Process-Equal Protection Claims

In Turkmen v. Hasty, (2d Cir., June 17, 2015), the U.S. Second Circuit Court of Appeals in a 2-1 decision held that a group of "out-of-status" aliens rounded up on immigration charges and detained after the 9/11 attacks have substantive due process and equal protection claims under Bivens v. Six Unknown Agents against various defendants including former Attorney General John Ashcroft, former FBI Director Robert Mueller and former INS Commissioner James Ziglar.  The court however held that a Bivens remedy is not available  for plaintiffs' free exercise claims.  The majority concluded that plaintiffs had adequately pleaded that they were being held in punitive conditions only because they were, or were perceived to be, Arab or Muslim.  According to the majority, that policy was "built on a perception of a race and faith that has no basis in fact." AP and FDL report further on the 109-page majority opinion and 91-page dissent.

White House, State Department Send Ramadan Greetings

Yesterday the White House issued a press release carrying Ramadan greetings from President Obama and the First Lady "to all those observing the month of fasting in the United States and around the world." The President's statement said in part:

In this month of giving, Muslims around the globe reach out to assist those afflicted by conflict, hunger, poverty and disease. And here in the United States, American Muslims join their fellow citizens to serve the less fortunate, hosting inter-faith activities that build understanding and remind us that we stand together as one American family. The diversity and patriotism of America’s religious communities give strength to all of us, and our freedom to worship reminds us of the values we share.

The press release also indicated that again this year the President will host an iftar dinner at the White House.

Also yesterday the State Department released a press statement  from Secretary of State Kerry wishing Muslims "a joyful Ramadan Kareem."

Ramadan Begins This Evening

Ramadan begins this evening, according to an announcement by Saudi Arabia's Supreme Court. (Al Arabiya). The dawn to dusk fast that begins tomorrow morning is particularly difficult in northern Europe and North America because the holy period based on the lunar calendar falls this year during the long days of summer.The International Business Times reports that Muslim clerics in Britain differ on whether Muslims in Europe can use the fasting hours for Mecca-- 12 to 13 hours per day-- instead of the longer 18 hours that are involved by using actual sunrise and sunset in northern Europe.

Meanwhile PolitiFact discusses the outrage on conservative social media over the decision of the U.S. Embassy in Indonesia to hold its annual 4th of July celebration-- an outreach event aimed at local influentials-- on June 4 since a daytime event during Ramadan would not have been well attended.

Afghan President Appoints First Woman To Supreme Court, But Clerics Object

Afghanistan President Ashraf Ghani has appointed the country's first female Supreme Court judge according to yesterday's Euronews.  Ghani fulfilled an election promise by appointing Anisa Rassouli, former head of the Afghan Women Judges Association.  Rassouli's appointment must still be approved by Parliament. Ghani says he has religious approval for the appointment, but Islamic clerics on the Ulema Council of Afghanistan say that Sharia law prohibits a woman from occupying the position of judge.

Group Challenges Sheriff's Preaching While In Uniform

Lakeland, Florida, which is no stranger to church-state conflicts, is now home to another one. Fox 13 News reports that Polk County Sheriff Grady Judd delivered a sermon last April at the First Baptist Church in Lakeland, wearing his sheriff's uniform. The sermon focused on developing faith based dorms at the Polk County Jail and criminals changing their lives after finding Jesus. The Freedom From Religion Foundation has threatened to sue if Judd continues to wear his official uniform while preaching.

Jordanian Media and Muslims Criticize U.S. Ambassador's Support of LGBT Event

AlMonitor reported yesterday on the strong criticism leveled by Jordan's Islamic Action Front and conservative Jordanian media of U.S. Ambassador Alice Wells' attendance at an event last month in central Amman to mark the International Day Against Homophobia, Transphobia and Biphobia. In a statement, the Islamic Action Front said in part:

such meetings are a form of corruption and deviation. These meetings threaten the security and stability of the country, spreading the taboo and immorality in this conservative society and are also contrary to the constitution.

Suit Claims College Volleyball Coach Required Team Members To Attend Church

The Wilmington News Journal and Courthouse News Service report on a lawsuit filed this week in federal district court in Delaware by a former Delaware Sate University volleyball player who says she lost her scholarship because she objected to the volleyball coach's requirement that players attend church and participate in other religious activities.  The suit filed by Natalia Mendieta, a Catholic, against former coach LaKisya Killingsworth and former athletic director Candy Young claims that in 2013 the coach required players to attend Sunday services with her at Calvary Assembly of God, a Pentecostal church. The coach also had the team pray before each match, distributed Bibles to the team and urged players to join the Fellowship of Christian Athletes. In 2014, the coach made religious activities optional, but still listed church on the team's schedule and favored those who attended.  The suit claims that after plaintiff objected to the church attendance requirement, the coach used plaintiff's violation of a curfew by a few minutes as an excuse for revoking her scholarship for the 2015-16 school year.

Freedom From Religion Foundation Founder Ann Gaylor Dies At 88

Freedom From Religion Foundation announced yesterday that its principal founder Anne Nicol Gaylor died Sunday night. She was 88. Gaylor served as president of FFRF until 2004. According to FFRF:

A master of “sound bites” with media savvy, Anne quickly took FFRF from a tiny organization to the largest association of freethinkers (atheists and agnostics) in North America.

FFRF, founded in 1976, has in recent years developed a major national presence in litigating church-state cases. Gaylor was also a co-founder of the Wisconsin-based Women’s Medical Fund, the oldest continuously operating abortion rights charity in the U.S.

Muslim Woman Sues Over Required Removal of Hijab During Traffic Offense Booking

WZZM reported yesterday on a federal lawsuit filed last month in Grand Rapids, Michigan by a Muslim woman who was forced by Oceana County Sheriff's officials to remove her hijab (religious head covering) while being processed at the county jail for a minor traffic violation.  On May 17, Fatme Dakroub was falsely arrested for driving with an expired license while vacationing with her family at Lake Michigan sand dunes.  Her request to have a female officer handle her booking was denied, and she was forced to sit for 3 hours bare headed in a holding cell in front of male officers and inmates.

Vatican Drops the Other Shoe In Attacking Mishandling of Sex Abuse Claims

Just days after the Vatican announced a new Tribunal to hear cases of bishops who fail to protect children from sexually abusive priests (see prior posting) and the criminal indictment of the St. Paul-Minneapolis Catholic Archdiocese for inadequate responses to reports of sexual abuse (see prior posting), the Archbishop and Auxiliary Bishop of the St. Paul-Minneapolis Archdiocese have resigned. According to the National Catholic Reporter, on Monday the Vatican announced the resignations of both Archbishop John Nienstedt and Auxiliary Bishop Lee Piché. Nienstedt had been charged with mishandling complaints against convicted former priest Curtis Wehmeyer, and later unproven charges were leveled against Nienstedt himself claiming inappropriate sexual contact with adults and a boy. Piché oversaw the investigation of Nienstedt, and for a while headed the Archdiocese.  Newark, New Jersey Coadjutor Archbishop Bernard Hebda has been appointed Apostolic Administrator for the Archdiocese.

AP has a timeline of key events in the Archdiocese scandal. Wall Street Journal points out that all of this is taking place as the Archdiocese is going through a bankruptcy reorganization.

Meanwhile, the Vatican also announced on Monday that former apostolic nuncio to the Dominican Republic, Jozef Wesolowski, will be criminally tried in the Tribunal of the Vatican City State.  Wesolowski is charged with sexual abuse of minors while in the Dominican Republic, and possession of child pornography while in Rome. (See prior posting.)

Muslim Employee Not Constructively Discharged For Refusing Friday Work

In Shah v. IMI's MN, Inc, (MN App, June 15, 2015), a Minnesota appeals court, in a 2-1 decision, agreed with an unemployment law judge that a Muslim employee of an optical store was not forced to resign because of failure to accommodate her need for religious reasons not to work on Fridays. While she was scheduled two different times to work on Fridays, on both times this was changed when she complained.  The majority concluded that her resignation did not result from requiring her to choose between violating her religious beliefs or losing her job. Thus she was not entitled to unemployment compensation benefits.

Judge Minge dissented, arguing that the case should be remanded for the unemployment law judge to determine whether the employer had made a commitment to accommodate the employee's religious beliefs in the future and whether the difficulties experienced by the employee over accommodation were a material cause of the health problems that led her to resign.

Cert. Granted In Prisoner IFP Litigation Fee Case

The U.S. Supreme Court today granted certiorari in Bruce v. Samuels, (Docket No. 14-844, cert. granted 6/15/2015) (Order List), a case that is important for prisoner litigation over religious accommodations-- cases that are often brought by prisoners in forma pauperis. At issue is the interpretation of a provision in the Prison Litigation Reform Act that caps monthly payments by prisoners proceeding in forma pauperis at 20% (28 USC 1915(b)(2)).  At issue in the case is whether a prisoner who files multiple cases or appeals has his monthly payment capped at 20% of his total income, or whether he must pay 20% of his income each month for each pending case. The Circuits are split on the issue.  In the decision below (full text), the D.C. Circuit chose the per-case approach. The SCOTUS blog case page for the case is here.

Recent Articles and Books of Interest

From SSRN:

• Tom Herrenberg, Denouncing Divinity: Blasphemy, Human Rights, and the Struggle of Political Leaders to Defend Freedom of Speech in the Case of Innocence of Muslims, (Ancilla Iuris,(anci.ch) 2015: 1).
• Lucia Ann Silecchia, A Witness First Lives the Life He Proposes: Evangelization and the Catholic Lawyer, (May 21, 2015).
• Kenneth Einar Himma, The Ethics of Subjecting a Child to the Risk of Eternal Torment: A Reply to Shawn Bawulski, (June 10, 2015).
• David B. Schwartz, The NLRA's Religious Exemption in a Post-Hobby Lobby World: Current Status, Future Difficulties, and a Proposed Solution, (30 A.B.A. J. of Lab. and Emp. Law 227 (Winter 2015)).
• Frederick B. Jonassen, 'So Help Me?': Religious Expression and Artifacts in the Oath of Office and the Courtroom Oath, (Cardozo Public Law, Policy and Ethics Journal, Vol. 12, No. 2, Spring 2014).
• Priscilla J. Smith, Contraceptive Comstockery: Reasoning from Immorality to Illness in the Twenty-First Century, (Connecticut Law Review, Vol. 47, No. 4, 2015).
• Danielle Keats Citron, Hate Crimes in Cyberspace - Introduction, (Hate Crimes in Cyberspace, Harvard University Press (2014)).
• Charles R. Calleros, Advocacy for Marriage Equality: The Power of a Broad Historical Narrative During a Transitional Period in Civil Rights, (Forthcoming in 2015, Mich. St. L. Rev. for Symposium on Persuasion in Civil Rights Advocacy).

From elsewhere:

• Symposium: Polygamous Unions? Charting the Contours of Marriage Law's Frontier, 64 Emory Law Journal, Issue 6 (2015).

New Books:

• Anna Su, Exporting Freedom: Religious Liberty and American Power, (Harvard University Press, Jan. 2016).
• Mary Ziegler, After Roe: The Lost History of the Abortion Debate, (Harvard University Press, June 2015).
• Jeanette S. Jouili, Pious Practice and Secular Constraints: Women in the Islamic Revival in Europe, (Stanford University Press, 2015).

800th Anniversary of the Magna Carta; What Did It Have To Do With Religious Freedom?

Today is widely celebrated as the 800th anniversary of King John's placing his seal on the Magna Carta (full text) at the demand of rebellious barons. (Background  from the National Archives). However it is actually a revised version agreed to 4 days later that laid the foundation for the rule of law and due process for all freemen.  That is the text that has survived. As recounted by the National Archives in an article titled Magna Carta and Its American Legacy:

Of great significance to future generations was a minor wording change, the replacement of the term "any baron" with "any freeman" in stipulating to whom the provisions applied. Over time, it would help justify the application of the Charter's provisions to a greater part of the population....

What is largely forgotten, however, is that the very first of the protections set out in the Magna Carta was for the English Church (which at this pre-Reformation time still acknowledged the authority of the Pope [background]):

Know that we, at the prompting of God and for the health of our soul and the souls of our ancestors and successors, for the glory of holy Church and the improvement of our realm, freely and out of our good will have given and granted to the archbishops, bishops, abbots, priors, earls, barons and all of our realm these liberties written below to hold in our realm of England in perpetuity.

In the first place we grant to God and confirm by this our present charter for ourselves and our heirs in perpetuity that the English Church is to be free and to have all its rights fully and its liberties entirely.

This was far from the final chapter in King John's relationship with the Church.  As recounted in Meeting at Runnymede from the Constitutional Rights Foundation:

King John ... secretly wrote the Pope asking him to cancel Magna Carta on the grounds that he signed it against his will. At the same time he continued to build up his mercenary army. Not trusting John's intentions, the rebel barons held on to London and maintained their own army.

Pope Innocent III replied favorably to King John's appeal. He condemned Magna Carta and declared it null and void.... The barons charged that King John had defaulted on his agreement with them and they were justified in removing him from the throne. They offered the throne to the son of the French king, if he would aid their rebellion.

A long and bloody civil war loomed across England, when suddenly, King John died....Ten days later John's nine-year-old son, Henry, was crowned as the new king of England. With John out of the way, the conflict gradually ceased. Less than a month after Henry was crowned, his supporters confirmed Magna Carta in his name. This time it received the approval of the Pope.

Recent Prisoner Free Exercise Cases

In Rowell v. Cox, 2015 Nev. App. Unpub. LEXIS 243 (NV App., , May 27, 2015), a Nevada appeals court affirmed dismissal of an inmate's complaint that his free exercise rights under the state and federal constitutions were infringed when prison authorities refused to furnish him a low-sodium, soybean-free, kosher diet so he could meet both his health and religious needs.

In Womack v. Cross, 2015 U.S. Dist. LEXIS 73884 (SD IL, June 8, 2015), an Illinois federal district court permitted a Native American inmate to proceed with his free exercise and equal protection challenge to the prison chaplain's hostile impediments to Native American ceremonies and worship.

In Young v. Biter, 2015 U.S. Dist. LEXIS 73944 (ED CA, June 8, 2015), a California federal magistrate judge dismissed, with leave to amend, a Messianic Jewish inmate's 200-page complaint alleging, among other things, denial of a kosher diet and denial of inmate minister status.

In Anderson v. United States, 2015 U.S. Dist. LEXIS 74249 (ED MO, June 9, 2015), a Missouri federal district court dismissed a suit by a prisoner awaiting trial on possession and distribution of heroin charges seeking a declaration that the government's decision to indict him and hold him for trial violates his free exercise rights.  He claims that he "is a student of Esoteric and Mysticism studies" and that he distributes heroin to "the sick, lost, blind, lame, deaf, and dead members of Gods' Kingdom" to save their souls.

In Ramrattan v. Fischer, 2015 U.S. Dist. LEXIS 74510 (SD NY, June 9, 2015), a New York federal district court dismissed, with leave to amend, a Hindu inmate's complaint regarding failure to hire a Hindu chaplain and failure to provide him with a religious diet.

In Garcia v. Godinez, 2015 U.S. Dist. LEXIS 75125 (SD IL, June 10, 2015), an Illinois federal district court permitted an inmate who had changed his faith from Hebrew Israelite to Orthodox Jewish to move ahead with his complaint that he was being denied use of tefillin because the Department of Corrections contracted rabbi refused to instruct him in their use since he did not consider him Jewish.

In Wright v. Lassiter, 2015 U.S. Dist. LEXIS 75838 (ED NC, June 10, 2015), a North Carolina federal district court dismissed a Rastafarian inmate's complaint that prison authorities refused to recognize certain holidays he sought to observe.