Supreme Court Holds Fair Housing Act Supports Disparate-Impact Claims

Today in a 5-4 decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., (Sup. Ct., June 25, 2015), the U.S. Supreme Court held that disparate-impact claims, not just intentional discrimination claims, are cognizable under the federal Fair Housing Act.  In an opinion by Justice Kennedy, joined by Justices Ginsberg, Breyer, Sotomayor and Kagan, the court held that while the statute which bars discrimination in the sale or rental of housing because of race, color, religion, sex, handicap, familial status, or national origin supports challenges to policies that cause racial or other disparities, there are significant limitations on such claims, saying:

If the specter of disparate-impact litigation causes private developers to no longer construct or renovate housing units for low-income individuals, then the FHA would have undermined its own purpose as well as the free-market system.

Justice Kennedy went on for 5 pages discussing the required safeguards against inappropriate disparate-impact claims, saying in part:

An important and appropriate means of ensuring that disparate-impact liability is properly limited is to give housing authorities and private developers leeway to state and explain the valid interest served by their policies. This step of the analysis is analogous to the business necessity standard under Title VII and provides a defense against disparate-impact liability....

It would be paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapidated housing in our Nation’s cities merely because some other priority might seem preferable. Entrepreneurs must be given latitude to consider market factors. Zoning officials, moreover, must often make decisions based on a mix of factors.... The FHA does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether they choose to rejuvenate a city core or to promote new low-income housing in suburban communities.

Justice Alito wrote a dissenting opinon joined by Chief Justice Roberts and Justices Scalia and Thomas.  Justice Thomas also filed a separate dissent.

Case Challenging Library Conference Room Policy Settled

On Tuesday, a North Carolina federal district court entered a Stipulated Final Judgment (full text) in Liberty Counsel, Inc. v. County of Wake, North Carolina (ED NC, June 23, 2015) after the parties agreed to settle the case. In the case, plaintiff challenged the county library's conference room policy that permitted non-profit groups to use library conference rooms for cultural, civic and informal educational purposes, but not for religious instruction, religious services or religious ceremonies. (See prior posting.) According to Liberty Counsel's press release, in the settlement "the library agreed to remove all offending bans on religion." The court's order also awarded nominal damages of $100 to plaintiff, and retained jurisdiction to enforce other parts of the settlement agreement if necessary.

Religious Discrimination Claim Moves Ahead Against Loan Company Denying Entry To Woman Wearing Hijab

In Ali v. Advance America Cash Advance Centers Inc., (ED MI, June 24, 2015), a Muslim woman brought a discrimination lawsuit against an Inkster, Michigan financial services outlet that refused her entry under its policy that customers must remove sunglasses and hats before entering.  Plaintiff, who wanted to purchase a money order, was wearing a hijab.  A Michigan federal district court held that plaintiff's complaint did not allege racial discrimination under 42 USC 1981, nor did it allege national origin discrimination under Michigan's Elliott-Larsen Civil Rights Act.  However it did allege religious discrimination under the Michigan statute. The court refused to grant defendants summary judgment on this claim, holding that there remains a factual question regarding reasons for the policy.  Defendants claimed that it is a safety policy designed to deter criminal behavior and advance employee safety.  The policy only applies in the company's branches that lack bullet-resistant glass. Plaintiff claims that this reason is pretextual.

Islamic State Militants Destroy Two Historic Tombs In Palmyra, Syria

AP reported yesterday that in Syria, Islamic State militants have destroyed two historic mausoleums in or near their recently-captured historic city of Palmyra.  One was the grave of Shiite saint Mohammad Bin Ali, a descendant of Imam Ali who was the cousin of the Prophet Muhammad. The second was the grave of Sufi scholar Nizar Abu Bahaa Eddine.  IS radicals are Sunnis who view Shiites as heretics and who believe that visiting tombs and religious shrines amounts to idol worship. Syria's Ministry of Culture posted photos of the destruction. CNN has additional details.

Ohio Police Department Will Continue Hijab Ban

The Columbus, Ohio Police Division has decided to continue its ban on officers wearing headscarves, despite publicity earlier this year about a Somali-American Muslim recruit who dropped out of the department's police academy because of the ban on her wearing a hijab.  According to yesterday's Columbus Dispatch, Deputy Police Chief Michael Woods explained the decision:

We want to interact with all members of the community without a preconceived notion of who we are. We strive to be a nonpolitical, nonreligious organization.

The assistant city attorney representing the Police Division says that case law supports the continued headscarf ban, pointing to the 2007 Pennsylvania federal district court decision in Webb v. City of Philadelphia. (See prior posting).

California AG Need Not Process Unconstitutional Anti-Gay Ballot Proposal

In Harris v. McLaughlin, (CA Super. Ct., June 22, 2015), a California trial court judge entered a default judgment allowing California's attorney general to ignore the statutory requirement to prepare a circulating title and summary for a proposed anti-gay ballot measure that had been filed.  These steps are required before the proponent can attempt to obtain the required number of signatures. The measure, the so-called Sodomite Suppression Act, would have barred "sodomistic propaganda" and called for the killing of anyone who "willingly touches another person of the same gender for purposes of sexual gratification" (see prior posting). The court held that the proposal "is patently unconstitutional on its face" and that any action by the attorney general moving ahead with the proposal "would be inappropriate, waste public resources, generate unnecessary divisions among the public, and tend to mislead the electorate." Huntington Beach Independent reports on the decision.

Taxi Commission Rule Requiring Black Pants Violates Muslim Driver's Religious Freedom

In Naeem v. Metropolitan Taxicab Commission, (MO Cir. Ct., June 22, 2015), a Missouri trial court reversed a license suspension (which had previously been stayed by the court pending litigation) and fines that the St.Louis area taxicab commission had imposed on Muslim taxicab driver Raja Naeem who violated the commission's regulation requiring drivers to wear white shirts and black pants.  Naeem believes that his religion requires him to wear certain clothing, including white pants. The court held that the commission rule violates Naeem's religious liberty. As reported by the St. Louis Post-Dispatch, the Taxicab Commission had granted Naeem a compromise. He could wear a loose-fitting kurta instead of a shirt, if it was white and did not go below his thighs. However his pants or shalwar had to be black. The court held:

In the case at bar, Mr. Naeem's right to express his religious beliefs by his mode of dress is directly infringed by the Commission's dress code. The Missouri Constitution clearly prohibits such infringement. Further commentary would be superfluous.

The court also held that the regulation, even though a generally applicable rule, violates Naeem's First Amendment rights:

No interest other than esthetics is served by the uniform code....  Even under the reasoning of Smith... the regulation must fail. Wearing particular clothing as part of the practice of one's religion also implicates the First Amendment guaranty of freedom of speech. When both speech and religion are affected by a regulation, there must be a compelling justification. 

Obama Hosts White House Iftar Dinner

On Monday night, President Obama hosted the White House's annual Iftar dinner recognizing the importance of Ramadan to Muslims around the world. In his remarks (full text), the President gave special recognition to one guest, Samantha Elauf, the successful complainant in the U.S. Supreme Court's recent Abercrombie & Fitch decision on the right to wear a hijab at work. (See prior posting.) Speaking to the guests that included members of the diplomatic corps and Congress, government officials and invited young people, Obama also said in part:

 So tonight, we keep in our prayers those who are suffering around the world, including those marking Ramadan in areas of conflict and deprivation and hunger.  The people of Iraq and Syria as they push back on the barbarity of ISIL.  The people of Yemen and Libya, who are seeking an end to ongoing violence and instability.  Those fleeing war and hardship in boats across the Mediterranean.  The people of Gaza, still recovering from last year’s conflict.  The Rohingya in Myanmar, including migrants at sea, whose human rights must be upheld. 

Cert. Petition Filed In Challenge To Differential NY Child Protection Safeguards For Private Schools

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in U.L. v. New York State Assembly.  In the case, the U.S. Second Circuit Court of Appeals rejected 1st and 14th Amendment challenges to New York's statutory exclusion of private schools (including religious schools) from some of the state child protection requirements that are mandatory in public schools. (See prior posting.) [Thanks to Elliot Pasik for the lead.]

British Court Holds Jehovah's Witness Parent Body Vicariously Liable In Clergy Sex Abuse Case

A v. Trustees of the Watchtower Bible and Tract Society, (EWHC, June 19, 2015), involves claims against a Jehovah's Witness congregation (actually its successors) and the Jehovah's Witness parent body by a 29-year old woman who between the ages of 4 and 9 was sexually abused by Peter Stewart, a Jehovah's Witness ministerial servant. A judge on England's High Court (Queen's Bench) held the Watchtower Bible and Tract Society vicariously liable for the failure of the Elders in the congregation to take reasonable steps to protect claimant from Peter Stewart after they became aware in 1990 that he had sexually assaulted another child in the congregation. The court also held defendants vicariously liable for the sexual assault itself, saying:

Whether the abuse took place at or after book study at whoever's home, on field service, at Kingdom Hall or at the Convention, he was ostensibly performing his duties as a Jehovah's Witness ministerial servant. I am satisfied that the progressive acts of intimacy were only possible because he had the actual or ostensible status of a ministerial servant that meant no one who saw him questioned his being alone with the claimant.

Law & Religion UK has more on the decision.

Zoroastrians In Kurdistan Threaten To Sue Company Over Use of Sacred Text Name For Diapers

In the Kurdistan Region of Iraq, members of the Zoroastrian religious minority are threatening to bring a lawsuit against the Avesta Baby Diaper company.  Rudaw reported yesterday that "Avesta" is the name of Zoroastrian sacred scriptures and the word is holy to Zoroastrians.  The owner of the diaper company says he did not know of the religious connection; he chose the Kurdish name as a courtesy to Kurds. But now, he says, the brand name is popular with customers, and changing it would cause a major financial loss.  He adds that he would consider changing the name if he were compensated for the losses involved. The head of a Zoroastrian advocacy group says he believes the owner of the diaper company, a Muslim, chose the name deliberately.

5th Circuit Rejects RFRA Challenge To Contraceptive Mandate Accommodation For Religious Non-Profits

In East Texas Baptist University v. Burwell, (5th Cir., June 22,2015), the U.S. 5th Circuit Court of Appeals upheld the Obama administration's rules that allow religious non-profits to opt out of the Affordable Care Act's contraceptive coverage mandate by certifying their religious opposition and either notifying their insurer or plan administrator of their opposition, or furnishing the Department of Health and Human Services with the name and contact information for their insurer or administrator.  In either case, the insurer or administrator must then offer coverage directly.  Plaintiffs argued that this accommodation still violates their religious freedom rights under RFRA.  The court disagreed, saying in part:

Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives. Instead, the acts that violate their faith are those of third parties. Because RFRA confers no right to challenge the independent conduct of third parties, we join our sister circuits in concluding that the plaintiffs have not shown a substantial burden on their religious exercise.

Slate reports on the decision.

SEC Interprets Terms In Securities Laws To Include Same-Sex Marriages

The Securities and Exchange Commission on June 19 issued Release No. 33-9850 (full text) formally interpreting the terms "spouse" and "marriage" in the federal securities laws and rules to include same-sex spouses and same-sex marriages where the couple is lawfully married under state law, regardless of their domicile.

After Policy Change, Court Dissolves Injunction Forcing Carrying of Anti-Islam Bus Ads

As previously reported, in April a New York federal district court granted a preliminary injunction to a pro-Israel advocacy group requiring the New York Metropolitan Transit Authority to accept the group's anti-Islam ad for display on the back of New York City buses. The controversial ad declared that "killing Jews" draws Muslims closer to Allah. The MTA responded to the court order by changing its policy and barring all ads of a political nature.  Now in American Freedom Defense Initiative v. Metropolitan Transit Authority, (SD NY, June 19, 2015), the federal district court granted the MTA's motion to vacate the preliminary injunction, finding that the new policy has rendered the preliminary injunction moot.  The court said in part:

In this case, the only conduct that the Court previously enjoined as unconstitutional was the defendants’ exclusion of the Killing Jews ad under the “incitement of violence” standard.  The defendants are now only excluding the Killing Jews ad under the New Policy banning political ads, a policy they assert that they have no plans of revising.... Thus, the defendants have ceased the conduct that the Court identified as unconstitutional....

[I]t is likely that the MTA’s exclusion of all political ads has converted its advertising space from a designated public forum to a limited public forum or a nonpublic forum.

Raw Story reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:

• Christine A. Corcos, Seeing it Coming Since 1945: State Bans and Regulations of 'Crafty Sciences' Speech and Activity, (37 T. Jefferson L. Rev. 39 (2014)).
• Milad Haghani, Iran Denies Education Rights to Bahá’ís, (Western Journal of Legal Studies, Vol. 4, No. 1, 2014).
• Tipu Salman Makhdoom, Can Legal Fiction Overcome Religious And Constitutional Locks? Death Penalty: A Pakistani Perspective, (July 1, 2014).
• Vito Breda, Over the Secular Ridge of Human Wants: The Constitutional Legitimacy of Secular-State Funding of Religious Education in Australia and Europe, (June 16, 2015).
• Patrick Talbot, Same-Sex Marriage and Religious Liberty Clashes in the U.S.: (An American Constitutional Challenge), (Anthology on Religious Freedom by Center of Ethics and Socio-religiosity Studies Petra Christian Univesity (PCU), Forthcoming).
• Margaret F. Brinig, Two Treatments of Pluralism: Canada and the United States, (Notre Dame Legal Studies Paper No. 1517, June 2015).
• Margaret F. Brinig, Religion and Child Custody, (Notre Dame Legal Studies Paper No. 1518, June 2015).
• Maura I. Strassberg, Scrutinizing Polygamy: Utah’s Brown v. Buhman and British Columbia’s Reference Re: Section 293, (Emory Law Journal, Vol. 64, p. 1815, 2015).
• Sarah Adams-Schoen, Land Use Law Update: Will Reed v. Town of Gilbert Require Municipalities Throughout the Country to Rewrite Their Sign Codes?, (29 Municipal Law Journal 16 (Winter 2015)).

From SmartCILP:

• Janet R. Decker & Kari A. Carr, Church-State Entanglement at Religiously Affiliated Charter Schools, 2015 Brigham Young University Education & Law Journal 77-105.
• Lucien J. Dhooge, Public Accommodation Statutes and Sexual Orientation: Should There Be a Religious Exemption for Secular Businesses?, 21 William & Mary Journal of Women & the Law 319-378 (2015).
• Robin Fretwell Wilson & Anthony Michael Kreis, Embracing Compromise: Marriage Equality and Religious Liberty in the Political Process, [Abstract], 15 Georgetown Journal of Gender & the Law 485-541 (2014).

Senate Version of Defense Authorization Act Passes--Several Provisions On Religion In the Military

As reported by U.S. News, last Thursday the U.S. Senate by a vote of 71-25 passed its version of H.R.1735, the National Defense Authorization Act for Fiscal Year 2016 (full text).  The bill now goes to conference with the House that passed its own version last month.  The Senate bill includes several provisions relating to religion in the armed forces:

• Section 505: (a) AUTHORITY.—Section 1253 of title 10, United States Code, is amended by adding at the end the following new subsection:
   ‘‘(c) EXCEPTION FOR CHIEFS OF CHAPLAINS AND DEPUTY CHIEFS OF CHAPLAINS.—The Secretary of the military department concerned may defer the retirement under subsection (a) of an officer serving in a general or flag officer grade who is the Chief of Chaplains or Deputy Chief of Chaplains of that officer’s armed force. Such a deferment may not extend beyond the first day of the month following the month in which the officer becomes 68 years of age.’’.
  
•  Section 524: (a) FINDINGS.—Congress finds the following:
  (1) The United States military includes individuals with a variety of national, ethnic, and cultural backgrounds that have roots all over the world.
  (2) In addition to diverse backgrounds, members of the Armed Forces come from numerous religious traditions, including Christian, Hindu, Jewish, Muslim, Sikh, non-denominational, nonpracticing, and many more.
  (3) Members of the Armed Forces from diverse backgrounds and religious traditions have lost their lives or been injured defending the national security of the United States.
  (4) Diversity contributes to the strength of the Armed Forces, and service members from different backgrounds and religious traditions share the same goal of defending the United States.
  (5) The unity of the Armed Forces reflects the strength in diversity that makes the United States a great Nation.

(b) SENSE OF CONGRESS.—It is the sense of Congress that the United States should—
(1) continue to recognize and promote diversity in the Armed Forces; and
(2) honor those from all diverse backgrounds and religious traditions who have made sacrifices in serving the United States through the Armed Forces.

•  Section 829: The Department of Defense may not preclude a non-profit organization from competing for a contract for religious related services on a United States military installation. 

Recent Prisoner Free Exercise Cases

In Robinson v. Jackson, (6th Cir., June 15, 2015), the 6th Circuit held that vegetarian meals satisfied an inmate's need for a Halal diet.

In Mauwee v. Palmer, 2015 U.S. Dist. LEXIS 77830 (D NV, June 16, 2015), a Nevada federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 77833, May 26, 2015) and dismissed a complaint by a Native American inmate that his eagle talon-- a sacred object-- was confiscated and destroyed before he completed the grievance process.

In Cohee v. Coupe, 2015 U.S. Dist. LEXIS 77940 (D DE, June 16, 2015, a Delaware federal district court permitted plaintiff, who is a Thelemite, to proceed with his complaint that when he was transferred to the hole he was denied access to his religious book and was advised that he could only have a Bible or the Qur'an. He did not have a constitutional claim regarding theft of several of his religious books.

In Rogers v. Molina, 2015 U.S. Dist. LEXIS 78010 (ND CA, June 15, 2015), a California federal magistrate judge held that a nursing home resident can proceed with his complaint that while in the emergency room, sheriff's deputies instead of providing him a wheelchair, a threw him to the ground and, among other things, seized blessing oil that he uses to practice his religion.

In O'Neal v. Amah, 2015 U.S. Dist. LEXIS 78716 (ED CA, June 16, 2015, a California federal magistrate judge allowed an inmate to move ahead with his complaint that when he was moved to a new facility he was denied a religious diet for over 60 days. He was given leave to amend his complaint to more clearly allege facts regarding denial of access to weekly church services much of the time.

In Nance v. Miser, 2015 U.S. Dist. LEXIS 79136 (D AZ, June 16, 2015), an Arizona federal district court dismissed a Muslim inmate's complaint that a Halal diet with meat was unavailable, but permitted him to move ahead with his 1st Amendment damage claim for denial of a shaving waiver for 7 months.

DC Circuit: Anti-Injunction Act Does Not Bar Suit Challenging Alleged Special IRS Review of Zionist Groups

In Z Street v. Koskinen, (DC Cir., June 19, 2015), the D.C. Circuit Court of Appeals held that the Anti-Injunction Act, which prohibits suits to restrain the assessment or collection of any tax, does not bar a suit by a pro-Israel non-profit organization that sued to prevent allegedly unconstitutional delay in processing its application for non-profit status.  Z Street claimed that the IRS has a special Israel policy that results in special scrutiny, and thus delay, of applications by groups holding political views on the Middle East inconsistent with those of the Obama administration. Jewish Press reports on the decision.

Texas Supreme Court: State Lacks Standing To Appeal Trial Court's Grant of Same-Sex Divorce

In a 5-3 decision, the Texas Supreme Court yesterday in State of Texas v. Naylor  (TX Sup. Ct., June 19, 2015), held that the state lacks standing to appeal a divorce decree of sorts that had been granted by a trial court to a lesbian couple.  In the case, the couple had been legally married in Massachusetts, but were now Texas residents.  The trial court recognized the problem of issuing a decree since under Texas law the couple's marriage was not recognized.  Instead it issued an order-- pursuant to an agreement of the parties-- which was "intended to be a substitute for ... a valid and subsisting divorce... and is intended to dispose of all economic issues and liabilities as between the parties whether they [are] divorced or not."  After the order was entered, the state of Texas filed a motion to intervene to defend the Texas law that limits divorce actions to opposite-sex couples who are married to one another.

The Supreme Court's majority opinion by Justice Brown held that the state was too late in attempting to intervene as a party since it did not try to do so until after a decree was entered.  It also held that the state did not show grounds to maintain a third-party appeal of the trial court's decision. Justice Boyd filed a concurring opinion emphasizing that the state is in no way bound by the trial court's decree.

Justice Willett delivered a dissenting opinion (which was joined by Justices Guzman and Devine) concluding:

In my view, the attorney general—constitutionally bound to “represent the State in all suits” has an interest sufficient to intervene to defend Texas law against perceived constitutional attack. His arguments may not prevail, but he should be allowed to make them.

Justice Devine also filed a separate dissent reaching the merits and concluding that the Texas ban on same-sex marriages is constitutional.  Thus, since the parties were not married, the trial court lacked jurisdiction over the divorce action. Dallas Morning News reports on the decision. [Thanks to How Appealing for the lead.]

9th Circuit Rejects Inmate's RLUIPA Claim For Racially Segregated Cell

In Walker v. Beard, (9th Cir., June 18, 2015), the U.S. 9th Circuit Court of Appeals rejected an Aryan Christian Odinist prison inmate's claim that under RLUIPA he should be exempt from being classified as eligible for placement in a racially mixed cell-- just as inmates who have a history of perpetrating or being victimized by racial violence are exempted. Here inmate Dennis Walker claimed that part of his Odinist religious practice is "the spiritual circle of Odinist Warding" ritual. The presence of a non-Aryan in his cell during the ritual would pollute the spiritual circle.  The court held that even though "the racially eligible classification  under the Housing Policy substantially burdens his religious exercise," the state has a compelling interest in complying with constitutional requirements barring racial segregation in prisons, and its actions were the least restrictive means to further this compelling interest.  The court added:

it is possible to imagine how the State might have maintained its race-neutral celling policy and offered an accommodation to Walker – for example, by giving him time outside his cell to perform the warding ritual by himself. But Walker never asked for such relief, nor has he given any indication that he would accept anything short of being assigned a white cellmate. The State has no additional obligation under RLUIPA independently to research and propose every possible way of mitigating that practice’s negative effects.... If Walker wants time outside his cell to perform the ritual, he needs to ask for it. If the State were to refuse him, that might be the basis for a separate RLUIPA challenge, but it does not bear on the challenge here, which is to the application of the Housing Policy to him without an exemption.

The court also rejected Walker's 1st Amendment free exercise argument.  Sacramento Bee reports on the decision.