UAE's New Law Bars Discrimination, Hate Speech and Insulting of Religion

The National reports that on Monday the United Arab Emirates adopted the Anti-Discriminatory Law which prohibits discrimination on the basis of religion, caste, creed, doctrine, race, color or ethnic origin. The new law also bans actions that promote religious hatred or insult God, his prophets or apostles or holy books or houses of worship or graveyards. It prohibits hate speech or the promotion of discrimination or violence against others using any form of media.

White House Honors Climate Faith Leaders

RNS reports that on Monday the White House honored 12 "Climate Faith Leaders" as part of its Champions of Change program. The White House website highlights the accomplishments of the twelve leaders-- Christian, Jewish, Muslim and Hindu-- in the environmental area.

9th Circuit: Indian Tribe's Challenge To California Geothermal Leases Can Proceed

In Pit River Tribe v. Bureau of Land Management, (9th Cir., July 20, 2015), the U.S. 9th Circuit Court of Appeals reversed the district court's dismissal of an Indian tribe's challenge to the Bureau of Land Management's extension of 26 unproven geothermal leases in northeastern California’s Medicine Lake Highlands. Several environmental groups were also plaintiffs.  The Pit River Tribe contends that development on geothermal leases will interfere with its members use of the area for spiritual and traditional cultural purposes. The Court held that plaintiffs' claims include a challenge under a provision of the Geothermal Steam Act that requires the BLM to conduct environmental, historical, and cultural review under the National Environmental Policy Act and the National Historic Preservation Act. Sacramento Bee reports on the decision.

Plaintiff Entitled To Accommodation From Affordable Care Act's Hyde Amendment Arrangement

In Howe v. Burwell, (D VT, July 20, 2015), a Vermont federal district court dealt with yet another permutation of religious objections to provisions in the Affordable Care Act.  Under the ACA, health insurers which offer policies through state exchanges may, but are not required to, cover abortion services.  If they do, in order to comply with the Hyde amendment that bars use of federal funds to pay for abortions, the insurance company is required to segregate at least $1 per month of the premium paid by each individual and use those funds to pay for abortion services. All policies offered through the Vermont exchange have this arrangement for abortion services which plaintiff claims, among other things, violates his free exercise rights under RFRA. He objects on religious grounds to funds he is required to pay in as a premium being used to pay for others' abortions.

The court held that most of plaintiff's RFRA claims against the federal government arise out of decisions third parties, such as private insurance companies, have made. However the federal government could accommodate plaintiff by refraining from enforcement actions against any insurance company that agrees not to comply with the segregation requirement for the policy offered to plaintiff. The court went on:

The Federal Defendants have already agreed not to enforce the segregation requirement against any third party health insurer willing to offer Plaintiff health insurance coverage. Notwithstanding that agreement, because the Federal Defendants have not offered this as an accommodation under RFRA on a permanent basis, Plaintiff retains standing to request it in the form of declaratory relief. ...

Plaintiffs request for a declaratory judgment that he is entitled to non-enforcement of the segregation requirement (and the separate payment) is therefore sufficiently plausible to avoid dismissal at this stage in the proceedings.

Ecclesiastical Abstention Doctrine Does Not Require Dismissal of Breach of Contract Claim

In Shannon v. Memorial Drive Presbyterian Church U.S., (TX App., July 21,2015), a Texas state appeals court held that the ecclesiastical abstention doctrine is not applicable to a claim by former Church Elementary Ministries Director Jessica Shannon that the Church breached a confidential separation agreement she had signed. The agreement involved payment to her of $25,000 to settle her claim that she had been dismissed for making sexual harassment allegations against a Church elder. As part of the agreement, the Church and Shannon each agreed not to "disparage" the other. After Shannon was hired by the Austin Presbyterian Theological Seminary as a development officer, it called the Church for references and was told by officials that the Church would not rehire Shannon and that she would not be able to raise funds anywhere in Houston. This led the Seminary to fire Shannon on the grounds that she had misrepresented the circumstances surrounding her departure from the Church.

Shannon sued the Church, claiming among other things that it violated the non-disparagement provision. The court held in part:

We may interpret a contract in a civil law controversy in purely secular terms when doing so does not require us to rely on religious precepts or resolve a religious controversy.... Making the determination of whether the Church disparaged Shannon merely involves interpreting the contract as a matter of law and applying the facts as found by the fact finder. Moreover, under these circumstances, we are not required to intervene in the hiring, firing, discipline, or administration of the Church’s clergy, address the Church’s standards of morality, or address any other matters traditionally held to involve religious doctrine.... We conclude that this lawsuit, revolving around the Church’s purported disparagement of Shannon in violation of the Agreement, is a civil law controversy in which Church officials happen to be involved.... Accordingly, the ecclesiastical abstention doctrine does not apply.

The court also concluded that the trial court had erred in invoking several other grounds for dismissing Shannon's claims. It affirmed only the trial court's dismissal of Shannon's intentional infliction of emotional distress claim.

UPDATE: On Sept. 1, 2015, the court denied a motion for rehearing and filed a Substitute Opinion: 2015 Tex. App. LEXIS 9312.

British House of Lords Debates Resolution On Religious Freedom

Law & Religion UK blog reports on the debate last week in the House of Lords (full text of July 16 debate) on a motion to:

[take] note of worldwide violations of Article 18 of the 1948 Universal Declaration of Human Rights and the case for greater priority to be given by the United Kingdom and the international community to upholding freedom of religion and belief.

Introducing the debate, Lord Alton said in part:

The four great murderers of the 20th century—Mao, Stalin, Hitler and Pol Pot—were united by their hatred of religious faith. Seventy years later, all over the world, from North Korea to Syria, Article 18 is honoured daily in its breach, evident in new concentration camps, abductions, rape, imprisonment, persecution, public flogging, mass murder, beheadings and the mass displacement of millions of people. Not surprisingly, the All-Party Group on International Freedom of Religion or Belief, in the title of its influential report, described Article 18 as “an orphaned right”....

New Jersey Archdiocese Sues Challenging Restrictions On Its Cemeteries Selling Headstones

According to the New York Times, the Catholic Archdiocese of Newark filed a federal lawsuit yesterday challenging the constitutionality of a New Jersey law (see prior posting) that bars religious groups which operate cemeteries from also selling headstones or offering various other kinds of funeral services.  The law, which takes effect next year, was enacted earlier this year in response to pressure from the trade association representing small independent companies that produce monuments and private mausoleums. Yesterday's lawsuit was filed on the Archdiocese's behalf by the Institute for Justice, a libertarian public interest law firm that pursues cases defending economic liberty.

8th Circuit: Parents Have Standing To Challenge ACA Contraceptive Coverage Requirement For Family Policy

Yesterday the U.S. 8th Circuit Court of Appeals handed down a decision that could be the precursor to a new round of challenges to the Affordable Care Act's contraceptive coverage mandate. In Wieland v. U.S. Department of Health and Human Services, (8th Cir., July 20, 2015), the court held that parents have standing to challenge provisions preventing them from obtaining insurance coverage for their daughters under a policy that excludes coverage for contraceptives.  Prior to the Affordable Care Act, Missouri law required that health insurers offer an employer a health care plan that excludes contraceptive coverage if coverage violates the employer’s religious beliefs. Also individual enrollees were permitted to opt out of contraceptive coverage based on religious objections. In a suit brought by insurance companies, a federal district court held that these provisions were pre-empted by the Affordable Care Act.

Plaintiffs in this suit are a Missouri legislator and his wife who receive family health coverage through the state of Missouri's health plan for its employees. According to the court:

The Wielands, parents of three daughters, are committed to the health and well being of their children and thus seek to ensure that their daughters have comprehensive healthcare coverage. As devout Roman Catholics, they believe that they cannot pay for or participate in a healthcare plan that includes coverage for contraceptives or provide such coverage to their daughters without violating their sincerely held religious beliefs.

National Law Journal reports on the decision.

6th Circuit: School Had Non-Retaliatory Reason To Fire Imam From Instructional Assistant Job

In Haji v. Columbus City Schools, (6th Cir., July 16, 2015), the U.S. 6th Circuit Court of Appeals held that while a prima facie case of First Amendment retaliation was made out by a Somali Muslim imam who was fired from his position as an instructional assistant in the Columbus, Ohio public schools, his suit should be dismissed because the school system showed a non-retaliatory reason for his termination. Plaintiff Abdurahman Haji claims that he was dismissed because of remarks he made at his mosque-- captured on a YouTube video-- criticizing the school system for exposing Muslim students to the polytheistic belief system of Greek mythology.  However the court found that the dismissal was justified because of Haji's leaving early on Friday's to attend mosque services, in violation of the school's attendance policy which was enforced against Haji after the controversial video was discovered.  The court also rejected Haji's Title VII religious discrimination claim growing out of his termination and earlier disciplinary action taken against him for his criticism of actions by students that he considered inconsistent with Islam. Middle East Forum blog discussed the decision.

Religion In Schools Lawsuit Settled

The American Humanist Association announced yesterday that it has reached a settlement with the Hall County, Georgia school system in a suit that sought to enjoin prayers and religious activities that are part of the District's football and other athletic programs. (See prior posting.)  According to the AHA:

Under the settlement, the school superintendent will issue a memorandum detailing the standards for religious neutrality required by the Establishment Clause of the First Amendment and the Equal Access Act to the principals in all of its 36 schools. The district will host a training session before the start of the school year for administrators, who will educate staff and coaches on their constitutional duties. The district also agrees to pay the American Humanist Association’s legal fees of $22,500.

The school district also posted an announcement of the settlement, saying in part:

All parties agree it is paramount that the Constitution of the United States is protected and upheld. Furthermore, in a manner similar to the routine training provided to staff in areas such as child abuse reporting and the security of personal records, we agree that routine professional training for staff should include the legal rights and responsibilities of individuals regarding issues related to religion in the public school setting.  While public school students are guaranteed wide-ranging religious freedoms, employees’ rights are more limited when in their work settings.

The Hall County School District admits to no violations of state or federal laws. The district will continue to hold the expectation that individuals within our organization abide by the laws of our land. The Hall County School District will make no monetary compensation to the plaintiffs. Insurance carriers are negotiating all questions regarding legal fees.

Recent Articles of Interest

From SSRN:

• Michael I. Meyerson, The Original Meaning of 'God': Using the Language of the Framing Generation to Create a Coherent Establishment Clause Jurisprudence, (Marquette Law Review, Vol. 98, No. 3, Spring 2015, pp. 1035-1102).
• Oliver Le Bot, Limitation of Animal Protection for Religious and Cultural Reasons, (July 14, 2014).
• Tariq Modood, Multiculturalism and Moderate Secularism, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2015/47, July 2015).
• Marc Greendorfer, Final Affordable Care Act Regulations, (July 14, 2015).
• Dallan F. Flake, After Abercrombie: Religious Discrimination Based on Employer Misperception, (July 16, 2015).
• Eli Wald, The Jewish Law Firm: Past and Present, (Jews in the Legal Profession, 65-124, Marc Galanter, et al eds., New Orleans: Quid Pro Press, 2014).
• Douglas NeJaime, Marriage Equality and the New Parenthood, (Harvard Law Review, Forthcoming).
• Arolda Elbasani, The Revival of Islam in the Post-Communist Balkans: Coercive Nationalisms and New Pathways to God, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2015/28, April 2015).

From SmartCILP:

• Hon. Deborah Sweet Eylar, The Early Female Jewish Members of the Maryland Bar: 1920-1929, 74 Maryland Law Review 545-582 (2015).
• Bruce Friedrich, The Church of Animal Liberation: Animal Rights as 'Religion' Under the Free Exercise Clause, 21 Animal Law 65-119 (2014).

Recent Prisoner Free Exercise Cases

In Wilkinson v. Secretary, Florida Department of Corrections, (11th Cir., July 15, 2015), the 11th Circuit vacated the district court's dismissal of an inmate's complaint that he was not permitted to observe two Santeria holy days.

In Moffat v. Department of Corrections, 2015 U.S. Dist. LEXIS 90549 (D MA, July 13, 2015), a Massachusetts federal district court dismissed a Rastafarian inmate's complaint that he was removed from the special religious diet list on two occasions after he failed to sign for his meals, but then was reinstated.

In Greene v. Cabral, 2015 U.S. Dist. LEXIS 90548 (D MA, July 13, 2015), a Massachusetts federal district court permitted an Orthodox Jewish inmate to move ahead with his claim that prison authorities regularly fail to comply with kosher standards in the kosher meals they provide inmates.

In Fonseca v. California Department of Corrections and Rehabilitation, 2015 U.S. Dist. LEXIS 90644 (SD CA, July 10, 2015), a California federal district court dismissed a Jewish inmate's complaint that his kosher meals do not contain sufficient meat.  The magistrate's recommendation in the case is at 2015 U.S. Dist. LEXIS 90668, June 10, 2015.

In Muhammad v. Mathena, 2015 U.S. Dist. LEXIS 91081 (WD VA, July 14, 2015), a Virginia federal district court dismissed an inmate's complaint that he did not receive certain of his issues of the weekly religious periodical "Final Call," and that other issues were delayed or delivered out of order.

In Abpikar v. Martin, 2015 U.S. Dist. LEXIS 93431 (ED CA, July 17, 2015), a California federal magistrate judge recommended dismissing an inmate's complaint that while in administrative segregation, he was denied group daily worship with other Muslim inmates.

Court Allows Enforcement of New Contraceptive Coverage Accommodation Rules For Closely Held Companies

In Tyndale House Publishers, Inc. v. Burwell, (D DC, July 15, 2015), the federal district court for the District of Columbia issued an order consistent with the U.S. Supreme Court's Hobby Lobby decision barring the federal government from enforcing the Affordable Care Act contraceptive coverage requirement as it existed in June 2014 against a for-profit Bible publishing company to the extent that the company has religious objections to providing coverage. However the order permits the government to enforce its newly adopted accommodation for closely held companies which allows an opt-out on religious grounds with contraceptive coverage then being furnished directly by the insurance company. The court's order though adds that nothing prevents plaintiffs from filing a new civil action challenging the accommodation rules. In a press release, Alliance Defending Freedom describes the court's order as a "victory" for the Bible publisher.

Minister's Challenge To Applying Building Code To Home Bible Study Group Is Dismissed

In Salman v. Phoenix, City of, (D AZ, July 14, 2015), an Arizona federal district court dismissed a 42 USC Sec. 1983 suit by a minister and his wife seeking to enjoin the city from applying its building code to weekly bible studies held in a 2000 square foot game room built in their backyard. The minister had already been convicted criminally in state court for building code violations. The court dismissed the claim on the basis that a federal habeas corpus action is the only federal court route available to bring a suit that would necessarily challenge the validity of a state criminal conviction. The court said:

A § 1983 plaintiff’s request that a federal court declare unconstitutional the very statute (or its application to the plaintiff) under which he was convicted in state court is no different than a request that a federal court invalidate the conviction itself.

The court also dismissed plaintiffs' RLUIPA and state law claims.

EEOC Holds That Sexual Orientation Discrimination Is Covered Under Title VII

In a July 15 decision (full text), the Equal Employment Opportunity Commission reversed and remanded the Federal Aviation Administration's rejection of an employment discrimination complaint by an FAA employee who claimed he was denied a promotion because he is gay.  In a precedent setting opinion, the EEOC held that:

allegations of discrimination on the basis of his sexual orientation state a claim of discrimination on the basis of sex within the meaning of Title VII.

In reaching its conclusion, the EEOC drew analogies to cases in which courts have held that discrimination on the basis of an employee's association with persons of another race amounts to racial discrimination. It added that sexual orientation discrimination is necessarily based on gender stereotypes. The EEOC also rejected the argument that unsuccessful efforts to obtain passage of legislation in Congress explicitly adding sexual orientation to Title VII should lead it to reject the discrimination claim here. The Washington Blade and Dale Carpenter at Volokh Conspiracy have more on the decision.

Meanwhile the EEOC features a posting on its website titled What You Should Know About EEOC and the Enforcement Protections for LGBT Workers. 

Marriage Equality Group Will Celebrate Victory By Going Out of Business

The advocacy group Freedom To Marry, founded in 2001 to push for legalization of same-sex marriage, is taking the rare step of going out of business now that its goal has been accomplished.  Wednesday's Wall Street Journal reported that unlike many other non-profits that find a new cause to promote, Freedom To Marry will help its staff find other positions, will make certain that its records are archived, and then will close down completely by February. [Thanks to How Appealing for the lead.]

President Sends Eid-ul-Fitr Greetings

Yesterday President Obama issued a statement (full text) extending warmest wishes to Muslims in the United States and around the world celebrating Eid-ul-Fitr-- the end of Ramadan. He said in part:

As Muslim Americans celebrate Eid across America, the holiday is a reminder to every American of the importance of respecting those of all faiths and beliefs. This past year New York City Public Schools announced adding Eid to their official school calendars alongside Christmas, Hanukkah and other holidays – an acknowledgement of the great diversity and inclusiveness that adds to the richness of our nation....

Michelle and I hope today brings joy to all of your homes, both here in the U.S. and around the world. From my family to yours, Eid Mubarak! 

The Eid is celebrated today in the United States.

Kansas Trial Court Applies Neutral Principles Approach In Suit Over Presbyterian Church Property

KCTV News reports on a decision handed down this week by the Kansas 10th Judicial District trial court in a dispute between two factions of the Presbyterian Church of Stanley over ownership of church property. Last year, the pastor and 300 parishioners of the Overland Park, Kansas congregation broke away from the Presbyterian Church (USA) and affiliated with the more conservative Evangelical Covenant Order of Presbyterians. The parent body, Heartland Presbytery, filed suit over ownership. The court ordered the two factions to pray in separate rooms in the church while the case was in litigation. Wednesday the court issued a ruling, holding that the property does not belong to the Presbytery, but does belong to the local congregation that remains with the PCUSA. The court used a "neutral principles" approach, even though traditionally Kansas courts have deferred to the decision of the parent body in churches with a hierarchical structure.

In its decision, the court rejected the argument that under church law the property is held in trust for the regional Presbytery.  Because the deed and mortgages are in the name of the local congregation, it is the owner. However on the question of which faction constitutes the local congregation, the court deferred to the PCUSA Constitution finding that the faction remaining loyal to it was entitled to ownership rights. The court gave the parties ten days to work out building occupancy arrangements.

Russia's Constitutional Court: Russian Constitution Supreme Over European Human Rights Court Orders

RT reports on a decision handed down Tuesday by Russia's Constitutional Court holding that decisions of the European Court of Human Rights do not take precedence over the Russian Constitution. The decision came in a suit filed by a group of State Duma deputies, representing all four parliamentary caucuses. They challenged Russian laws that appear to require Russian courts and state agencies to carry out all orders of the European Court. In its decision, Russian court said in part:

The European Convention for the Protection of Human Rights and Fundamental Freedoms as well as legal positions of the ECHR that are based on it cannot cancel the priority of the Constitution. All decisions of the ECHR must be executed only with consideration to the Russian Constitution’s supremacy. As an exception, Russia can refuse to fulfill the imposed obligations when such a refusal is the only way to prevent the violation of the basic law.

It is expected that the decision may be used as a basis for challenging a European Court decision last year that ordered Russia to pay $2.5 billion in compensation for dissolving the Yukos Oil Co.

Seattle Mayor Recommends Increasing Access To Sharia-Compliant Housing Loans

According to yesterday's Puget Sound Business Journal, a committee appointed by Seattle (WA) Mayor Ed Murray to come up with recommendations for increasing housing in Seattle has released its report. One of its recommendations is to find ways to increase access to Sharia-compliant housing loans. It is estimated that some 200 people are not borrowing to buy houses because of the unavailability of loans structured to avoid the interest prohibitions of Islamic law.