Indian Court Bars Jain Practice of Santhara As Suicide

In India, the Rajasthan High Court, acting on a public interest petition, held that Santhara, a traditional Jain practice of starving oneself to death to attain salvation (background), is suicide under the Indian Penal Code. Thus Sec. 306 outlawing abeting of suicide and Section 309 outlawing attempted suicide apply. The court said in part:

The respondents failed to establish that Santhara is an essential religious practice without which the following of Jain religion is not permissible.

According to the Calcutta Telegraph, the activist who filed the suit says: "... Santhara is a way devised by the family to get rid of the economic burden of caring for its elderly." Jain organizations say they will appeal the decision.

Ohio Supreme Court Board Issues Advisory Opinion On Judges' Refusal To Perform Same-Sex Marriages

The Ohio Supreme Court's Board of Professional Conduct has issued an advisory opinion on Judicial Performance of Civil Marriages of Same-Sex Couples.  In Opinion 2015-1 (Aug. 7, 2015), the Board concluded:

A judge who performs civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages, based upon his or her personal, moral, and religious beliefs, acts contrary to the judicial oath of office and Jud. Cond. R. 1.1, 1.2, 2.2, 2.3, 2.4, 2.11, and Prof. Cond. R. 8.4(g).

A judge who takes the position that he or she will discontinue performing all marriages, in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs, may be interpreted as manifesting an improper bias or prejudice toward a particular class. The judge’s decision also may raise reasonable questions about his or her impartiality in legal proceedings where sexual orientation is at issue and consequently would require disqualification under Jud. Cond. R. 2.11.

The Board refused to address questions regarding assignment or rotation of judges conducting marriages at a court.

Yesterday's Columbus Dispatch reported on the advisory opinion. The issue was highlighted in Ohio last month when Toledo Municipal Court Judge C. Allen McConnell's bailiff told a same-sex couple who had been issued a marriage license that McConnell does not do "these types of marriages." (See prior posting.)

Supreme Court Is Asked To Review New Jersey Reparative Therapy Ban

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Doe v. Governor of New Jersey.  In the case, the 3rd Circuit Court of Appeals  rejected a constitutional challenge to a New Jersey statute that bans "sexual orientation change efforts" counseling for minors. Liberty Counsel issued a press release announcing the filing of the petition for review.

Judge Orders Marriage and Writing Bible Verses As Conditions of Probation

KLTV News reported last week on the July sentencing hearing in Smith County, Texas of  Josten Bundy for assaulting his girlfriend Elizabeth Jayne's former boyfriend. The two got into a fight when the former boyfriend said disrespectful things about  Elizabeth.  At the sentencing hearing, Judge Randall Rogers said he would grant probation instead of 15 days in jail if Bundy married Jayne within 30 days.  The probation terms also included writing Bible verses and getting counseling.  Yesterday Americans United released a letter (full text) that it sent to Judge Rogers arguing that the probation terms violate the Establishment Clause and the right to privacy.

UPDATE: The Freedom From Religion Foundation announced that on Aug. 13 it filed a formal complaint against Judge Rogers with the Texas State Commission on Judicial Conduct.

Marijuana Possession Conviction of Rastafarian Does Not Violate Free Exercise Clause

In State of New Jersey v. Forchion, (NJ App., Aug. 7, 2015), the New Jersey Superior Court Appellate Division in an appeal of a conviction for possessing marijuana rejected a claim by a Rastafarian that his First Amendment free exercise rights are infringed by criminalizing the possession of cannabis which is a sacrament used in his faith.  The court held that the statute is neutral and generally applicable, and "the fact that marijuana may be medically prescribed for some New Jersey citizens does not create a secular exemption that triggers strict scrutiny analysis."

Article Explores Barriers To Abortion Rights For Jail Inmates

Truthout yesterday published a lengthy investigative article on the barriers sometimes thrown up by jails to prevent women inmates from obtaining abortions. The article begins:

Should sheriffs and other jail staff be allowed to decide whether a woman can obtain an abortion? When a woman is arrested and incarcerated, should her reproductive rights be stripped from her? Based on their actions against a woman in custody this past month, Rick Singleton, the sheriff of Lauderdale County Jail in Florence, Alabama, and district attorney Chris Connolly seem to think so. They may also have set a precedent for any other law enforcement seeking to prevent women from seeking abortions—throw up enough obstacles and she'll decide to carry the pregnancy to term.

Houston Pastors' Group Sues Mayor For Legal Fees and Damages In Fight Over Equal Rights Ordinance

Now that the Texas Supreme Court has ordered the city of Houston to place a referendum on the ballot that seeks to repeal Houston's Equal Rights Ordinance (HERO) (see prior posting), the Houston Area Pastors Council announced last week that it has filed a lawsuit in state court against Houston, Texas mayor Annise Parker to recover legal fees and damages it incurred in the litigation.  Much of the opposition to HERO came from pastors who objected to its protection of transgender rights, and the mayor created particular controversy by initially subpoenaing the pastors' sermons and other documents  relating to their support of the ordinance. (See prior posting.) Houston Chronicle and the Houston Memorial Examiner report on this latest lawsuit which accuses Mayor Parker with interfering with citizens' right to vote.

RLUIPA Lawsuit Challenges Denial of Permit To Christian School

According to the Livingston (MI) Daily, on Friday Livingston Christian Schools filed a RLUIPA lawsuit in federal district court against Genoa County, Michigan over Genoa Township's denial to it of a special use permit that would have allowed it to relocate to the Brighton Church of the Nazarene facilities.  In turn, Light of the World Academy planned to move into the facility in Pickney that Livingston Christian would vacate. The township board voted 4-3 to deny the permit that had been recommended by the planning commission because of traffic concerns.

Recent Articles of Interest

From SSRN:

• Rex Ahdar, A Real Threat or a Mere Shadow? School Chaplaincy Programs and the Secular State, (University of Queensland Law Journal, vol 33. no 1 (2014): 29-41).
• Joshua C. Tate, Episcopal Power and Royal Jurisdiction in Angevin England, (Studies in Canon Law and Common Law in Honor of R.H. Helmholz, Robbins Collection Studies in Comparative Legal History (Troy L. Harris ed., 2015), pp. 15-26).
• Jayanth K. Krishnan & Patrick W. Thomas, Surveying Key Aspects of Sociolegal Scholarship on India: An Overview, (Annual Review of Law and Social Science (2015, Forthcoming)).
• Christopher Tomlins, Debt, Death, and Redemption: Toward a Soterial-Legal History of the Turner Rebellion, (David S. Cowan and Dan Wincott, editors, Exploring the Legal in Socio-Legal Studies (London: Palgrave-Macmillan), January 2016, Forthcoming).
• Erwin Chemerinsky & Michele Goodwin, Compulsory Vaccination Laws are Constitutional, (Northwestern University Law Review, Vol. 110, 2015/16 Forthcoming).
• Christopher C. Lund, Leaving Disestablishment to the Political Process, (Duke Journal of Constitutional Law & Public Policy, Vol. 10, p. 45, 2014).
• Sarah Beth D'Alessandro, Commerce in Human Organs: A Study of Jewish Legal Themes Underlying a Contemporary Controversy, (August 5, 2015).
• Daniel Golebiewski, Roman Catholic Traditions and LGBT Rights in Poland and France, (Rights for All? Sexual Orientation, Religious Traditions, and the Challenge of Inclusion The Center for International Human Rights, John Jay College, February 2015).
• Hillel Y. Levin, Allan J. Jacobs & Kavita Arora, To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?, (UGA Legal Studies Research Paper No. 2016-24 (Aug. 2015)).

From SSRN (Marriage):

• Robin Fretwell Wilson & Anthony Michael Kreis, Embracing Compromise: Marriage Equality and Religious Liberty in the Political Process, (Georgetown Journal of Gender and the Law, Vol. 15, No. 485, 2014).
• Doron M. Kalir, Same-Sex Marriage and Jewish Law: Time for a New Paradigm? (Cleveland-Marshall Legal Studies Paper No. 15-284, Aug. 2015).
• Toni M. Massaro, The Lawfulness of the Same-Sex Marriage Decisions: Charles Black on Obergefell, Arizona Legal Studies Discussion Paper No. 15-27 (July 2015).

From SSRN (Islam):

• Arolda Elbasani & Olivier Roy, Islam in the Post-Communist Balkans: Alternative Pathways to God, (Southeast European and Black Sea Studies, Online First, Forthcoming).
• Arolda Elbasani, Islam and Democracy at the Fringes of Europe: The Role of Useful Historical Legacies, (Politics and Religion 8 (2), 334-357, 2015).
• J. Robert Brown, Secularism, Sharia, and the Turkish Financial Markets, (Brooklyn Journal of International Law, Vol. 40, No. 2, 2015).

From SmartCILP and elsewhere:

• Dallan F. Flake, Bearing Burdens: Religious Accommodations that Adversely Affect Coworker Morale, 76 Ohio State Law Journal 169-216 (2015).
• Leslie C. Griffin, Hobby Lobby: The Crafty Case that Threatens Women's Rights and Religious Freedom, [Abstract], 42 Hastings Constitutional Law Quarterly 641-693 (2015).
• Eric Rassbach, Is Hobby Lobby Really a Brave New World? Litigation Truths About Religious Exercise by For-Profit Organizations, [Abstract], 42 Hastings Constitutional Law Quarterly 625-639 (2015).
• Gerald Walpin, Five Justices Have Transformed the First Amendment's Freedom of Religion to Freedom from Religion, 31 Touro Law Review 187-220 (2015).
• Richard W. Garnett, John D. Inazu & Michael W. McConnell, How to Protect Endangered Religious Groups You Admire, Christianity Today, (Aug. 4, 2015).
• Dodd-Frank, the Financial Crisis, and a Christian View of Financial Markets. Articles by Paul J. Foley, Tory L. Lucas and student Joshua C. Dawson; abstract by Rodney Chrisman; note by Kaitlyn E. Evans. 9 Liberty University Law Review 445-595 (2015).

IRS Seeks Nominees For Tax Exempt Advisory Committee

The Internal Revenue Service has issued a Notice And Request For Applicants Or Nominations for vacancies on the Advisory Committee on Tax Exempt and Government Entities. (Federal Register, Aug. 10, 2015). Applications or nominations must be received by Sept. 4.

Recent Prisoner Free Exercise Cases

In Williams v. Trueblood, 2015 U.S. Dist. LEXIS 100636 (WD AR, July 31, 2015), an Arkansas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 30546, Feb. 9, 2015) and dismissed the complaint of an inmate whose faith was black magic Voodoo that when Christian preachers from the community periodically visited the jail, they would conduct worship services and play recordings of Christian music in the prisoner pod, and his complaint that the chaplain refused to put books about death on the book cart.

In Hulbert v. Robinson, 2015 U.S. Dist. LEXIS 100700 (WD VA, July 31, 2015), a Virginia federal magistrate judge recommended dismissing a Wiccan inmate's complaint that the prison's single-vendor policy and ban on direct in-kind donations denied him access to items he needed for Wiccan rituals.

In Evans v. Muniz, 2015 U.S. Dist. LEXIS 101207 (ND CA, July 31, 2015), a California federal district court allowed a Muslim inmate to move ahead with his complaint that he was not provided with Halal food for a period of 16 months.

In Abdullah v. Cruzen, 2015 U.S. Dist. LEXIS 101191 and in Alim v. Cruzen, 2015 U.S. Dist. LEXIS 101205 (ND CA, July 31, 2015), a California federal district court allowed a Muslim inmate to move ahead with his claim that correctional officers had created an "underground rule" prohibiting SQSP Muslim prisoners from congregating in groups of more than four for daily prayers, and retaliated against him for filing a complaint about it.

In Al-Azim v. Everett, 2015 U.S. Dist. LEXIS 101292 (ED VA, Aug. 3, 2015), a Virginia federal district court permitted various of the inmate plaintiffs to move ahead with complaints regarding refusal to provide a diet consistent with Nation of Islam teachings, refusing sufficient time of NOI prayer and classes and refusal to allow plaintiffs to purchase CDs of weekly sermons by Louis Farrakhan.

In Lilly v. Texas Department of Criminal Justice, 2015 Tex. App. LEXIS 8142 (TX App., Aug. 4, 2015), a Texas state appeals court in a 2-1 decision affirmed the dismissal on statute of limitations grounds of a suit by an inmate who is a member of the House of Yahweh who was refused kosher meals.

In Quinn v. Management & Training Corp., 2015 U.S. Dist. LEXIS 101924 (SD MS, Aug. 4, 2015) a Mississippi federal district court reinstated an inmate's complaint that officers would not allow him to claim Voodoo as his religion on prison paperwork.

In Larios v. United States Gov't & His Religion, 2015 U.S. Dist. LEXIS 103205 (ED NY, Aug. 5, 2015), a New York federal district court dismissed with leave to amend an inmate's complaint that  that his placement among the general prison population violated his rights under RFRA.

Oklahoma Supreme Court Denies Rehearing In 10 Commandments Case, With Lengthy Opinions

In an Order dated July 27, 2015, the Oklahoma Supreme Court by a 7-2 vote denied a rehearing in Prescott v. Oklahoma Capitol Preservation Commission, in which the court in June held that a Ten Commandments monument must be removed from the statehouse grounds. (See prior posting.)  The Order denying a rehearing was accompanied by 4 separate concurring opinions and one dissenting opinion (full text), which are much lengthier than the original opinion.

2nd Circuit Withdraws Earlier License Plate Opinion In Light of Supreme Court's Walker Decision

In May in Children First Foundation, Inc. v. Fiala (full text), the U.S. 2nd Circuit Court of Appeals upheld a decision by the New York Department of Motor Vehicles to refuse to issue custom license plates carrying the slogan "Choose Life."  In reaching its conclusion the court held that custom license plates constitute private speech. Subsequently the U.S. Supreme Court in the Walker case held that specialty license plates are government speech. (See prior posting.) Now in Children First Foundation, Inc. v. Fiala, (2d Cir., Aug. 5, 2015), the 2nd Circuit granted a petition for rehearing, withdrew portions of its earlier opinion, vacated the district court's opinion and remanded the case to the district court for further proceedings n light of the Walker decision. New York Law Journal reports on the court's latest action.

2nd Circuit Upholds ACA Contraceptive Mandate Accommodation For Religious Non-Profits

Yesterday the U.S. 2nd Circuit Court of Appeals joined six other Circuits in upholding the Obama Administration’s accommodation for religious non-profits that object to the requirement under the Affordable Care Act to furnish their employees health insurance that includes contraceptive coverage.  In Catholic Health Care System v. Burwell, (2d Cir., Aug. 7, 2015), the court rejected plaintiffs’ RFRA challenges, holding that it must apply an objective test in deciding whether a “substantial burden” has been place on plaintiffs’ religious exercise.  It is not enough that plaintiffs sincerely believe that a substantial burden has been imposed. It is up to the court to determine the magnitude of the burden.  The court said in part:

Plaintiffs ... argue that the objectively insubstantial burden of filing either the opt-out form or the letter to HHS is substantial because it renders them complicit in bringing about consequences forbidden by their religion, namely the provision of contraceptive coverage by the government and third parties. Although third parties ultimately bear the burden of providing contraceptive coverage, Plaintiffs contend that their participation is essential to this coverage…..

When third parties step in and provide contraceptive coverage after Plaintiffs opt out, they do so not because Plaintiffs have opted out, but rather because federal law requires or incentivizes them to provide such coverage. The accommodation functions not as a “trigger,” but rather as a means of identifying and exempting those employers with religious objections. Once Plaintiffs indicate their desire to have no involvement in the provision of contraceptive coverage, the government steps in and acts to ensure contraceptive coverage without any participation by Plaintiffs. Thus, Plaintiffs’ decision to opt out is not the cause of the ultimate 3 contraceptive coverage; rather this coverage happens in spite of them....

Plaintiffs may certainly object to this subsequent action by the government and third parties based on their sincere religious beliefs, and we reiterate that we do not doubt the sincerity or rationality of Plaintiffs’ beliefs. But just because Plaintiffs feel complicit in these third party actions does not mean that the regulations impose a “burden” on their religious practice, much less a burden that is “substantial” under RFRA. While a plaintiff’s “religious views may not accept [the] distinction between individual and governmental conduct,” the law does.

New York Times reports on the decision.

Do State RFRAs Apply To Eminent Domain Proceedings?

The Daily Signal this week reports on a lawsuit in Houston, Texas making innovative use of the state's Religious Freedom Restoration Act to challenge an eminent domain proceeding.  The Houston Housing Authority is seeking to take two empty parcels of land belonging to the Latter Day Deliverance Revival Center as part of an urban renewal project.  The church says it acquired the parcels as part of a future expansion plan for the church, and that it uses the land for ministry activities. The church filed suit arguing that the Housing Authority must meet the compelling interest/ least restrictive means tests of RFRA before it may take the property which the church refuses to sell. Applying RFRA standards would make its acquisition extremely difficult.

11th Circuit Upholds Alabama's Prison Grooming Rules Despite Supreme Court's Remand After Holt v. Hobbs Decision

After the U.S. Supreme Court earlier this year decided Holt v. Hobbs, concluding that RLUIPA invalidated the Arkansas prison system's grooming requirements as applied to a Muslim inmate seeking to grow a one-half inch beard, it remanded for further consideration an Alabama case in which Native American inmates challenged grooming requirements banning their long hair. (See prior posting.) Deciding the case on remand, in Knight v. Thompson, (11th Cir., Aug. 5, 2015), the U.S. 11th Circuit Court of Appeals held that despite Holt, the Alabama grooming requirements are valid. The 11th Circuit distinguished Holt:

While Holt sought to grow a ½-inch beard, such that the Department had to show how denying him a ½-inch beard actually furthered its compelling interests, the Plaintiffs here request a complete exemption of long, unshorn hair from the ADOC’s short-hair policy....

[T]he “detailed record developed” below distinguishes this case from Holt, where the lower courts gave “unquestioning deference” to prison officials’ conclusory and speculative assertions. As we stated in our previous opinion, the ADOC has “shown that Plaintiffs’ requested exemption poses actual security, discipline, hygiene, and safety risks” and neither we nor Plaintiffs can “point to a less restrictive alternative that accomplishes the ADOC’s compelling goals.”

The 11th Circuit reinstated its prior opinion in the case, with modifications in Section 3(b)(ii) of the opinion. (Full text of modified opinion.) AP reports on the decision.

Suit In Israeli Court Charges Administration of Temple Mount Violates Religious Discrimination Ban

Arutz Sheva and JNS reported yesterday on an interesting lawsuit filed this week in Israel in Jerusalem's District Court.  Jewish activist and attorney Baruch Ben-Yosef has sued the Palestinian Authority, Jordan and the Islamic Movement group in Israel, essentially claiming that they are violating Israel's equivalent of a public accommodation law by limiting Jewish access to the Temple Mount.

The suit alleges violation of an Israeli law enacted in 2000 that prohibits operators of public sites from barring admission on the basis of religion, race, nationality, gender or political affiliation. The suit charges defendants with discriminatory practices against Jews on the Temple Mount. Jewish access is limited to certain times, and Jewish prayer on the Mount is banned. The suit charges that inciting of violence on the Temple Mount is aimed at decreasing Jewish visitors.  The suit also challenges Jordan's claim of sovereignty over the Temple Mount in light of Israel's control over the site taken in the 1967 Six Day War. The Temple Mount is currently administered by the  Islamic Waqf that is controlled by Jordan.  However security is handled by Israeli police.

Kentucky County Clerk Files Third-Party Complaint Against Governor In Battle Over Same-Sex Marriage Licenses

As previously reported, in July the Kentucky ACLU filed a federal class-action lawsuit against Rowan County Clerk Kim Davis who is refusing to issue marriage licences to anyone because of her religious objections to issuing them to same-sex couples. On Tuesday, Davis responded by filing a third-party complaint in the suit against Kentucky Governor Steven Beshear as well as the state official responsible for marriage license forms.  Her third-party complaint (full text) in Miller v. Davis, (ED KY, filed 8/4/2015) alleges in part:

The Commonwealth of Kentucky, acting through Governor Beshear, has deprived Davis of her religious conscience rights guaranteed by the United States and Kentucky Constitutions and laws, by insisting that Davis issue marriage licenses to same-sex couples contrary to her conscience, based on her sincerely held religious beliefs. Because of Governor Beshear’s open declaration that Davis has no such rights, Governor Beshear has exposed Davis to the Plaintiffs’ underlying lawsuit, in which the Plaintiffs claim a constitutional right to a Kentucky marriage license issued specifically by Davis. Governor Beshear is not only liable to Davis for Plaintiffs’ claims, but is also obligated to effect Kentucky marriage licensing policies that uphold Davis’s rights of religious conscience.

Liberty Counsel issued a press release announcing the filing of the complaint. AP reports on the filing.

Suit Challenges Prof's Firing For Becoming Pregnant Out of Wedlock

A former Assistant Professor of Exercise Science at Northwest Christian University in Eugene, Oregon filed a discrimination suit this week after she was fired for becoming pregnant out of wedlock.  The complaint (full text) in Richardson v. Northwest Christian University, (OR Cir. Ct., filed 8/4/2015), contends that when plaintiff Coty Richardson became pregnant by her partner with whom she has had a 12 year relationship. the University gave her an ultimatum:

she had to either (1) proclaim the pregnancy a mistake and dissociate with the father of her child or (2) marry him immediately and provide proof of their union. Dr. Lindsay [Vice President for Academic Affairs] told Ms. Richardson that having a child out of wedlock while still continuing a relationship with the father was inconsistent with the University’s core values and mission and set a “bad example” for the students. When Ms. Richardson refused the University’s demands and requested privacy in her personal life, she was locked out of the University and her employment was terminated.

Among other things, the suit claims violations of Oregon's ban on employment discrimination on the basis of  pregnancy, gender and marital status. It also claims discrimination on the basis of religion, i.e. her belief that it is appropriate for her, as a Christian, to wait until she and her partner are financially, practically, and emotionally ready for marriage. Wall Street Journal reports on the lawsuit.

9 Federal Agencies Propose Rules On Grants To Faith-Based Organizations

Yesterday nine federal agencies issued Notices of Proposed Rulemaking (NPRMs) to implement many of the recommendations made in 2010 by President Obama's  Advisory Council for Faith-Based and Neighborhood Partnerships. (See prior posting.) In November 2010 President Obama signed Executive Order 13559 approving a number of the recommendations.  Yesterday's actions constitute the next step in assuring that agencies providing grants to faith-based organizations implement these recommendations.  As described by the White House in a blog post from the Office of Faith-based and Neighborhood Partnerships:

The proposed rules clarify the principle that organizations offering explicitly religious activities may not subsidize those activities with direct federal financial assistance and must separate such activities in time or location from programs supported with direct federal financial assistance.  For example, if a faith-based provider offers a Bible study as well as a federally supported job training program, the Bible study must be privately funded and separated in time or location from the job training program. 

The NPRMs also propose new protections for beneficiaries or prospective beneficiaries of social service programs that are supported by direct federal financial assistance.  In the proposed rules, the agencies set forth a notice to beneficiaries and prospective beneficiaries that informs them of these protections.  These notices would make it clear, for example, that beneficiaries may not be discriminated against on the basis of religion or religious belief or be required to participate in any religious activities and advises beneficiaries that they may request an alternative provider if they object to the religious character of their current provider.

At the same time, the NPRMs assure religious providers of their equal ability to compete for government funds and of continuing protections for their religious identity like the ability of providers to use religious terms in their organizational names and to include religious references in mission statements and in other organizational documents. ...

Links to the proposals from each agency can be found at the end of the White House blog post.  Both Americans United and the ADL issued statements welcoming yesterday's developments, but expressed concern that the proposed rules do not bar faith-based groups from hiring on the basis of religion in federally funded programs.