Suit Seeks Halal Meals In Florida Jails

Yesterday in Florida, the ACLU and CAIR filed a class action lawsuit seeking to require Miami-Dade County jails to serve Halal meals to Muslim inmates. (ACLU press release). The complaint (full text) in CAIR Florida, Inc. v. Miami-Dade County, (SD FL, filed 9/3/2015), contends that denying Halal meals to Muslim inmates while furnishing kosher meals to Jewish inmates violates RLUIPA, and the free exercise and equal protection clauses of the U.S. and Florida constitutions. Prior to October 2014, Muslim inmates could obtain the kosher diet; since then they are required to eat the from the general population menu. Miami Herald reports on the lawsuit.

Recalcitrant Kentucky County Clerk Jailed For Contempt; Deputies Will Issue Marriage Licenses

In Ashland, Kentucky today, federal district judge David Bunning ordered Rowan County Clerk Kim Davis to be remanded to the custody of U.S. Marshals after she told the court that her religious objections to same-sex marriage prevent her from complying with the court's preliminary injunction ordering her to end her office's refusal to issue marriage licences. (See prior posting.)  According to the ACLU, the court also granted its motion and clarified that the preliminary injunction requires Davis' office to issue marriage licenses to all eligible couples in Rowan County, and not just to the four couples named as plaintiffs in the case.  [UPDATE: Full text of order.] The Lexington Herald-Leader reports on what happened then:

After U.S. marshals took Davis into custody, where she is expected to remain until she agrees to comply with Bunning's order, the judge ordered her six deputy clerks to stand and tell him if they would comply with his order to issue marriage licenses, at the risk of facing their own contempt penalties.

All but one of the deputies — Nathan Davis, Kim Davis' son — said they would obey the judge, some more reluctantly than others..... Bunning said he would not hold the younger Davis in contempt since the rest of his colleagues are willing to obey the law.

So on Friday, the Rowan County clerk's office is set to open without its clerk, for the first time recognizing the Supreme Court's landmark gay marriage decision....

Later in the day, after Bunning established that five of Davis' deputy clerks were willing to issue marriage licenses, Davis' lawyers asked the judge to reconsider sending her to jail. If the people of Rowan County can get a marriage license from the clerk's office, even if it's over Davis' objections, then surely the judge's order is satisfied, the lawyers said.

But Davis scotched that effort by informing Bunning, from a courthouse holding cell, that she would not agree to let her deputies obey the judge's order if she is released. With a shrug, Bunning said Davis will remain incarcerated for at least a week, until he can review how her office operates in her absence. She was taken to the Carter County jail but can free herself by agreeing to comply with his order, Bunning said.

Davis' lawyers released a statement today, saying in part:

All [Davis] asks is to be true to God and her conscience. And the tragedy is that there are simple ways to accommodate her convictions. Just remove her name from the marriage licenses. That’s all she has asked from the beginning. Today’s events will escalate this debate to a new level. This is not the kind of America the Founders envisioned or that most Americans want.”

According to the Louisville Courier-Journal, there remains a question of whether licenses issued by deputy clerks are legally valid under Kentucky law if issued without Davis' consent. Judge Bunning said that couples would need to assess that risk on their own.

EEOC Complaint Alleges Failure To Accommodate Muslim Flight Attendant

According to Michigan Radio, a complaint was filed this week with the EEOC by  Charee Stanley, a Muslim flight attendant now on unpaid leave from ExpressJet.  When Stanley converted to Islam two years ago, she arranged for fellow flight attendants to serve alcohol on her behalf.  However last month another employee filed a complaint that this arrangement required the employee to perform extra work. This led to the airline placing Stanley on leave. The same person allegedly made comments to Stanley about her head covering and expressed anti-Muslim sentiments to her. Stanley seeks reasonable accommodation of her religious beliefs.

Case Again Examines NLRB Jurisdiction Over Religious Colleges

Last year in the Pacific Lutheran University case, the National Labor Relations Board developed a new test for when it will assert jurisdiction over a religiously-affiliated college. Even if the college holds itself out as providing a religious educational environment, the NLRB will assert jurisdiction unless the faculty members seeking to organize are themselves held out as performing a specific role in maintaining the college's religious character. (See prior posting.) Last March, applying that test, an NLRB Regional Director held that it had jurisdiction over a faculty union election at Seattle University. (See prior posting.) The University appealed to the full NLRB, and in June it ordered the Regional Director to reopen the record so the parties could introduce additional evidence relevant to the NLRB's new Pacific Lutheran test. (Docket).

In an August 17, 2015 opinion (full text), the Regional Director examined at length that additional evidence relating to how the faculty is held out and again concluded that the NLRB has jurisdiction over them.  Lexology analyzes that decision. On August 31, the University filed a 50-page request for review of the Regional Director's latest decision (full text), arguing not just that the Pacific Lutheran test was misapplied, but arguing also:

The new test under PLU  contravenes the United States Supreme Court’s holding in  National Labor Relations Board v. Catholic Bishop of Chicago ... which held that Congress did not intend to bring teachers at church-operated schools within the  jurisdiction of the Act. The PLU  test contains the same constitutional infirmities as existed in the Board’s former “substantial religious character” test, which caused the D.C. Circuit Court of Appeals to require a simple, “bright line” test to determine Board jurisdiction over religiously-affiliated colleges and universities..... 

Suit Charges Pet Store Chain With Discrimination Against Persians

Courthouse News Service reports on a discrimination lawsuit filed against Petco Animal Supplies Stores for refusing to sell goldfish to individuals of Persian descent who want to use the fish to celebrate Nowruz, the Persian New Year.  Nowruz  is a secular holiday with roots in Zoroastrianism.  It appears that Petco may have incorrectly believed that the fish would be killed as part of the celebration. The suit was filed in state court in Los Angeles on Aug. 28.

Kentucky County Clerk Continues To Refuse To Issue Marriage Licences; Contempt Motion Filed

As reported by the New York Times, Rowan County, Kentucky Clerk Kim Davis yesterday continued to refuse to allow her office to issue marriage licenses because of her religious objections to same-sex marriage, even though the U.S. Supreme Court refused to extend the stay of a district court's ruling against Davis. She told protesters that in refusing to issue licences, she was acting "under God's authority."  In a statement (full text) issued through her lawyers, Davis explained:

To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s word.

So, as announced by the ACLU, yesterday same-sex couples filed a motion (full text) asking the federal district court to hold Davis in contempt.  Plaintiffs also filed a second motion (full text) asking the district court to clarify that its original preliminary injunction requires Davis to issue marriage licenses not just to the named plaintiffs in the lawsuit, but to all individuals who are legally eligible to marry in Kentucky.  The district court has scheduled a contempt hearing for Thursday.

UPDATE: Here is Davis' formal court filing responding to the motion to hold her in contempt.

Pope's Upcoming Visit To U.S. Generates Church-State Concerns

With Pope Francis' visit to the United States now less than a month away (see prior posting), church-state questions are beginning to surface as they have with all recent Papal visits to the U.S.  Americans United announced Monday that it had sent a letter (full text) to officials in the cities the Pope will be visiting--Philadelphia, New York and Washington, D.C.-- as well as to federal officials expressing Establishment Clause concerns.  Citing reported extensive hosting plans by Philadelphia, the letter cautions:

government bodies must not provide any aid to a Pope’s religious activities that goes beyond the provision of services — such as police, safety, and security — that are regularly given for comparable public events of a similar size. 

Factional Disputes In Houses of Worship Are Increasingly Ending Up In Court

An article posted Monday by Reveal reports that increasingly factional disputes over control of mosques in the United States are ending up in civil courts.  The lengthy article discusses several such cases, saying in part:

Historically, the Muslim American community has kept its disputes private, sometimes turning to faith-based mediation. But as the number of mosques increases and Muslims integrate with mainstream America, conflicts involving clerics, congregations and mosques are seeping into secular courts from California to Texas and Florida.

Intergenerational friction offers significant fodder for legal actions. U.S. mosques are evolving from traditional institutions run by the eldest community members to democratized nonprofits with bylaws and elections, even women in positions of power. Oral traditions have become written.

However it is not just Muslims that are turning to civil courts.  Last Sunday in San Jose, California, over 5,000  members of a Sikh gurdwara cast ballots in a court-ordered election of officers.  The San Jose Mercury News reports that all 21 incumbents were re-elected, ending extensive litigation between a reformist faction and existing leaders who raised millions of dollars in the 1980's to build the gurdwara. Insurgents say that merely having an election was a victory.

5th Circuit Hears Oral Arguments In Prison Worship Case

On Monday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Brown v. Livingston. (Audio of full arguments.) In the case, a Texas federal district court held that requiring staff or volunteers for group religious services violates RLUIPA rights of Muslim inmates. (See prior posting.)

India's Supreme Court Suspends and Grants Review of State Court Decision Outlawing Santhara

BBC reports that yesterday India's Supreme Court agreed to review a decision of the Rajasthan High Court that held Santhara, a traditional Jain practice of starving oneself to death to attain salvation, is suicide under India's Penal Code. (See prior posting.) The Supreme Court suspended the Rajasthan court's judgment while the appeal is in process.

District Court Expands Contraceptive Coverage Exemption To Secular Pro-Life Employers and Employees With Religious Objections

In March for Life v. Burwell, (D DC, Aug. 31, 2015), the D.C. federal district court held that the Affordable Care Act contraceptive coverage mandate violates equal protection principles of the Fifth Amendment insofar as it grants an exemption to houses of worship and their integrated auxiliaries, but not to a secular anti-abortion organization such as March for Life.  It went on to hold that for employees of March for Life who hold religious objections to participating in an insurance plan that covers contraceptives, the Religious Freedom Restoration Act requires the government to allow third-party insurers to offer the employees insurance plans consistent with their religious beliefs. The court enjoined the government from enforcing the contraceptive coverage mandate against March for Life, its health insurance issuer and the insurance issuer of the employee plaintiffs in the case. New York Times reports on the decision.

Suit Challenges Fayetteville, Arkansas Anti-Discrimination Ordinance

In Fayetteville, Arkansas, a group known as Protect Fayetteville filed suit yesterday challenging the city's Uniform Civil Rights Protection Ordinance 5781 which voters are casting ballots on in a referendum this month.  The Ordinance expands civil rights protections to include bans on discrimination on the basis of sexual orientation and gender identity, and creates a city Civil Rights Commission.  The Ordinance contains an exemption for churches, religious schools and daycare facilities, and religious organizations. Opponents, however, complain that there is no exemption for individual clergy. The Ordinance was enacted after voters repealed an earlier anti-discrimination law last year.  (See prior posting.) According to KFSM News, the lawsuit claims that the Ordinance violates Arkansas' recently enacted Intrastate Commerce Improvement Act that bars counties, municipalities and other political subdivisions from expanding civil rights protections beyond those found in state law. The lawsuit also claims the Ordinance violates freedom of religion and speech.

European Court Upholds Italy's Ban On Donation of IVF Embryos For Scientific Research

In Parrillo v. Italy, (ECHR, Aug. 27, 2015), the European Court of Human Rights in a Grand Chamber judgment held 16-1 that Italy did not violate the European Convention on Human Rights when it banned donating for scientific research unimplanted embryos created in carrying out in vitro fertilization. The Court's accompanying press release summarizes the majority opinion:

For the first time, the Court was called upon to rule on the question whether the “right to respect for private life” could encompass the right to make use of embryos obtained from IVF for the purposes of donating them to scientific research. The “family life” aspect of Article 8 was not in issue here, since Ms Parrillo had chosen not to go ahead with a pregnancy with the embryos in question.

The Court, noting that the embryos obtained through IVF contained the genetic material of the person in question and accordingly represented a constituent part of his or her identity, concluded that Ms Parrillo’s ability to exercise a choice regarding the fate of her embryos concerned an intimate aspect of her personal life and accordingly related to her right to self-determination. The Court also took into account the importance attached by the domestic legal system to the freedom of choice of parents regarding the fate of embryos not destined for implantation. It therefore concluded that Article 8 was applicable in this case.....

The Court concluded that Italy had not overstepped the wide margin of appreciation enjoyed by it in this case and that the ban in question had been “necessary in a democratic society”. In consequence, there had been no violation of Article 8.

Six separate partly or fully concurring and dissenting opinions were also filed. As reported by the Times of Malta, a partly dissenting opinion of 5 judges said in part:

 Unlike the majority, we do not consider that embryos can be reduced to constituent parts of anyone else’s identity—biological or otherwise. Whilst sharing the genetic make-up of its biological ‘parents’, an embryo is, at the same time, a separate and distinct entity albeit at the very earliest stages of human development.

Supreme Court Refuses To Stay Order Requiring Kentucky Clerk To Issue Same-Sex Marriage Licenses

The U.S. Supreme Court yesterday in Davis v. Miller denied an application (full text of order) to stay pending appeal a district court decision requiring a Kentucky count clerk to issue marriage licenses to same-sex couples.  The clerk, Kim Davis, has religious objections to same-sex marriage. The application made to Justice Kagan was referred by her to the full Court which denied the stay. New York Times reports on the Supreme Court's decision.

9th Circuit Rejects Challenge To Big Mountain Jesus Statue

In Freedom From Religion Foundation v. Weber, (9th Cir., Aug. 31, 2015), the U.S. 9th Circuit Court of Appeals in a fragmented decision upheld the district court's rejection of a challenge to the Jesus statue on Montana's Big Mountain.  Judge Owens' opinion concluded that the Forest Service's renewal of the special use permit allowing the statue to remain on federal land did not violate the Establishment Clause.  The decision to renew reflected primarily a secular purpose and did not constitute an endorsement of religion.  Judge Owens said in part:

besides the statue’s likeness, there is nothing in the display or setting to suggest a religious message.... the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures....

Judge Smith, concurring, said in part:

Given the assumption made by both the majority and the dissent—that the Forest Service’s action (the renewal of a special use permit) constituted government action that could violate the Establishment Clause—I agree with the majority..... However, I write separately, because the assumption is incorrect. The Forest Service’s renewal of a special use permit for an existing monument does not constitute government speech.

Judge Pregerson dissenting said in part:

First, despite arguments to the contrary, a twelve-foot tall statue of Jesus situated on government-leased land cannot realistically be looked upon as “predominantly secular in nature.”... Second ... I submit that a “reasonable observer would perceive” the statue situated on government land “as projecting a message of religious endorsement.”

The Helena Independent Record reports on the decision.

US and Saudis Furnish Hajj Travel Information To Americans

The Hajj will take place this year approximately from Sept. 21 - 26. The U.S. State Department has posted a Hajj Fact Sheet on its website.  It reviews health, travel and safety considerations for U.S. citizens planning a trip to Saudi Arabia for the event. The Saudi Arabian embassy in Washington, D.C. has also posted a webpage titled Hajj Requirements, focusing on visas, travel and guidelines.

Recent Articles of Interest

From SSRN:

• Frederick Mark Gedicks, Public, Private, Religious? Religious Freedom Restoration Acts in the U.S. States, (Quaderni Costituzionali, No. 3 (Bologna: Il Mulino, 2015 Forthcoming).
• Alagi Yorro Jallow, Freedom of Expression and Human Rights in Islamic Perspective, (August 15, 2015).
• Colin A. Devine, A Critique of the Secular Exceptions Approach to Religious Exemptions, (UCLA Law Review, Vol. 62, No. 1348, 2015).
• Tom Hickey, Judges as God's Philosophers: Re-Thinking 'Principle' in Constitutional Adjudication, (in L. Cahillane, J. Gallen and T. Hickey (eds), Judges, Politics and the Irish Constitution (Manchester University Press, 2016).
• Asifa Quraishi-Landes, The Sharia Problem with Sharia Legislation, (Ohio North University Law Review, Vol. 41, No. 545, 2015).
• Leonore Carpenter & David S. Cohen, A Union Unlike Any Other: Obergefell and the Doctrine of Marital Superiority, (August 28, 2015).
• Dorit Rubinstein Reiss, Vaccines, School Mandates, and California's Right to Education, (August 21, 2015).
• Jack B. Harrison, At Long Last Marriage, (American University Journal of Gender, Social Policy & the Law, Vol. 24, No. 1, 2015).

From SmartCILP:

• Christopher Ogolla, Public Health Implication of Religious Exemptions: A Balance Between Public Safety and Personal Choice, or Religion Gone Too Far?, 25 Health Matrix 257-307 (2015).

Recent Prisoner Free Exercise Cases

In Aziz v. Cruzen, 2015 U.S. Dist. LEXIS 111862 (ND CA, Aug. 21, 2015), a California federal district court permitted inmates to move ahead with their complaint that correctional officers would not allow Muslim inmates to pray in groups larger than four, despite a contrary ruling by the Religious Review Committee.

In Sioleski v. Sullivan, 2015 U.S. Dist. LEXIS 111827 (WD NY, Aug. 24, 2015), a New York federal district court denied an inmate's motion for reconsideration of his previously dismissed complaint that on one occasion officials harassed him about his Native American hairstyle and placed him in keeplock for an hour while they decided whether his hairstyle complied with Department of Corrections rules.

In Peters v. Clarke, 2015 U.S. Dist. LEXIS 113380, Charles v. Clarke, 2015 U.S. Dist. LEXIS 113378, Cascen v. Clarke, 2015 U.S. Dist. LEXIS 113379, and Blyden v. Clarke, 2015 U.S. Dist. LEXIS 113377, (WD VA, Aug. 26, 2015), a Virginia federal district court dismissed complaints by Rastafarian inmates who were housed in the Violators Housing Unit for violating grooming regulations that they was not allowed to participate in Rastafarian group religious services outside the VHU pod.  In Blyden the court dismissed the additional complaint that while Rastafarian services are now available in the VHU, they lack a spiritual leader or reading material.

In Salyers v. Blue, 2015 U.S. Dist. LEXIS 114243 (WD KY, Aug. 27, 2015), a Kentucky federal district court dismissed an Orthodox Christian inmate's complaint that while in isolation for protective custody, he was not allowed to participate in group religious functions with other inmates.

In Greybuffalo v. Wall, 2015 U.S. Dist. LEXIS 114381 (WD WI, Aug. 28, 2015), a Wisconsin federal district court dismissed without prejudice for failure to exhaust administrative remedies a Native American inmate's request to have religious feasts at the conclusion religious ceremonies.

In Bargo v. Kelley, 2015 U.S. Dist. LEXIS 114610 (ED AR, Aug. 28, 2015), an Arkansas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 114614, Aug. 5, 2015) and permitted an inmate who is a practitioner of the Hindu Kriya/Raja Yoga to move ahead with his claim for injunctive relief. He is seeking use of the barracks day room and chapel, and a Yoga mat, to practice Yoga.

Court Rejects Second Amended Complaint In RLUIPA Land Use Case

In Salman v. City of Phoenix, (D AZ, Aug. 27, 2015), an Arizona federal district court denied plaintiffs' motion for leave to file a Second Amended Complaint after dismissing plaintiffs' RLUIPA and state Free Exercise of Religion Act claims. At issue is the city's application of its building code to plaintiffs' use of their home for weekly Bible studies for 35 people. (See prior posting.) The court however gave plaintiffs two weeks to file another amended complaint curing prior pleading defects.

Tax Court Upholds Penalties Against Promoters of Evasionary "Corporation Sole" Tax Scheme

In Gardner v. Commissioner of Internal Revenue, (USTC, Aug. 26, 2015), the U.S. Tax Court upheld $47,000 in penalties assessed by the Internal Revenue Service against a husband and wife who marketed to more than 300 people a tax evasion scheme involving the creation of a purported religious entity -- a "corporation sole."  Defendants claimed that taxpayers could turn otherwise taxable income into tax free income by assigning it to the corporation sole they create and control. BNA Daily Report for Executives [subscription required] reports on the decision.