Recent Articles of Interest

From SSRN:

• Antony Barone Kolenc, Not 'For God and Country': Atheist Military Chaplains and the Free Exercise Clause, (48 U.S.F. L. Rev. 395 (2014)).
• James M. Oleske, Doric Columns Are Not Falling: Wedding Cakes, the Ministerial Exception, and the Public-Private Distinction, (Maryland Law Review, Vol. 75, 2015, Forthcoming).
• Erwin Chemerinsky & Michele Goodwin, Religion Is Not a Basis for Harming Others, (Georgetown Law Journal, 2015/16, Forthcoming).
• Chad G. Marzen & William Woodyard, Catholic Social Teaching, the Right to Immigrate, and the Right to Regulate Borders: A Proposed Solution for Comprehensive Immigration Reform Based Upon Catholic Social Principles, (September 3, 2015).
• Steven J. Heyman, A Struggle for Recognition: the Controversy Over Religious Liberty, Civil Rights, and Same-Sex Marriage, (First Amendment Law Review, Forthcoming).
• Robert A. Kahn, Rethinking the Context of Hate Speech (Book Review: Michael Herz & Peter Molnar, The Content and Context of Hate Speech: Regulation and Responses), (First Amendment Law Review, Forthcoming).
• Isam M. Shihada,The Backlash of 9/11 on Muslims in Mohsin Hamid's The Reluctant Fundamentalist, (International Journal of Humanities and Cultural Studies, Vol. 2, Issue 2 (2015)).
• Angela Riley & Kristen A. Carpenter, Owning Red: A Theory of Indian (Cultural) Appropriation, (Forthcoming Texas Law Review (2016)).

From SSRN (Non-U.S. law):

• Paul Andrew Gwaza & Yusuph Moses Garba, Promoting Ethnic and Religious Harmony in Nigeria through Fidelity to Human Rights Principles, (August 30, 2015).
• Bernard M. Levinson, 'Better that You Should Not Vow than that You Vow and Not Fulfill': Qoheleth's Use of Textual Allusion and the Transformation of Deuteronomy's Law of Vows, (in Reading Ecclesiastes Intertextually. Edited by Katharine Dell and Will Kynes. Library of Hebrew Bible/Old Testament Studies 587. London: T&T Clark, Pages 28–41, 2014).
• Patrick McKinley Brennan, An Essay on Christian Constitutionalism: Building in the Divine Style, for the Common Good(s), (Rutgers Journal of Law and Religion, Forthcoming).
• Aleksandra Lis & and Tomasz Pietrzykowski, Animals as Objects of Ritual Slaughter: Polish Law after the Battle Over Exceptionless Mandatory Stunning,(August 29, 2015).
• Peter Oliver, Companies and Their Fundamental Rights: A Comparative Perspective, (64 International and Comparative Law Quarterly, pp 661-696, 2015).

From SmartCILP:

• Symposium: From the Magna Carta to the Montgomery March: The Career of Rights in the Anglo-American Legal Tradition. Articles by Winston P. Nagan, Bradley W. Miller, James R. Stoner, Jr., Adam J. MacLeod, Dwight G. Duncan, David VanDrunen and Michael J. DeBoer. 6 Faulkner Law Review 1-196 (2014).
• Symposium: Pursuit of Happiness in Interreligious Perspective. Articles by His Holiness the 14th Dalai Lama, Matthieu Ricard, Ch-Rab Jonathan Sacks, Michael J. Broyde, The Most Rev. Katharine Jefferts Schori, Luke Timothy Johnson, Seyyed Hossein Nasr and Khaled Abou El Fadl; response by Vincent J. Cornell. 29 Journal of Law & Religion 5-123 (2014).

Recent Prisoner Free Exercise Cases

In Brinkman v. Linderman, (9th Cir., Sept. 3, 2015), the 9th Circuit affirmed an Arizona district court's dismissal of complaints by an inmate that he was denied a private worship area and ceremonial foods and was not allowed to use an open flame during certain religious ceremonies.

In Atkins v. Maryland Division of Correction, 2015 U.S. Dist. LEXIS 114932, (D MD, Aug. 24, 2015), a Maryland federal district court permitted an inmate to proceed with his RLUIPA claim for declaratory relief and his free exercise claim against the chaplain for denying him kosher meals for 29 months.

In Twigg v. PrimeCare Medical, Inc., 2015 U.S. Dist. LEXIS 115169 (MD PA, Aug. 31, 2015), a Pennsylvania federal district court dismissed an inmate's claim that inadequate medical treatment violated not just his 8th Amendment rights, but also his free exercise rights when gastrointestinal pain made it impossible for him to attend religious services.

In Clay v. Livingston, 2015 U.S. Dist. LEXIS 115702 (ND CA, Aug. 31, 2015), a California federal magistrate judge dismissed a complaint by a Muslim inmate who wanted lunch each day in addition to the Ramadan menu.  For the first 9 days he was not provided lunch.

In Frazier v. June, 2015 U.S. Dist. LEXIS 116699 (D SC, Sept. 2, 2015), a South Carolina federal district court permitted an inmate to move ahead with his claim that his free exercise rights were infringed when his Bible was confiscated because of a limit on the number of books an inmate may have in his cell.

In Moon v. Samuels, 2015 U.S. Dist. LEXIS 117092 (SD IL, Sept. 2, 2015), an Illinois federal district court permitted a Muslim inmate to move ahead with his complaint that prison officials prohibited Muslim prisoners from engaging in group prayer, while permitting inmates of other faiths to do so.

In Moon v. Walton, 2015 U.S. Dist. LEXIS 117660 (SD IL, Sept. 3, 2015), an Illinois federal district court allowed a Muslim inmate to move ahead with his complaint that prison policy barred Muslim inmates from rolling up or cuffing the legs of their pants as called for by Muslim doctrine.

NY Education Commissioner Grants Religious Exemption From MMR Vaccination Requirement

In Appeal of N.C., (NYSED, Aug. 3, 2015), the New York Commissioner of Education granted a religious exemption from the public school immunization requirement to the son of a woman who had developed religious objections after her son had all of his immunizations except his second dose of the MMR vaccine.  The mother is an immigrant and a member of the Russian Orthodox Church. Her religious objections were formed after a conversation with a friend and research "on a few Bible and Christian blogs."  The Commissioner described petitioner's objections as follows:

Petitioner states that “our fate is in the hands of our Lord, even if He decides that we should have a flu or measles.”  She further states that “mortality is, and should be, in God’s hands” and thus “vaccination intercedes upon God’s rightful realm, as if being in God’s care alone is not assurance enough for us.”  In addition, petitioner states that she objects to vaccinations because they “contain cells of animal origin” which is counter to religious teachings that “blood [is] sacred” and should not be mixed “with foreign blood or any other impure matters.”  Petitioner further states that the “final straw” is that “a number of vaccines contain cells from aborted fetuses” and “abortion is clearly considered a mortal sin and is [an] abhorrent act to any Christian.”

Specifically petitioner alleged that "the MMR vaccine, the only vaccine at issue in this case, does contain human diploid cells that use aborted fetal cell lines."

The Commissioner held:

Based on the record before me, I conclude that the weight of the evidence supports petitioner's contentions that her opposition to the MMR vaccine stems from sincerely held religious beliefs.

New York Post last week reported on the decision.

7th Circuit Again Upholds Contraceptive Mandate Accommodation For Religious Non-Profits

In Grace Schools v. Burwell, (7th Cir., Sept. 4, 2015), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, rejected a RFRA challenge to the Obama administration's accommodation under the Affordable Care Act for religious non-profits that object to furnishing contraceptive coverage under their health insurance policies. The majority, relying to a large extent on the Circuit's recent decisions in Notre Dame and in Wheaton College, held that the accommodation does not impose a substantial burden on the free exercise rights of various Indiana-based Catholic non-profit charitable, educational and health care institutions.  The majority said in part:

The accommodation does not serve as a trigger or a conduit for the provision of contraceptive services.... It is the operation of federal law, not any actions that the plaintiffs must take, that causes the provisions of services that the plaintiffs find morally objectionable. The accommodation has the legal effect of removing from objectors any connection to the provision of contraceptive services. As we noted above, every other circuit court to consider the issue of whether the mandate imposes a substantial burden on religious exercise has come to the same conclusion.

However the majority maintained the district court's injunction in the case for 60 days to give the district court time to consider certain other arguments raised by plaintiffs.

Judge Manion dissented, saying in part:

The HHS accommodation is the long and winding extension cord the government uses to power its contraceptive mandate. It winds through regulations and additions and revisions. The court, through a perfunctory examination, interprets the accommodation’s twisted framework and holds that it frees the religious nonprofits from having to power the mandate themselves and, thus, does not violate the RFRA. The court is wrong: A thorough examination reveals that the accommodation’s tangled mess is hiding the fact that the extension cord gets its power from the nonprofits’ health plans and must be plugged in before it will work. It also exposes the fact that the government is forcing the nonprofits to plug in the accommodation themselves by signing the self‐certification or providing the alternative notice.

Tennessee Judge Says Obergefell Ended State Jurisdiction Over Contested Divorces

A Tennessee Chancery Court Judge, in what can only be described as a fit of judicial pique, last week used a divorce case in which he had substantial doubt about the parties' credibility to launch a verbal attack on the U.S. Supreme Court's same-sex marriage decision and develop a rather far-fetched theory of the decision's impact.  In Bumgardner v. Bumgardner, (TN Chan., Aug. 31, 2015), the court said in part:

With the U.S. Supreme Court having defined what must be recognized as a marriage, it would appear that Tennessee' s judiciary must now await the decision of the U. S. Supreme Court as to what is not a marriage, or better stated, when a marriage is no longer a marriage. The majority' s opinion in Obergefell, regardless of its patronizing and condescending verbiage, is now the law of the land....

Thus, it appears there may now be, at minimum ... concurrent jurisdiction between the state and federal courts with regard to marriage/divorce litigation. Perhaps even more troubling, however, is that there may also now be a new or enhanced field of jurisprudence— federal preemption by " judicial fiat." ...

[R]egardless of the states' traditional regulation of the area of marriage and divorce..., what actually appears to be the intent and ( more importantly) the effect of the Supreme Court ruling is to preempt state courts from addressing marriage/ divorce litigation altogether. ...

The conclusion reached by this Court is that Tennesseans, corporately, have been deemed by the U.S. Supreme Court to be incompetent to define and address such keystone/ central institutions such as marriage and, thereby, at minimum, contested divorces. Consequently, since only our federal courts are wise enough to address the issues of marriage— and therefore contested divorces— it only follows that this Court' s jurisdiction has been preempted. ...

Although this Court has some vague familiarity with the governmental theories of democracy, republicanism, socialism, communism, fascism, theocracy, and even despotism, implementation of this apparently new "super -federal -judicial" form of benign and benevolent government, termed " krytocracy" by some and " judi-idiocracy" by others, with its iron fist and limp wrist, represents quite a challenge for a state level trial court. In any event, it should be noted that the victory of personal rights and liberty over the intrusion of state government provided by the majority opinion in Obergefell is held by this Court only to have divested subject matter jurisdiction from this Court when a divorce is contested.

Huffington Post reports on the decision.

10th Circuit Denies En Banc Review, Over 5 Dissents, In Contraceptive Mandate Case

As previously reported, in July, without seeking en banc review, a petition for certiorari was filed with the U.S. Supreme Court for review of the 10th Circuit's panel decision upholding application of the Obama Administration's Affordable Care Act accommodation for religious non-profits to Little Sisters of the Poor. Nevertheless, 10th Circuit judges sua sponte called for a vote on whether the panel decision should be reviewed en banc. In Little Sisters of the Poor Home for the Aged v. Burwell, (10th Cir., Sept. 3, 2015), a majority of the judges voted to deny a rehearing, but 5 judges filed a dissent to the denial. Judge Hartz's dissent, joined by Judges Kelly, Tymkovich, Gorsuch and Holmes, calls the 3-judge panel's decision "clearly and gravely wrong." The dissenters say in part:

the panel majority may be saying that it is the court’s prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a “derivative” religious belief that executing the documents is sinful. This is a dangerous approach to religious liberty.

Christian Post reports on the court's decision.

Oregon Judge Creates Legal Defense Fund After Refusal To Perform Same-Sex Marriages

In Marion County, Oregon, Circuit Judge Vance Day, former chairman of the state Republican Party, has apparently decided for religious reasons not to perform same-sex marriage ceremonies.  This has led to inquiries by the Oregon Commission on Judicial Fitness and Disability as to whether Day has violated the Oregon Code of Judicial Conduct or the Oregon Constitution.  The Oregonian reports that yesterday the Oregon Government Ethics Commission voted unanimously to approve Day's request to establish a legal defense fund in connection with these inquiries.

No Damage Remedy Available To Muslims Placed On No-Fly List For Retaliatory Reasons

In Tanvir v. Lynch, (SD NY, Sept. 3, 2015), Muslim plaintiffs sued claiming that when they refused to become FBI informants, partly because doing so would violate their religious beliefs, the government retaliated by placing them on the No-Fly List.  Subsequently they were removed from the list, but continued to pursue claims for damages.  The court held that it will not extend a Bivens  damage remedy to this new context, and that RFRA does not provide for money damages against federal officers in their personal capacities. The Center for Constitutional Rights issued a press release reacting to the decision.

Constable Applicant Can Sue Over Religious and Ideological Questions In Job Interview

In Texas, County Constable is an elected position, but where a sitting Constable resigns more than a year before the next scheduled election county commissioners may appoint a new constable to serve until the next election.  In Lloyd v. Birkman, (WD TX, Sept. 2, 2015), a Texas federal district court in a 106-page opinion held that one of the unsuccessful candidates for appointment as County Constable in Williamson County, Texas could pursue various claims against the county and individual commissioners because of the questions asked during the interview process for the position. According to the court:

During the interviews, the candidates received questions on their positions on abortion and same-sex marriage, their political affiliations, the churches that they attended, and their political ideology.

While dismissing some of plaintiff's claims, the court permitted plaintiff to move ahead with his claim that the County committed an unlawful employment practice under Title VII and Texas Commission on Human Rights Act by refusing to hire him because of his religious association, moral views, and ethical beliefs. The court held that the "elected official" exemption does not apply. The court also permitted plaintiff to move ahead against the county and individual defendants on his First Amendment retaliation, freedom of expression and association claims; his 14th Amendment Equal Protection claims; and Texas Constitutional claims. The court rejected plaintiff's violation of privacy claims.

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.