DOJ Sues Michigan Township Over Denial of Zoning Approval for Muslim School

The U.S. Department of Justice announced yesterday that it has filed a civil suit under RLUIPA against a township just south of Ann Arbor, Michigan challenging the refusal to rezone a vacant parcel of land to allow construction of a Muslim pre-K through 12 school. The complaint (full text) in United States v. Pittsfield Charter Township, (ED MI, filed 10/26/2015), contends that various findings by the township Planning Commission were unjustified and that the rezoning denial makes it impossible for Michigan Islamic Academy to carry out its religious mission. Detroit News reports on the lawsuit.

Dutch Appeals Court Denies Scientology Tax Exempt Status

In the Netherlands last Wednesday, a Dutch appellate court held that the Church of Scientology has not carried the burden of showing that it qualifies as a tax exempt public benefit organization.  The full text in Dutch of the Oct. 21 decision by the Court of the Hague is available online. As explained by The Underground Bunker, under Dutch law, an organization must show that 50% of its activities have a public benefit in order to obtain tax exempt status. The Dutch Supreme Court had remanded Scientology's case to the appellate court to determine if this criterion was met.  The appeals court concluded that over half of Scientology's activity in Amsterdam involved auditing and training courses offered at high prices. This suggests that private commercial interests were being served more than the public interest.

Trump Questions Carson's Religious Beliefs

On the Republican presidential campaign trail last week, Donald Trump raised questions about the Seventh Day Adventist beliefs of fellow candidate Ben Carson. According to the New York Post Trump told a Florida audience on Saturday:

I’m Presbyterian. Boy, that’s down the middle of the road folks, in all fairness. I mean, Seventh-day Adventist, I don’t know about. I just don’t know about.

Subsequently Trump refused to apologize for his remarks.

Amish Man Sues Challenging Photo ID Requirement To Buy Firearms

Under 18 USC 922(t)(1)(c) (part of the Brady Bill), in order to purchase a firearm an individual must present the seller with a valid identification document that includes the purchaser's photo. According to Penn Live, last Friday an Amish man filed suit in a Pennsylvania federal district court challenging the application of the photo requirement to those who have a religious objection to being photographed. Plaintiff Andrew Hertzler contends that his rights under the Second Amendment and the Religious Freedom Restoration Act were violated when the Bureau of Alcohol, Tobacco and Firearms refused to accommodate his Amish religious beliefs by accepting his state-issued non-photo ID along with other documentation.

Recent Articles and Books of Interest

From SSRN:

• Jean L. Cohen, Freedom of Religion, Inc.: Whose Sovereignty?, (October 19, 2015).
• Jean L. Cohen, Pluralism, Group Rights, and Corporate Religion: Reply to Critics, (Netherlands Journal of Legal Philosophy 2015 (44) 3).
• Carlos A. Ball, Sexuality, Third-Party Harms, and the 'Live-and-Let-Live' Approach to Religious Exemptions, (Law, Culture, and the Humanities, Forthcoming).
• Jessica M. Silbey, Picturing Moral Arguments in a Fraught Legal Arena: Fetuses, Photographic Phantoms and Ultrasounds, (Georgetown Journal of Gender and the Law, Vol. 16, No. 3, 2015).
• Serena Mayeri, Marital Supremacy and the Constitution of the Nonmarital Family, (California Law Review, Vol. 103, p. 1277, 2015).

From SSRN (Non-U.S. Law)

• Melissa Crouch, Negotiating Legal Pluralism in Court: Fatwa and the Crime of Blasphemy in Indonesia, (Gary Bell and Michael Dowdle (eds) Festschrift in Honour of MB Hooker. Singapore: ISEAS, Forthcoming).
• Virgemarie A. Salazar, The Caliphate in the Era of Nation-States, (October 7, 2014).
• Andrew F. March, Islamic Philosophy (Falsafa) and Law, (The Oxford Handbook of Islamic Law, eds., Anver M. Emon and Rumee Ahmed (Forthcoming)).
• Tim Cunningham, Monitoring Equality - Reflexive Regulation, Planning Systems, and the Role of Equality Law: Lessons from Northern Ireland, (The Equal Rights Review, Vol. Fourteen, (2015)).
• Ifran Hossain Mollah, Hindu Women's Right to Property at the Crossroads: The Tension between Human Rights and Cultural Relativism, (Journal of Society and Change Volume VIII, No. IV, 1915).
• Mauro Gatti, Blasphemy in European Law, ( In M. Díez Bosch and J. Sànchez Torrents (eds), On Blasphemy (Blanquerna, 2015), pp. 49-64).
• Catherine J. Iorns Magallanes, Maori Cultural Rights in Aotearoa New Zealand: Protecting the Cosmology that Protects the Environment, (21:2 Widener Law Review 273-327, 2015).

From SmartCILP:

• Eric Apar, The Perils of Doubt: Happiness, Epistemological Certainty, and Free Exercise Rights, 49 Valparaiso University Law Review 155-199 (2014).
• Angela C. Carmella, After Hobby Lobby: The "Religious For-Profit" and the Limits of the Autonomy Doctrine. 80 Missouri Law Review 381-449 (2015).
• Henry L. Chambers Jr., The Problems Inherent In Litigating Employer Free Exercise Rights, 86 University of Colorado Law Review 1141-1171 (2015).
• Donald H.J. Hermann, Defending the Public Good and Traditional Society: Non-Scriptural Religious Objections to Same-Sex Marriage, 49 Valparaiso University Law Review 1-37 (2014).
• Audra L. Savage, Turning the Other Cheek: The Persecution of the Christian Minority, 26 Florida Journal of International Law 373-397 (2014).

Recent Books:

• Stephen Monsma & Stanley Carlson-Thies, Free To Serve: Protecting the Religious Freedom of Faith Based Organizations, (Brazos Press, Oct. 2015).
• Jonathan Sacks, Not In God's Name: Confronting Religious Violence,  (Schocken, Oct. 2015), reviewed by Deseret News.

Replica of Removed Oklahoma 10 Commandments Given To Oklahoma Governor [Corrected]

AP reports that on Friday, 11 riders from a Texoma Cowboy Church in Wichita Falls, Texas delivered to Oklahoma governor Mary Fallin a replica of the Ten Commandments monument which a court ordered moved from the Oklahoma statehouse grounds. (See prior posting.)  Rev. John Riggs, leader of the church, told the governor:

We're riding for the law of God today. We fully believe that this country was founded upon the principles of God's word. It breaks our hearts to see where this country is headed and to see the removal of the law of God from our land, from our buildings.

Fallin said she will place the replica in her office. [Corrected--an earlier version of this posting incorrectly said the replica was delivered to the governor of Texas.]

Recent Prisoner Free Exercise Cases

In Barnes v. Furman, (2d Cir., Oct. 22, 2015), the 2nd Circuit upheld a prison's prior policy of limiting kosher meals to Jewish inmates (and denying them to Hebrew Israelites) and dismissed as moot a complaint regarding seizure of an inmate's religious head covering because he had now changed his religious designation to Protestant.  At the time, the head covering he wore (a Tsalot‐
Kob) was limited by prison rules to Rastafarians.

In King v. Barr, 2015 U.S. Dist. LEXIS 141454 (WD VA, Oct. 19, 2015), a Virginia federal district court held that a Muslim inmate failed to show that jail officials denied his classification to Phase III privileges because of his beard.

In Jones v. Blue Ridge Regional Jail Authority, 2015 U.S. Dist. LEXIS 142142 (WD VA, Oct. 20, 2015), a Virginia federal district court dismissed a Muslim inmate's complaint that authorities refused to provide vegan Ramadan meals.

In Burroughs v. Petrone, 2015 U.S. Dist. LEXIS 142732 ND NY, Oct. 15, 2015), a New York federal district court dismissed a Muslim inmate's vague complaints regarding removal from the religious service call-out sheet, confiscation of religious material, substitution of a Bible for the Qur'an and discarding of religious food.

Mikveh OK In Area Zoned For Places of Worship

In Matter of Winterton Properties, LLC v Town of Mamakating Zoning Board of Appeals, (NY App., OCT. 22, 2015), a New York state appellate court held that the term "neighborhood places of worship"  in a town's zoning law includes a mikveh (Jewish ritual bath).  The proposed mikveh is located in an area zoned for neighborhood places of worship, but the city claimed that the term only includes places of communal worship. The appeals court concluded: "The terms of the ordinance do not support this requirement, nor do we find it to be either established or supported by the dictionary definition..." [Thanks to Steven H, Sholk for the lead.]

Fire Department's Grooming Rules Upheld

In Mann v. City of Moss Point, 2015 U.S. Dist. LEXIS 144320 (SD MS, Oct. 23., 2015), a Mississippi federal district court dismissed the claim by a former fire captain that departmental grooming rules barring long hair such as dreadlocks violate his 1st Amendment free exercise rights.

7th Circuit Upholds Muslim Woman's Hostile Work Environment and Retaliation Claims

In Huri v. Office of the Chief Judge of the Circuit Court of Cook County, (7th Cir., Oct. 21, 2015), the U.S. 7th Circuit Court of Appeals, reversing the district court, held that a Muslim woman's hostile work environment and retaliation claims should not be dismissed.  Fozyia Huri, a Saudi native employed by a state court as a child care attendant, complained particularly about her treatment by her supervisor, Sylvia McCullum, who is a devout and vocal Christian.  When Huri filed internal complaints about her treatment, she was transferred to the court reporter's office where her supervisors continued to treat her badly in retaliation for her complaints. AP reports on the decision,

Jury Awards Fired Muslim Drivers $240,000 In Damages

According to the Peoria Star Journal , an Illinois federal district court jury this week awarded $240,000 in damages to two Muslim men who were fired by the Illinois-based Star Transport, Inc. when the men refused on religious grounds to deliver alcohol.  In March, a federal judge held that the company's failure to accommodate the drivers' religious practices violated Title VII.  The 2-day jury trial focused on the amount of damages.  However it is unclear whether the judgment is collectible since the company went out of business earlier this year. (See prior related posting.)

Court Denies Class Certification In Title VII Religious Accommodation Suit Against GM

In Robinson v. General Motors Company, (ND TX, Oct. 21, 2015), a Texas federal district court  refused to certify as a class action a Title VII suit seeking to require General Motors to allow unpaid days off for observance of holy days by employees whose religious beliefs prohibit them from working or receiving compensation (e.g., vacation pay) on their holidays.  The suit was brought by two employees, one a member of the Tyler Sabbath Fellowship and the other a member of a Messianic Jewish congregation. The court dismissed the suit, saying:

Here, the Court has no way to ascertain the class under Plaintiffs’ definition since the requested class includes any GM employee who might request unpaid religious leave in the future....  Such a class is not adequately defined or ascertainable.

However plaintiffs were given leave to file an amended complaint.  Reuters reports on the decision.

Donald Trump: Closing Certain Mosques To Fight ISIS Might Be OK

Republican presidential front-runner Donald Trump has created a new controversy in an Oct. 20 interview (video of full interview) on Fox Business Varney & Co. in which he suggested that he might favor closing of certain mosques as a method to fight ISIS.  As reported by Mediaite:

Host Stuart Varney asked about a series of anti-ISIS measures the British government has taken. “They’ve got a whole new series of proposals to deal with this, including withdrawal of passports from some of these people who’ve gone over just to fight–”

“Absolutely. Good, good,” Trump said.

“…and closing some mosques,” he continued. “Would you do the same thing in America?”

“I would do that,” Trump responded. “Absolutely, I think it’s great.”

“Can you do it?” pressed Varney. “Can you close a mosque? We do have religious freedom.”

“Well, I don’t know,” Trump admitted. “I mean, I haven’t heard about the closing of the mosque. It depends, if the mosque is, you know, loaded for bear, I don’t know. You’re going to have to certainly look at it.”

In Ireland, Non-Catholic Students Have Difficulty Locating A School

The Guardian reported yesterday on efforts in Ireland to obtain repeal of the provision in Section 7 of the Equal Status Act 2000 which allows state-funded schools operated by religious institutions to give preference to, or  in some cases limit admission to, members of the denomination sponsoring the school.  Some 90% of state-funded schools in Ireland are run by the Catholic Church. They give preference to students who have been baptized.  Many non-Catholics are finding it extremely difficult to locate a good school for their children.  The main secular schools are run by an organization known as Educate Together.  But its 74 schools do not have enough places for all their applicants. More than 16,000 people have signed a petition that will be presented to Parliament.  They argue that the Equal Status Act provision violates Article 44.2.3 of Ireland's Constitution which prohibits government discrimination on the basis of religion or belief.

Court Rejects Free Exercise Defense In Marijuana Case

MLive reports that Branden James Barnes, who claims to be a medicine man for the Oklevueha Native American Church (ONAC), pleaded guilty on Tuesday in a Michigan federal district court to charges of manufacturing more than 50 marijuana plants.  The plea came after the court rejected arguments by Barnes' attorney that his marijuana production is protected by the 1st Amendment and RFRA. It was contended that in the ONAC, ritual use of marijuana provides a spiritual experience and healing.  Barnes attorney had argued that the changing attitudes toward marijuana, and its legalization in some states, undercuts prior holdings that the state has a compelling interest in regulating the drug. According to the government, ONAC is a scam-- providing a membership card for $200 which it represents allows the holder to freely possess and use controlled substances. The court also rejected Barnes' attempt to file his own appeal separate from the pleadings filed by his attorney. He argued that his attorney had failed to educate herself about ONAC.

Madoff Bankruptcy Trustee Recovers Substantial Amounts For Fraud Victims

According to a filing in federal bankruptcy court in New York this week, many of the victims of the 2008 investment fraud carried out by Bernie Madoff will recover most or all of their losses. Among the victims were a number of Jewish philanthropic organizations. The Jewish Press reported yesterday that court-appointed bankruptcy trustee Irving Picard has recovered, or reached agreements to recover, some $10.9 billion on behalf of victims of the Ponzi scheme. If the court approves the latest distribution proposed by Picard, victims who invested up to $1.61 million with Madoff (1264 out of 2227 victims) will get all of their funds returned. Those who invested more will receive back 57% of their investment.  A number of the Jewish charitable foundations who were victimized each had well over $1.61 million invested. (See prior posting.) The Wall Street Journal reports that this latest payout has been delayed as litigation over how to calculate the losses of some investors has wound its way through the courts.

Canadian Court: Grandparents Have No Right To Force Religious Exposure On Grandchild Over Mother's Objections

In A.R. and B.R. v. M.W. and L.R., (BC Prov. Ct., Oct. 21, 2015), a British Columbia (Canada) Provincial Court rejected an application by paternal grandparents for unsupervised contact time with their 4-year old granddaughter.  The grandparents want to be part of the child's life even though their son (the child's father) has little contact with them or with the child.  The child's mother, however, objects to the grandparents' insistence on taking the child to Jehovah's Witness religious services.  The court rejected the grandparents' claim that their right under the Canadian Charter of Rights and Freedoms to free exercise of religion has been infringed, saying:

No one is questioning the applicants’ right to practice their religion. This dispute arises from the applicants’ refusal to accept that they have no say in the religious and spiritual upbringing of A.W. They are not guardians and they do not have any parental responsibilities.

The court limited the grandparents' visits to one hour per month in the mother's home, supervised by the mother.  CBC News reports on the decision.

National Evangelical Group Takes More Flexible Stance On Capital Punishment

The National Association of Evangelicals this week released a new Resolution on Capital Punishment (full text) adopted at its semi-annual meeting.  The Resolution recognizes that instead of the previous widespread support for capital punishment, now Evangelical Christians differ in their beliefs as to whether capital punishment should be a part of American law.  The Resolution offers arguments both for and against the death penalty, saying in part:

As evangelicals, we believe that moral revulsion or distaste for the death penalty is not a sufficient reason to oppose it. But leaders from various parts of the evangelical family have made a biblical and theological case either against the death penalty or against its continued use in a society where biblical standards of justice are difficult to reach. In Mosaic Law, standards of evidence were stringent, requiring a minimum of two eyewitnesses who were willing to stake their own lives on the truthfulness of their testimony and who would initiate the execution by “casting the first stone.” Circumstantial evidence was not permitted. The contemporary American system is unlikely to reach such standards of evidence, and given the utter seriousness of capital crimes, the alarming frequency of post-conviction exonerations leads to calls for radical reform....

Other evangelicals continue to support the death penalty in limited circumstances as a legitimate exercise of the state’s responsibility to administer justice, and as a deterrent to crime. They point to heinous crimes, such as mass murder, terrorism, and the abduction, rape and murder of a young child, in which the perpetrator is caught on camera or is seen by multiple witnesses, where the evidence is overwhelming and there are no issues of mental incompetency. In such cases, some evangelicals argue for swift prosecution, with necessary safeguards, and if appropriate application of the death penalty as the best way to render justice, deter future crimes and allow the victim’s family and community to heal.

In France, Marie Le Pen's Trial For Inciting Hatred Towards Muslims Begins

In Lyon, France, yesterday, the trial of Marine Le Pen, leader of the far right National Front Party began.  As reported by The Guardian and The Local, Le Pen is charged with "incitement to discrimination, violence or hatred towards a group of people on the basis of their religion" in a suit brought by four human rights groups. During the campaign in 2010 to take over leadership of the National Front Party from her father, Le Pen complained about Muslims praying in the streets in three French cities where there are shortages of mosques.  She said:

I’m sorry, but for those who really like to talk about the second world war, if we’re talking about occupation, we can also talk about this while we’re at it, because this is an occupation of territory. It’s an occupation of swaths of territory, of areas in which religious laws apply … for sure, there are no tanks, no soldiers, but it’s an occupation all the same and it weighs on people.

In court, the French State Prosecutor recommended that the judges find Le Pen's remarks protected by her freedom of expression.

Church Sues Seeking Use of Public Housing Community Rooms For Worship Services

Last week, a Christian church in Lansing, Michigan filed a federal lawsuit challenging the policy of the Lansing Housing Commission on use of community rooms in public housing developments. The Commission bars use of the rooms for religious worship services, while allowing them to be used by religious and non-religious groups for other activities.  The complaint (full text) in His Healing Hands Church v. Lansing Housing Commission, (WD MI, filed 10/14/2015), says that it will shortly be too cold in Michigan for the church to hold services outside as it is now doing.  The lawsuit contends that the city has violated the Establishment Clause as well as the  church's free speech, free exercise, and equal protection rights. An ADF press release announced the filing of the lawsuit.