3rd Circuit: Challenge To NYPD Muslim Surveillance Program May Move Forward

Yesterday the U.S. 3rd Circuit Court of Appeals in Hassan v. City of New York, (3d Cir., Oct. 13, 2015), reversed a New Jersey federal district court (see prior posting) and held that Muslim plaintiffs adequately stated free exercise and equal protection claims challenging the NYPD's Muslim surveillance program. Summarizing its holding, the court in an opinion by Judge Ambro said:

In its narrowest form, this appeal raises two questions: Do Plaintiffs—themselves allegedly subject to a discriminatory surveillance program—have standing to sue in federal court to vindicate their religious-liberty and equal protection rights? If so, ..., have they stated valid claims under the First and Fourteenth Amendments to our Constitution? Both of these questions, which we answer yes, seem straightforward enough. Lurking beneath the surface however, are questions about equality, religious liberty, the role of courts in safeguarding our Constitution, and the protection of our civil liberties and rights equally during wartime and in peace.

In concluding that plaintiffs have standing, the court said in part:

The City ... argues that Plaintiffs have suffered no injury-in-fact because it has not overtly condemned the Muslim religion.... This argument does not stand the test of time. Our Nation’s history teaches the uncomfortable lesson that those not on discrimination’s receiving end can all too easily gloss over the “badge of inferiority” inflicted by unequal treatment itself. Closing our eyes to the real and ascertainable harms of discrimination inevitably leads to morning-after regret.

Reflecting on history's lessons, the court said:

What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that “[l]oyalty is a matter of the heart and mind[,] not race, creed, or color...

Judge Roth filed a short concurring opinion on the issue of level of scrutiny that should be applied.  She said in part:

I differ from the majority in its failure to determine whether “intermediate scrutiny” or “strict scrutiny” applies here....

In my opinion, “intermediate scrutiny” is appropriate here. I say this because “intermediate scrutiny” is the level applied in gender discrimination cases. I have the immutable characteristic of being a woman. I am happy with this condition, but during my 80 years on this earth, it has caused me at times to suffer gender discrimination. My remedy now for any future gender discrimination would be reviewed with“intermediate scrutiny.” For that reason, I cannot endorse a level of scrutiny in other types of discrimination cases that would be stricter than the level which would apply to discrimination against me as a woman.

AP reports on the decision.

Court Upholds Military Reprimand To Enlistee For Objecting To Same-Sex Wedding

In Wilson v. James, (D DC, Oct. 13, 2015), the D.C. federal district court dismissed RFRA, 1st and 5th Amendment and various other challenges by an enlisted member of the Utah Air National Guard to letters of reprimand he received for his opposition to a same-sex wedding ceremony held at West Point's chapel.

After reading about the wedding ceremony, Layne Wilson, a Mormon, sent an e-mail using his military account to a major whom he believed to be the chaplain at the U.S. Military Academy, saying in part: "Our base chapels are a place of worship and this [is] a mockery to God and our military core values." His commander issued a letter of reprimand for this, which led to Wilson to rebuke his commander on Facebook, posting: "You embarrass me, our country, and our unit!!!...." That led to a second letter of reprimand and suspension of Wilson's security clearance. Wilson sued, bringing, in the court's words, "a bevy of claims." Rejecting Wilson's RFRA claim, the court said in part:

A substantial burden on one’s religious beliefs—as distinct from such a burden on one’s exercise of religious beliefs—does not violate RFRA....

Admittedly, the First LOR likely chilled Plaintiff’s speech regarding his religious beliefs, especially within the military setting. But nowhere does Plaintiff assert that LDS doctrine requires him to publicly voice his dissent about homosexuality or same-sex marriage.... Plaintiff only contends that, under LDS doctrine, homosexuality is a sin.... His religious belief, however, does not become a protected religious exercise under RFRA simply because Plaintiff expressed it through speech.

Rejecting Wilson's free speech claim, the court held:

An email from an enlisted member of the military that protests the decision of a senior military official outside the sender’s chain of command and urges that official to reverse his decision receives no First Amendment protection.

Judicial Ethics Complaint Cites Alabama Justice's Remarks On Same-Sex Marriage Precedent

The Southern Poverty Law Center yesterday filed an ethics complaint (full text) with the Judicial Inquiry Commission of Alabama alleging that Alabama Supreme Court Justice Tom Parker violated the state's Code of Judicial Ethics when, in a radio interview, he suggested that the Alabama Supreme Court defy the U.S. Supreme Court's Obergefell decision legalizing same-sex marriage. As summarized by an SPLC press release:

The complaint cites comments made by Parker during an Oct. 6 radio show, “Focal Point,” hosted by Bryan Fischer of the American Family Association. Fischer has used his radio show to promote outrageous, denigrating claims about LGBT people, Muslims, Native Americans and African Americans.

In the interview, Parker not only discussed a marriage equality case pending before the Alabama Supreme Court – Ex parte State v. King – he voiced his personal opinion about the case and suggested that Alabama should defy the U.S. Supreme Court decision legalizing same-sex marriage in order to lead to a “revival of what we need in this country.”

Thailand Bans Movie Critical of Buddhist Monks

Al Jazeera today reports that Thailand's culture ministry has banned Arbat, a new horror film about Buddhist monks. The title translates as "violations committed by monks."  Somchai Surachatri, spokesman for Thailand's National Office of Buddhism, said: "The movie has some scenes that will destroy Buddhism. If it is shown, people's faith in Buddhism will deteriorate," The film's producer says it will change some parts of the movie before resubmitting it for approval. Thailand's monks have come under increasing criticism in recent years for their embrace of commercialism.

European Court Says Christian Proselytizer's Rights Infringed By Broadcast Documentary

The European Court of Human Rights today in a Chamber Judgment in Bremner v. Turkey (ECHR, Oct. 13, 2015) (full text of decision in French) held that Dion Bremner, an Australian newspaper correspondent and Christian bookstore employee, had his rights violated by a Turkish television station which broadcast a documentary about his Christian proselytizing.  The producers of the broadcast alerted police and criminal charges of insulting God and Islam were brought against Bremner,  He was ultimately acquitted, Bremner then sued the television producer and presenter, and on appeal the European Court found he was entitled to damages.  As summarized by the European Court's press release on the decision, the Court:

held, unanimously, that there had been: a violation of Article 8 (right to respect for private life) of the European Convention on Human Rights. The case concerned the broadcasting of a television documentary in which the applicant, Mr, Bremner, who was shown promoting his evangelical Christian beliefs, was described as a “foreign pedlar of religion” engaged in covert activities in Turkey. The Court found in particular that the broadcasting of Mr Bremner’s image without blurring it could not be regarded as a contribution to any debate of general interest for society, regardless of the degree of public interest in the question of religious proselytising.

[Thanks to Paul de Mello for the lead.]

Obama Reflects On Christianity

The New York Review of Books (Nov. 5 issue) published a conversation between President Obama and prize-winning author Marilynne Robinson which included this exchange on religion:

The President: ... [O]ne of the points that you’ve made in one of your most recent essays is that there was a time in which at least reformed Christianity in Europe was very much “the other.” And part of our system of government was based on us rejecting an exclusive, inclusive—or an exclusive and tightly controlled sense of who is part of the community and who is not, in favor of a more expansive one.

Tell me a little bit about how your interest in Christianity converges with your concerns about democracy.

Robinson: Well, I believe that people are images of God. There’s no alternative that is theologically respectable to treating people in terms of that understanding.... 

The President: But you’ve struggled with the fact that here in the United States, sometimes Christian interpretation seems to posit an “us versus them,” and those are sometimes the loudest voices. But sometimes I think you also get frustrated with kind of the wishy-washy, more liberal versions where anything goes.

Robinson: Yes.

The President: How do you reconcile the idea of faith being really important to you and you caring a lot about taking faith seriously with the fact that, at least in our democracy and our civic discourse, it seems as if folks who take religion the most seriously sometimes are also those who are suspicious of those not like them?

Pregnancy Centers Sue To Enjoin California's New Mandatory Disclosure Law

Last Friday, California Governor Jerry Brown signed into law AB 775 , the Reproductive FACT Act which requires reproductive health clinics to disseminate a notice to all clients stating that California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women.  On Saturday, the Pacific Justice Institute (press release) on behalf of two religiously affiliated non-profit pregnancy counseling centers filed a lawsuit seeking to enjoin enforcement of the new law.  The complaint (full text) in A Woman's Friend Pregnancy Resource Center v. Harris, (ED CA, filed 10/10/2015) contends that the new law infringes plaintiffs' free speech and free exercise rights by mandating speech inconsistent with their religious convictions.  The Sacramento Bee reports on the lawsuit.

Charges Against Sikh Teen For Wearing Kirpan Dropped

Last week, a New York state trial court judge in Queens dropped criminal charges against a 17-year old Sikh high school student who had been arrested for wearing his kirpan (ceremonial dagger).  According to Sikh24, Virender Singh was arrested and charged with two counts of criminal possession of a weapon in the 4th degree while he was walking to a Gurdwara to offer evening prayers. However at his hearing, prosecutors conceded that charges should be dropped.

Proposed Montana Rules Will Exclude Religious Schools From Tax Credit Program

Last month, the Montana Department of Revenue issued proposed rules (full text) to implement the state's recently-enacted School Contributions Tax Credit law (full text) (background).  Under the law, a state income tax credit of up to $150 is available for contributions to student scholarship organizations that provide scholarships for students at a "qualified educational provider."  One of the proposed new rules would precluded religious schools from participation in the program.  Proposed Rule I provides:

(1) A "qualified education provider" has the meaning given in 15-30-3102, MCA, and pursuant to 15-30-3101, MCA, may not be:

(a) a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination; or

(b) an individual who is employed by a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination when providing those services.

(2) For the purposes of (1), "controlled in whole or in part by a church, religious sect, or denomination" includes accreditation by a faith-based organization

A hearing on the proposed rules will be held on Nov. 5. Written comments on the proposed rules may be submitted until Nov. 17.  Montana Watchdog raises constitutional questions about the exclusion of religiously sponsored educational institutions.

Marine Base Will Not Remove Sign Calling For God's Blessing

AP reported yesterday that the commander of the Marine corps base on Oahu, Hawaii has rejected a call by the Military Religious Freedom Foundation that the military move or take down a sign put up after 9-11 which reads: "God bless the military, their families and the civilians who work with them." MRFF head Mikey Weinstein says the group represents 72 marines on the base, and wants the sign removed or moved to the grounds of the base chapel.  Alternatively Weinstein proposes that other signs be put up alongside this one, reading, for example, "Goddess bless...."  MRFF says that the current sign violates the Establishment Clause.

Recent Articles of Interest

From SSRN:

• Anthony Michael Kreis, Marriage Demosprudence, (University of Illinois Law Review, Forthcoming).
• Jeff Berryman, Intersections of Canadian Common Law Doctrine and the New Multiculturalism, (March 1, 2014).
• Richard W. Garnett, The Freedom of the Church: (Toward) an Exposition, Translation, and Defense, (Micah Schwartzman, Chad Flands, and Zoe Robinson, eds., The Rise of Corporate Religious Liberty (Oxford University Press, 2015), Forthcoming).
• Ram Rivlin, Religious Norms between Ethics and Law: The Death and Afterlife of Jewish Divorce Law, (Oxford Journal of Law and Religion 2015, Forthcoming).
• Gila Stopler, Biopolitics and Reproductive Justice: Fertility Policies between Women's Rights and State and Community Interests, (18(2) University of Pennsylvania Journal of Law and Social Change, 169-207 (2015)).
• Greg Taylor, Austria's Law Against Defamation of Religion: A Case Study, (Journal of Law and Religion, Vol. 30, No. 1, 2015).
• Ruth Lapidoth, Jerusalem and the Peace Process, (October 7, 2015).
• Patrick Parkinson, Can Marriage Survive Secularization?, (University of Illinois Law Review, 2015, Forthcoming).
• Catherine Powell, Up from Marriage: Freedom, Solitude, and Individual Autonomy in the Shadow of Marriage Equality, (84 Fordham Law Review 69 (2015)).

From SmartCILP:

• David L. Faigman, Where Law and Science (and Religion?) Meet, 93 Texas Law Review 1659-1679 (2015).
• Mark Strasser, Old Wine, Old Bottles, and Not Very New Corks: On State RFRAs and Free Exercise Jurisprudence, 34 St. Louis University Public Law Review 335-366 (2015).
• Allan W. Vestal, The Lingering Bigotry of State Constitution Religious Tests, 15 University of Maryland Journal of Race, Religion, Gender & Class 55-120 (2015).
• John Witte, Jr., Why Two In One Flesh? The Western Case for Monogamy Over Polygamy, 64 Emory Law Journal 1675-1746 (2015).
• Symposium. Religious Accommodation in the Age of Civil Rights. Foreword by Martha Minow; articles by Mary Anne Case, Richard W. Garnett, Malick W. Ghachem, Michael A. Helfand, John D. Inazu, Andrew Koppelman, Melissa Murray, Steven D. Smith and Nomi Maya Stolzenberg. 88 Southern California Law Review 453-767 (2015).

Promissory Estoppel May Prevent Christian Camp From Firing Employee For Living With Her Boyfriend

Trehar v. Brightway Center, Inc.,, (OH App., Oct. 2, 2015), is a suit by a former employee of a Christian youth sports camp who was fired for moving in with with her boyfriend.  Plaintiff Jennifer Trehar whose job involved writing grant proposals and engaging in various sorts of promotional work was told in a letter from the camp's board: "We simply cannot reconcile our affections and appreciation for you with our belief that living together outside marriage is forbidden by the Scriptures."  In a unanimous decision the appeals court reversed the trial  court's grant of summary judgment to the camp, finding that Trehar sould be able to move ahead with her claim of promissory estoppel:

Griffin is Brightway’s president and CEO. He stated that his employees should rely on his statements and promises. In construing the evidence in Trehar’s favor, reasonable people could conclude that Trehar’s boss and the president of the company induced Trehar to believe that no adverse employment action would result from her move.

Columbus Dispatch reports on the decision.

Recent Prisoner Free Exercise Cases

In Christian Separatist Church Societyy of Ohio v. Ohio Department of Rehabilitation & Corrections, 2015 U.S. Dist. LEXIS 134125 (SD OH, Oct. 1, 2015), an Ohio federal magistrate judge recommended allowing various individual inmates to proceed with their complaint that by having only one recognized Protestant organization, prison officials have infringed their free exercise rights under the 1st Amendment and RLUIPA. Plaintiffs claim their separatist beliefs are theologically distinct and inimical to those of the recognized group. However the church itself lacks standing to bring a RLUIPA claim. Various other claims were also recommended for dismissal.

In Aragon v. Erlanger, 2015 U.S. Dist. LEXIS 134656 (D CO, Oct. 1, 2015), a Colorado federal district court adopted in part a magistrate's recommendation (2015 U.S. Dist. LEXIS 96185, July 23, 2015), a Colorado federal district court dismissed complaints by a Messianic Jewish inmate regarding the preparation of kosher food and date for observing Passover.

In Etterson v. Newcome, 2015 U.S. Dist. LEXIS 135670 (ED VA,Oct. 5, 2015). a Virginia federal district court allowed a former inmate to move ahead with his 1st Amendment damages claim for having been wrongly taken off the Ramadan menu.

In Ishmael v. Oregon Department of Corrections, 2015 U.S. Dist. LEXIS 136071 (D. OR, Oct. 6, 2015), an Oregon federal district court dismissed a suit by an African Hebrew Israelite of Jerusalem inmate who complained that he was not allowed to use his religious name on mail and correspondence.

In Holmes v. Godinez, 2015 U.S. Dist. LEXIS 137388 (ND IL, Oct. 8, 2015), an Illinois federal district court allowed inmates to move ahead with a class action complaining, among other things, that the free exercise and RLUIPA rights of hearing impaired inmates are infringed by inadequate accommodation at religious services.

In Barrett v. Peters, 2015 Ore. App. LEXIS 1203 (OR App., Oct. 7, 2015), an Oregon appellate court allowed an Oregon inmate incarcerated in Florida under the Interstate Corrections Compact to move ahead with his habeas corpus action complaining that he is not allowed to wear the "Celtic tonsure" hair style required by his Glefiosa religion in violation of the Oregon Constitution.

Al-Queda Executes 4 For Witchcraft In Yemen

Al Jazeera reports that in the town of Mayfaa in southeastern Yemen, Al-Queda today distributed and posted flyers saying that the group has killed four local men suspected of witchcraft and sorcery. The handout says in part:

We have implemented Allah's ruling against them, which is the death sentence,  We call upon all Muslims to cooperate with us against this widespread depravity,

Al-Queda controls this area in Yemen.

Federal Prisons Will No Longer Serve Pork Products

The Washington Post reported yesterday that federal Bureau of Prisons is removing all pork products from its national menu for federal inmates. Pork producers are distressed at the decision that was based on a survey of inmates' food preferences, as well as on cost factors.However Ibrahim Hooper, a spokesman for the Council on American-Islamic Relations, predicted that the decision "will stoke the fires of Islamophobia based on the usual conspiracy theories." [Thanks to David Orinoff for the lead.]

Anti-Muslim Rallies Planned In U.S. Cities This Weekend

TPM reports that anti-Muslim rallies may be held this weekend in 20 or more U.S. cities.  The rallies, organized through a Facebook page called "Global Rally for Humanity," were timed to coincide with the 20th anniversary of the Washington, D.C. Million Man March. According to TPM:

 "Global Rally for Humanity" appears to have ties to John Ritzheimer, who rose to prominence among anti-Muslim activists when he organized a protest and "Draw Mohammad" contest in May in Phoenix. Known for his bizarre antics, he recently attracted the attention of U.S. Capitol Police when he vowed in an open letter to arrest Sen. Debbie Stabenow (D-MI) over her support for the Iranian nuclear deal.

Detroit Free Press reports on the rally planned in the heavily Muslim city of Dearborn, Michigan. The Facebook page for the Dearborn rally says that the organizers are open gun carry advocates, and it urges individuals to bring firearms to the rally. The rally is planned near Dearborn city hall after organizers did not file soon enough to get a permit to demonstrate outside the Islamic Center of America, a large Dearborn mosque.

CAIR issued a statement this week reading in part: "Many of these planned rallies may not take place, or they may consist of only a handful of people shouting slurs at worshipers. But given the recent endorsement of Islamophobia by national public figures, it would only be prudent for mosque and community leaders to prepare for any eventuality." In a second statement later in the week, CAIR asked all presidential candidates to repudiate the hate rallies and urged them to visit a mosque the weekend to show moral support for the Muslim community.

Congress Reauthorizes USCIRF For 4 Years In Bill Requiring New Strategic Plan

Yesterday Congress sent to the President for his signature S. 2078, United States Commission on International Religious Freedom Reauthorization Act of 2015 (full text).  The bill extends the life of USCIRF until September 2019, funds it at $3.5 million for each year and creates a compromise arrangement on Commission reforms.  As reported by World News Service:

The bill is close to a clean reauthorization and does not include the reforms [Sen. Marco] Rubio sought in his bill. It also does not include the reforms Sen. Dick Durbin, D-Ill., wanted, elements of which the international religious freedom community said would act as “poison pills” to the commission.

Instead, the legislation gives the commission 60 days to craft a strategic plan and conduct an organizational review. A unanimous commission vote (or a majority of both party appointees) would enact any proposed changes – such as designating ISIS, Boko Haram, and other non-state actors as “countries of particular concern.”

[Thanks to Blog From the Capital for the lead.] 

Malaysia's Federal Court Rules On Procedural Grounds Against Transgender Challenge To State Law

As previously reported, last November a 3-judge appeals court panel in the Malaysian state of  Negeri Sembilan struck down a state law barring Muslim men from wearing women's clothing. The appeal was brought by three transgender women who, a lower court had ruled, were required to wear men's clothing because they were born as males. The state appealed the ruling to Malaysia's Federal Court which yesterday set aside on procedural grounds the appeals court's November ruling. According to Free Malaysia Today, a five-judge panel of the Federal Court ruled that the challenge to the statute should have been decided initially by the Federal Court, rather than being brought to it on appellate review.

Fitness Club Sued For Barring Long Skirts Worn For Religious Reasons

New York Jewish Week and The Jewish Voice report on a lawsuit filed in New York federal district court last week by an Orthodox Jewish woman charging the Lucille Roberts fitness chain with religious discrimination.  The women's-only chain of gyms barred 25-year old Yoserfa Jalal from wearing a fitted knee-length skirt while working out.  When Jalal, a teacher, insisted on wearing the skirt in compliance with Orthodox Jewish rules of modesty, the chain revoked her membership. Lucille Roberts says: "Our decision to uphold a dress policy, consistent with industry standards and equipment manufacturers, is not an attempt to hinder any personal religious beliefs."

Oregon Supreme Court Upholds Convictions of Faith Healing Parents For Criminal Negligence

In State of Oregon v. Hickman, (OR Sup. Ct., Oct. 8, 2015), the Oregon Supreme Court unanimously upheld the second degree manslaughter convictions of Dale and Shannon Hickman.  The Hickmans, members of the Followers of Christ Church, were charged with criminal negligence in the death of their prematurely-born seriously ill infant son. The parents had prayed for their son and anointed him with olive oil instead of seeking medical help for him when, nine hours after he was born, he developed severe respiratory problems.  In upholding the convictions, the Supreme Court said:

In this case, the only issue before us is whether ... the state was required by free exercise principles to prove that defendants acted or failed to act with a knowing, rather than criminally negligent, mental state. We hold that it was not.

Oregon Live reports on the decision.  [Thanks to Charles Hinkle for the lead.]

Court Says White Supremacist Movement May Qualify As A "Religion"

In Hale v. Federal Bureau of Prisons, (D CO, Sept. 30, 2015), a Colorado federal district court held that the White supremacist Creativity Movement may qualify as a "religion" for purposes of the First Amendment and RFRA.  In a lawsuit brought by inmate Reverend Matt Hale, who for ten years was the “Pontifex Maximus,” or “greatest priest” of the Church of the Creator, the court said in part:

Mr. Hale alleges that “Creativity addresses all the ultimate questions of life, including the meaning of life and its purpose,” which, for Creators, is to halt the mixing of races and devote themselves to the salvation and survival of the white race. Creativity “teaches its adherents to build their minds, to eat salubriously, to create a society conducive to their mental and physical well-being, and to preserve a pure and natural environment,” and thus imposes duties on its members. Mr. Hale alleges that Creators celebrate certain holidays, perform ceremonies, repeat daily affirmations, follow a prophet, and direct members to proselytize, all of which are done with the idea that these practices allow a follower to achieve salvation. True, the Complaint does not identify any metaphysical components of Creativity, and it characterizes Creativity as having a single secular goal – the “achievement of white racial immortality.” But, however bigoted as Creativity’s beliefs may appear, the Complaint states facts which, taken as true, suggest that Creativity addresses the purpose for life and means of salvation, imposes duties on its members, and denotes certain holidays and religious ceremonies to be celebrated or performed.

In the lawsuit, Hale complains of various administrative restrictions on his ability to practice his religion while in prison.  The court allowed him to move forward only on two claims-- mail bans and refusals to provide a religious diet.

New York Subways Must Run Satiric Ads For Film Portraying Muslim Comedians

In Vaguely Qualified Productions LLC v. Metropolitan Transportation Authority, (SD NY, Oct. 7, 2015), a New York federal district court issued a preliminary injunction requiring the Metropolitan Transportation Authority to display plaintiff's advertising campaign for its film The Muslims Are Coming! in the New York City subway system. The film is the story of a group of American Muslim comedians who travel across the country performing stand-up comedy.  The advertising posters use comedic satire to attract the reader's attention and refer the reader to the film's website.  For example, one ad reads: "The Ugly Truth About Muslims: Muslims have great frittata recipes."

After initially accepting the ads, the MTA later refused them under a revised policy that barred ads which are political in nature.  The policy change came in response to a court order requiring the MTA to accept an anti-Muslim ad from the American Freedom Defense Initiative. (See prior posting.) In yesterday's decision, the district court held that VQP's proposed ads are commercial, and not political in nature:

...[T]o "prominently or predominately" advocate or express a political viewpoint, an advertisement must do far more than refer to a subject about which there is a lack of national consensus.

The court went on to hold that the MTA's determination that VQP's ads were political is not a viewpoint neutral decision:

To suggest, as the MTA's actions do, that an advertisement for the Republican presidential debate with photographs and quotes from candidates is somehow less "political" than humorous statements about the Muslim population's dislike of both terrorism and insufficient bagel schmear is, quite clearly, not viewpoint neutral.

Wall Street Journal reports on the decision. Muslim Advocates' press release on the decision also includes a link to the original complaint in the case.

6th Circuit Reopens Settlement of Suit Challenging Kentucky's Placements In Faith-Based Facilities

In Pedreira v. Sunrise Children's Services, Inc., (6th Cir., Oct. 6, 2015), the U.S. 6th Circuit Court of Appeals in a 2-1 decision essentially reopened an Establishment Clause lawsuit that had been settled after 14 years of litigation. At issue was the state of Kentucky's funding of treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization. A Kentucky federal district court entered an order incorporating terms of a settlement between the parties and held that Sunrise had no standing to object to the settlement between Kentucky and plaintiffs challenging the funding.  (See prior posting.) The 6th Circuit however held that the district court's dismissal was effectively a consent decree, and before entering a consent decree the court is required to allow anyone affected by the decree to present evidence and have its objections heard. It emphasized that

the consent decree singles out Sunrise by name for special monitoring by the ACLU and Americans United; and in doing so, Sunrise argues, the decree subjects Sunrise to unique reputational harm. Thus, the decree denies Sunrise a chance to clear its name—and instead, over Sunrise’s objection, imposes the very reputational harm that Sunrise sought to avoid by means of 15 years of litigation. 

Judge Black dissented, saying: "After fourteen years of contentious litigation, the district court judge helped effectuate settlement of this case. His actions should be entitled to our deference."  Courthouse News Service reports on the decision.

Pakistan's Supreme Court Upholds Death Sentence For Assassin Angered Over Blasphemy

Yesterday a 3-judge panel of Pakistan's Supreme Court upheld the death sentence that had been imposed on Mumtaz Qadri, a former elite force guard who in 2011 killed Salmaan Taseer, governor of Punjab, Pakistan's largest province.  Qadri acted because of Taseer's support for a pardon for Aasia Bibi, a Christian woman who had been sentenced to death for blasphemy. (See prior posting.) According to the Wall Street Journal:

Lawyers for the defendant, Mumtaz Qadri, had argued he should be treated with leniency because he acted to defend the honor of the Prophet Muhammad. But the judges sided with prosecutors who said Mr. Qadri had committed a straightforward, premeditated murder.

The Supreme Court also reinstated Qadri's conviction for violation of the country's anti-terrorism laws.  A backer of Qadri reacted to the decision, saying:

This is going to cause anarchy in the country, because the followers of the Prophet, peace be upon him, are very upset. They have imposed the white man’s law on us.

Indiana High School Sued Over Upcoming Christmas Pageant

The ACLU and Freedom From Religion Foundation filed a federal lawsuit yesterday challenging as an Establishment Clause violation an Elkhart, Indiana public high school's annual "Christmas Spectacular."  The complaint (full text) in Freedom From Religion Foundation v. Concord Community Schools, (ND IN, filed 10/7/2015) alleges:

Each winter for the past several decades, the High School has staged a “Christmas Spectacular,” a series of performances taking place at the High School in which students perform various holiday songs and to which other students, family members, and members of the community are invited to attend. While the holiday songs chosen for the Christmas Spectacular vary somewhat each year, the Christmas Spectacular always closes with an approximately 20-minute live depiction—also by students of the High School—of the story of the birth of Jesus. This event is set to be staged again in early December of 2015....

The FFRF press release announcing the filing of the lawsuit includes a link to a video of last year's performance.

Recent Prisoner Free Exercise Cases

In Utt v. Brown, 2015 U.S. Dist. LEXIS 131347 (ED NC, Sept. 29, 2015), a North Carolina federal district court permitted a Wiccan inmate to move ahead with his free exercise claims regarding corporate worship, feast participation, and practice of his religion outside of the areas specifically designated for religious worship.  The case was referred for a settlement conference.

In Hatcher v. Roller, 2015 U.S. Dist. LEXIS 131192 (ED TN, Sept. 28, 2015), a Tennessee federal district court dismissed an inmate's request for a place of solitary and silence in the prison for him to pray to his God "alone and in peace."

In Goode v. Farrell, 2015 U.S. Dist. LEXIS 132208 (ED PA, Sept. 30, 2015), a Pennsylvania federal district court dismissed a complaint by a pre-trial detainee seeking to stop officials from using space previously designated for Muslim religious services as a clothing storage space.

In Thomas v. Waugh, 2015 U.S. Dist. LEXIS 132308 (ND NY, Sept. 30, 2015), a New York federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 133859, July 24, 2015) and allowed a Jewish inmate to move ahead with his complaint that he was barred from wearing a larger head covering than the typical Jewish yarmulke. He claims the standard-size yarmulke will not fit over his hair.

In Suggs v. Maxymillian, 2015 U.S. Dist. LEXIS 132300 (ND NY, Sept. 30, 2015), a New York federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 133443, Sept. 14, 2015) and allowed Sexual Offender Treatment Program detainees to move forward on claims by a Muslim and by a follower of Neopaganism that they face limitations on their ability to practice their religions and gain access to appropriate clergy.

In Lopez v. Cipolini, 2015 U.S. Dist. LEXIS 133799 (SD NY, Sept. 30, 2015), a New York federal district court held that an inmate adequately stated an equal protection claim in her complaint that a corrections official prevented her from attending the two religious services because of her hair and because of her sexuality. The court dismissed plaintiff's free exercise claim without prejudice.

School Prayer Lawsuit Settled

The Freedom From Religion Foundation announced Monday the settlement of its lawsuit against the Emanuel County, Georgia school system. (See prior posting.)  The suit challenged prayer in kindergarten and first grade classrooms and the mistreatment of students who objected. FFRF says it is dismissing its suit after the county implemented teacher training on the obligation not to promote religious beliefs in the classroom and paid damages to the complaining family.

Suit Says Proposed Annexation By Hasidic Town Violates Establishment Clause

As reported by the Wall Street Journal, in a lawsuit filed this week in state court in New York, an environmental group charges that the proposed annexation of 507 acres of land (and an alternative proposal to annex 164 acres) in the town of Monroe by the predominantly Hasidic village of Kiryas Joel violates the Establishment Clause. The 89-page complaint (full text) in Preserve Hudson Valley v. Town Board of the Town of Monroe, (NY Sup Ct Westchester County, filed 10/5/2015) alleges, in addition to challenges to the environmental analysis, that:

The Town Board’s and the Village Board’s determinations on the Annexation Petitions would unconstitutionally cede electoral territory and political power to a political subdivision whose franchise is, in effect, determined by a religious test. See Board of Education of Kiryas Joel Village School District v. Grument, et al. ..., 512 U.S. 687, 114 S. Ct 2481 (1994) (holding that legislative action that created a separate school district solely to serve the Village’s “distinctive population” impermissibly delegated political power “to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism”). The unconstitutional result  posed by the Annexation Petitions, in and of itself, renders their form and content noncompliant with Article 17 of the General Municipal Law....

The lawsuit, growing out of petitions by Hasidic Jewish residents of Monroe to have their property annexed by Kiryas Joel, also raises other challenges to the annexation attempt.  In a separate lawsuit filed last week, ten municipalities also challenged the annexation.

Recent Articles of Interest

From SSRN:

• Jennifer Lee Koh, Agape, Grace, and Immigration Law: An Evangelical Perspective, (September 26, 2015).
• John Copeland Nagle, Pope Francis, Environmental Anthropologist, (Regent University Law Review, Vol. 28, 2016, Forthcoming).
• Shawn Rajanayagam & Carolyn M. Evans, Corporations and Freedom of Religion: Australia and the United States Compared, (Sydney Law Review, Vol. 38, No. 3, 2015).
• Mirjam Künkler & Hanna Lerner, A Private Matter? Religious Education and Democracy in Indonesia and Israel, (British Journal of Religious Education, Forthcoming).
• Helen M. Alvare, The Opposite of Anarchy and the Transmission of Faith: The Freedom to Teach after Smith, Hosanna Tabor, Obergefell and the Ascendancy of Sexual Expressionism, (San Diego Law Review, Forthcoming 2015).
• Helen M. Alvare, Religious Freedom versus Sexual Expression: A Guide, (Journal of Law and Religion, 2015, Forthcoming).
• Chiara Cosentino, Safe and Legal Abortion: An Emerging Human Right? The Long-Lasting Dispute with State Sovereignty in ECHR Jurisprudence, (Human Rights Law Review (2015) 15 (3): 569-589).

From SSRN (Islamic Law):

• Bernard Kenneth Freamon, ISIS, Boko Haram, and the Human Right to Freedom from Slavery Under Islamic Law, (Fordham International Law Journal, Forthcoming).
• Haider Ala Hamoudi, Sex and the Shari’a: Defining Gender Norms and Sexual Deviancy in Shi’i Islam, (Fordham International Law Journal, Vol. 39, 2015).
• Federica Sona, Overcoming Obstacles Through Hidden Nuptial Paths: Foreign Muslim Purported Spouses Marrying in Italy, (Review of Social Studies (RoSS), Vol.2, No.1, Spring 2015, pp.25-53).

From SSRN (Same-Sex Marriage):

• Helen M. Alvare, Marriage and Family as the New Property: Obergefell, Marriage and the Hand of the State, (Regent University Law Review, Forthcoming).
• S. Ernie Walton, Conservatives Should Attack Obergefell's Interpretive Method, Not Its Hijacking of the Democratic Process, (September 25, 2015).
• Ethan J. Leib, Hail Marriage and Farewell, (Fordham Law Review, Vol. 84, 2015).
• Keith Cunningham-Parmeter, Marriage Equality, Workplace Inequality: The Next Gay Rights Battle, (Florida Law Review, Vol. 67, 2015).
• Fichera, Massimo, ‘Ye Shall Know Them by Their Fruits’ Same-Sex Marriage and the Role of Transnational Law: Changes in the European Landscape, (Helsinki Legal Studies Research Paper No. 39, Sept. 2015).

ACLU Sues Catholic Hospitals Over Denial of Abortions To Treat Serious Medical Complications

In a federal lawsuit filed last week, the ACLU sued a Michigan-based Catholic health care system charging that its hospitals violate federal law by denying appropriate emergency care to women suffering pregnancy complications, including miscarriages. The complaint (full text) in American Civil Liberties Union v. Trinity Health Corporation, (ED MI, filed 10/1/2015), contends that the hospitals, by following the Conference of Bishops' Ethical and Religious Directives for Catholic Health Care Services ban on terminating a woman's pregnancy under any conditions, violate the Emergency Medical Treatment and Active Labor Act as well as the Rehabilitation Act. In a press release announcing the filing of the lawsuit, the ACLU said in part:

We’re taking a stand today to fight for pregnant women who are denied potentially life-saving care because doctors are forced to follow religious directives rather than best medical practices. Catholic bishops are not licensed medical professionals and have no place dictating how doctors practice medicine, especially when it violates federal law.

Two Cert Denials of Interest As SCOTUS Opens 2015 Term

In the Order List issued yesterday at the beginning of the October 2015 Term, the U.S. Supreme Court denied certiorari in hundreds cases.  Among the cases in which the Court denied review were:

Phillips v. New York (Docket No. 14-1445): In the case, the U.S. 2nd Circuit Court of Appeals he U.S. Second Circuit Court of Appeals upheld New York's requirement that, subject to medical and religious exemptions, all children be vaccinated before attending public school. It also upheld, over free exercise objections, New York's regulation allowing officials to temporarily exclude students who are exempted from the vaccination requirement on religious grounds from school during an outbreak of a vaccine‐preventable disease. (See prior posting.) AP reports on the Court's action.

Sac and Fox Nation of Oklahoma v. Thorpe (Docket No. 14-1419): In the case the U.S. 3rd Circuit Court of Appeals held that despite its literal language, Congress did not intend the Native American Graves Protection and Repatriation Act to apply to protect Native American rights in a dispute between the sons of famous Native American Athlete Jim Thorpe and the Pennsylvania town that renamed itself after Thorpe in an agreement with Thorpe's widow (his third wife) to have his remains buried there.  (See prior posting). New York Daily News has more background and reports on the court's action.

Europe's Parliamentary Assembly Adopts Resolution on Freedom of Religion

Last week (Sept. 30), the Council of Europe's Parliamentary Assembly  adopted Resolution 2076 titled Freedom of Religion and Living Together in a Democratic Society.  The Resolution sets out the Assembly's primary concerns:

Many beliefs and churches are developing in Europe alongside the religions which have influenced the history of our continent. The Assembly notes with great regret and anxiety that this continues to give rise to tensions, lack of understanding and suspicion, and even to xenophobic attitudes, extremism, hate speech and the most despicable violence. This vicious circle must be broken....

[T]he Assembly considers that the principle of secularity does not require the elimination of religion from social space; quite the contrary, this principle, properly interpreted and implemented, protects the possibility for the different beliefs, religious and non-religious, to coexist peacefully while all parties respect shared principles and values.

The Resolution focuses on the extent to which governments may regulate certain religious practices:

...  Certain religious practices remain controversial within national communities. Albeit in different ways, the wearing of full-face veils, circumcision of young boys and ritual slaughter are divisive issues and the Assembly is aware of the fact that there is no consensus among Council of Europe member States on these matters....

As far as circumcision of young boys is concerned the Assembly ... out of a concern to protect children’s rights which the Jewish and Muslim communities surely share, recommends that member States provide for ritual circumcision of children not to be allowed unless practised by a person with the requisite training and skill, in appropriate medical and health conditions. Furthermore, the parents must be duly informed of any potential medical risk or possible contraindications and take these into account when deciding what is best for their child, bearing in mind that the child’s interest must be considered the first priority.

Where ritual slaughter is concerned, the Assembly is not convinced that legislation prohibiting this practice is really necessary, or that it would be the most effective way of ensuring the protection of animals; legislation which imposes strict requirements, like that of France and Germany, achieves a balanced reconciliation of the legitimate concern to protect animals from unjustified suffering and respect for the right to freedom of religion.

 The Council's resolutions are advisory. A video of the Council's debate on the Resolution is online.

9 Alabama Counties Stop Issuing Marriage Licenses In Response To Marriage Equality Ruling

AP reports today that in at least 9 of Alabama's 67 counties judges have completely stopped issuing marriage licences now that the U.S. Supreme Court has legalized same-sex marriages.  The judges are relying on a 1961 change in Alabama's law that made it optional rather than mandatory for probate courts to issue marriage licences.  This has created a region in southwest Alabama with a population of 78,000 in which residents will have to travel to other counties to obtain a license.

Recent Prisoner Free Exercise Cases

In Welch v. Spaulding, (6th Cir., Sept. 30, 2015), the U.S. 6th Circuit Court of Appeals in a 2-1 decision affirmed the district court's denial of qualified immunity to prison food service officials who are being sued by a Muslim inmate who claims that his Ramadan meals lacked sufficient caloric value.

In Merrick v. Ryan, 2015 Ariz. App. Unpub. LEXIS 1173 (AZ App., Sept. 24, 2015), an Arizona appeals court dismissed an inmate's suit claiming he was denied religious materials and practices. The suit asserting state law claims failed to name the state as a defendant.

In Moon v. Garcia, 2015 U.S. Dist. LEXIS 129291 (SD IL, Sept. 25, 2015), an Illinois federal district court permitted plaintiff, a former federal inmate, to proceed with his claim that authorities created a plan to disrupt authorized religious activities of Muslim inmates.

In Grayson v. Goetting, 2015 U.S. Dist. LEXIS 129290 (SD IL, Sept. 25, 2015), an Illinois federal district court permitted an African Hebrew Israelite inmate who had taken the Nazirite vow to proceed with his complaint that he was forced to remove his dreadlocks.

In Hudson v. Spencer, 2015 U.S. Dist. LEXIS 129304 (D MA, Sept. 25, 2015), in a suit by Nation of Islam inmates, a Massachusetts federal district court ordered correctional authorities to  provide plaintiffs access to televised recordings of Jumu'ah services led by an appropriate chaplain whenever an NOI chaplain is unavailable to lead services in person. However the court dismissed complaints about failure to accommodate various other NOI practices relating to fasting and feast sessions, religious attire and "spiritual drilling."

In Dicks v. Shearin, 2015 U.S. Dist. LEXIS 129824 (D MD, Sept. 28, 2015), a Maryland federal district court held that a Muslim inmate's rights may have been infringed when the former warden failed to follow a Department of Corrections policy that assured Muslim inmates fasting during Ramadan received the same caloric intake as non-fasting prisoners.

In Ramadan v. FBOP, 2015 U.S. Dist. LEXIS 129845 (SD WV, Sept. 28, 2015), a West Virginia federal district court rejected a Muslim inmate's challenge to the policy of barring congregational prayer, and his complaint that he was prevented for a period of time from bringing a copy of the Noble Quran into the chapel.

In Johnson v. Swibas, 2015 U.S. Dist. LEXIS 130379 (D CO, Sept. 28, 2015), a Colorado federal district court adopted a magistrate's recommendations and allowed an inmate to move ahead certain of the defendants with his complaint that he was denied access to kosher meals to which he is not allergic.

In Woodward v. Ali, 2015 U.S. Dist. LEXIS 130687 (ND NY, Sept. 29, 2015), a New York federal district court adopted a magistrate's recommendations and denied summary judgment to a Muslim inmate on his complaint that he was removed from the Ramadan meal list.

In Elmore v. Herring, 2015 U.S. Dist. LEXIS 131348 (ED NC, Sept. 29, 2015), a North Carolina federal district court dismissed complaints by a Muslim inmate regarding a prison's post-chapel strip-search policy, his allegations that Christian inmates are allowed more services and furnished more resources than Muslim inmates, and his complaint regarding the absence of a Halal diet.

Police Departments Adding "In God We Trust" To Patrol Cars

The New York Times, in an article posted yesterday, reviews the growing trend among law enforcement agencies in the South and Midwest to place the national motto "In God We Trust" on their squad cars. The Times reports:

“With the dark cloud that law enforcement has been under recently, I think that we need to have a human persona on law enforcement,” said Sheriff Brian Duke of Henderson County, Tenn. “It gave us an opportunity to put something on our cars that said: ‘We are you. We’re not the big, bad police.’ ”

But critics worry that displays of “In God We Trust” on taxpayer-funded vehicles cross the threshold of constitutionality, even though the courts have repeatedly brushed aside challenges to the motto, which Congress enshrined in 1956. Explanations like the one Sheriff Duke offered have not curbed those frustrations.

“This motto has nothing to do with the problem of police forces’ shooting people, but it’s a great way to divert attention away from that and wrap yourself in a mantle of piety so that you’re above criticism,” said Annie Laurie Gaylor, a co-president of the Freedom From Religion Foundation, a Wisconsin-based group that has demanded that law enforcement officials stop exhibiting the motto. “The idea of aligning the police force with God is kind of scary. That’s the first thing you’d expect to see in a theocracy.”

Class Action Filed Against Burma's President By Persecuted Rohingyas

As reported by Reuters and Courthouse News Service, this week a coalition of 19 Muslim American organizations and a Rohingya Muslim who previously lived in the State of Rakhine in Myanmar filed a class action lawsuit against the President of Burma (Myanmar) and several other current or former government officials of Myanmar or Rakhine state.  The complaint (full text) in Burma Task Force v. Sein, (SD NY, filed 10/1/2015), filed in federal district court in New York, alleges that defendants violated the Torture Victims Protection Act and the Alien Tort Claims Act, contending:

The Rohingya people numbering over 1.3 million is a Muslim minority living in western Myanmar. Although they are living in the country for generations they are denied citizenship and basic necessities including basic healthcare, work and schooling. They are  primary targets of hate crimes and discrimination amounting to genocide fueled by extremist nationalist Buddhist monks and Thein Sein government....

In 1982, the Burman supremacist government stripped most Rohingya of their citizenship. They were re-named “Bengalis,” and reclassified as foreign to Myanmar. Rohingya speak a different language and are not “Bengalis,” a different ethnic group that lives mostly in Bangladesh. Their only common identity is that both groups are Muslim.

Carson Want IRS To Penalize CAIR Over Its Call For Him To Leave Presidential Race

As previously reported, last month the Council on American-Islamic Relations called for Dr. Ben Carson to withdraw from the Republican Presidential contest after Carson told an interviewer that a Muslim should not be made President and that Islam is inconsistent with the U.S. Constitution.  Now, as reported by today's Washington Times, Dr. Carson is urging the Internal Revenue Service to immediately revoke CAIR's tax-exempt status.  Carson has posted a petition on his campaign website saying in part:

The Council on Islamic-American Relations (CAIR), a U.S. Muslim group, recently demanded that I withdraw as candidate for the 2016 presidential race. By doing so, the organization has brazenly violated IRS rules prohibiting tax-exempt nonprofits like CAIR to intervene in a political campaign on behalf of—or in opposition to—a candidate. 

5th Circuit (With Dissents) Denies En Banc Rehearing In Non-Profit Contraceptive Mandate Cases

In East Texas Baptist University v. Burwell, (5th Cir., Sept. 30, 2015), the U.S. 5th Circuit Court of Appeals denied a panel rehearing and, by a vote of 4-11, denied an en banc rehearing in three related cases, all raising challenges to the Obama administration's accommodation for religious non-profits that object to the Affordable Care Act requirement that their health insurance policies cover contraceptive services. The 3-judge panel held that plaintiffs had not shown a substantial burden on their religious exercise. (See prior posting.) Judge Jones, joined by Judges Clement and Owen filed a dissent from the denial of the en banc rehearing, saying in part:

This case goes to the heart of religious liberty protected by the Religious Freedom Restoration Act (“RFRA”).... How ironic that this most consequential claim of religious free exercise, with literally millions of dollars in fines and immortal souls on the line, should be denied when nearly every other individual religious freedom claim has been upheld by this court. How tragic to see the humiliation of sincere religious practitioners, which, coming from the federal government and its courts, implicitly denigrates the orthodoxy to which their lives bear testament. And both ironic and tragic is the harm to the JudeoChristian heritage whose practitioners brought religious toleration to full fruition in this nation. Undermine this heritage, as our founders knew, and the props of morality and civic virtue will be destroyed.

Austin American-Statesman reports on the rehearing denial.

Britain Exempts Sikhs From Safety Helmet Requirements

Britain's Department for Work and Pensions issued a press release yesterday announcing that Sikhs who wear turbans for religious reasons are now exempt in almost all workplaces from safety helmet rules.  Previously, an exemption was available only for Sikhs working in the construction industry.  Parliament in enacting the Deregulation Act 2015 extended the exemption to all industries.  Under Sections 6 and 7 of the Act, however, safety helmets may still be required for Sikh first responders and those in the military. Law & Religion UK blog reports on the changes.

USCIRF Extended To December 11 As Part of Congressional Continuing Resolution

The U.S. Commission on International Religious Freedom has received at least a temporary reprieve.  On Wednesday President Obama signed the Continuing Appropriations Act that funds the government until December 11.  The funding provisions are a rider to HR 719, the TSA Office of Inspection Accountability Act of 2015. (Full text of Act.)  In addition, Sec. 147 of the Act extends the life of the U.S. Commission on International Religious Freedom to December 11.  Without this extension, USCIRF would have ceased to exist on Sept. 30.

School Sued Over Refusal To Allow Religious Allusion On Donor's Plaque

A lawsuit was filed Wednesday against the Colorado School of Mines by an alumnus (a former member of the school's football team) because the school rejected an inscription he chose for his donor plaque.  The complaint (full text) in Lucas v. Johnson, (D CO, filed 9/30/2015), contends that as part of the school's fundraising campaign for a new Athletic Complex, donors could purchase a personalized nameplate to be placed in the new football locker room.  The donor could place a 3-line quote, along with certain other information, on his or her nameplate.  Alumnus Michael Lucas submitted only one line for his quote: "Colossians 3:23 & Micah 5:9."  The school rejected the quote because if one went to the text of the Colossians reference, it included mention of "the Lord." A school faculty member soliciting contributions told Lucas that his nameplate could not use a quote that contained the words God, Lord, or Jesus, but he could choose another Bible verse that did not contain those words.  Plaintiff contends this policy violates his 1st and 14th Amendment rights.  Alliance Defending Freedom issued a press release announcing the filing of the lawsuit.

Most of Rabbinical College's Challenges To Land Use Restrictions Are To Proceed To Trial

In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, (SD NY, Sept. 29, 2015), a New York federal district court ruled on various motions in challenges to the land use ordinances of the Village of Pomona, New York that allegedly were adopted to prevent plaintiffs from constructing a planned rabbinical college. (See prior related posting.)  In a 145-page opinion, the court imposed limited sanctions on defendants for their destruction of a relevant Facebook posting:

Because Defendants concealed—and failed to disclose—the relevant Facebook post and potentially a portion of the accompanying text messages, the jury will be instructed that it may infer that the contents of the Facebook Post indicated discriminatory animus towards the Hasidic Jewish population. Defendants also will be precluded from offering evidence to rebut that specific inference, though they can still present evidence to indicate that the Challenged Laws were not adopted for discriminatory reasons.

The court went on to allow plaintiffs to proceed on their equal protection, free exercise, freedom of association, RLUIPA, Fair Housing Act and various state law challenges, denying motions by both parties for summary judgment.  However the court dismissed plaintiffs' free speech challenge, holding that "the fact that building a rabbinical college might enable religious speech does not render its construction speech itself."

Respondents In Oregon Wedding Cake Case Refuse To Post Bond For Their Appeal

As previously reported, in July the Oregon Bureau of Labor and Industries, as part of a cease and desist order, levied $135,000 in damages against the owners of Sweet Cakes by Melissa Bakery for their refusal to provide a wedding cake to a same-sex couple. Instead of paying the damages the owners have filed an appeal with the state court of appeals, but, according to yesterday's Oregonian, they refuse to provide the bond or irrevocable letter of credit that is required to pursue the appeal. Aaron and Melissa Klein apparently claim financial hardship even though crowdfunding sites set up to support them have raised some $515,000. State officials have now filed in court seeking a judgment that will allow them to attach assets belonging to the Kleins. [Thanks to Scott Mange for the lead.]

Anchorage, Alaska Passes LGBT Anti-Discrimination Law Over Religious Objections

Late Tuesday night, the Anchorage, Alaska Assembly by a vote of  9-2 enacted amendments to the city's equal rights ordinance barring discrimination on the basis of sexual orientation and gender identity in housing, employment, public accommodations and education. (Full text of Ordinance as proposed.) Alaska Dispatch News reporting on the Assembly's actions says that the ordinance will take effect when signed by Assembly Chair Dick Traini, expected on Friday. Mayor Ethan Berkowitz does not plan to veto the ordinance. A package of 17 proposed amendments (full text) were largely rejected. They focused on expanding religious exemptions and rules for gender-segregated restrooms.  According to the Dispatch News:

In the end, only two were approved: a Flynn amendment stating that nothing in the law would trump state and federal First Amendment rights, and an Evans amendment adding a reference to a Supreme Court case, Hosanna-Tabor Evangelical Lutheran Church and School vs. EOCC, to define a “ministerial exemption.”

The Assembly narrowly rejected Assembly Chair Dick Traini's proposals to extend the city’s existing religious preference law to “nonprofit affiliates,” such as Providence Alaska Medical Center, and to add language that would prevent employers from firing employees for expressing religious views.

Opponents of the law, who argue that it infringes religious liberty, plan to seek a referendum to repeal it. The Assembly rejected a proposal to require a public advisory vote on the measure.  Alaska Public Media reported:

Opposition to the bill came primarily from two socially conservative Assembly Members from the Eagle River Chugiak area, Amy Demboski and Bill Starr, both of whom say it infringes on residents’ religious and free speech rights. Much of the audience was wearing red–a sign of opposition to the measure, called for by a coalition of conservative faith groups. After hours of impassioned testimony that often addressed the crowd instead of fellow Assembly Members, Starr left his seat behind the dais to speak from the floor as a citizen rather than official.

“I buy into that Bible, that book, that says homosexuality and that type of deviant behavior is wrong.”

He then slipped on a red vest before receiving the night’s only standing ovation.

“And I’ll tell you what red is–somebody said ‘well what what are you wearing red for?’ It’s the blood of Jesus Christ folks, that’s what it represents.”

CNN Says Warren Jeffs Still Directs FLDS Church From Prison

In a long investigative report on convicted sexual offender and FLDS Church leader Warren Jeffs, CNN quotes a private investigator who says that while day-to-day matters are run Jeffs' brother, Jeffs himself still "actively directs church matters from prison." CNN produced an hour-long special last night on Jeffs and life inside the polygamous FLDS Church.

DOJ Files RLUIPA Suit Against Illinois City Over Mosque Rezoning

The U.S. Department of Justice announced yesterday that it has filed suit against the city of Des Plaines, Illinois alleging that the city violated RLUIPA when it refused to rezone a vacant office building to allow the American Islamic Center to operate a place of worship there. The complaint (full text) in United States v. City of Des Plaines, Illinois, (ND IL, filed 9/30/2015) alleges the city violated the substantial burden, equal terms and discrimination provisions of RLUIPA. As summarized in the press release:

The complaint alleges that the city imposed parking standards and other zoning criteria that were not supported under its zoning ordinance and that it had never imposed on non-Muslim places of worship.

Chicago Tribune reports on the lawsuit.

Pope Francis Met With Kim Davis; Supports Conscientious Objection

In a press release issued yesterday, Liberty Counsel disclosed that Rowan County, Kentucky Clerk Kim Davis met with Pope Francis at the Vatican Embassy in Washington last Thursday. Davis' husband was also at the private meeting during which the Pope, speaking in English, thanked Davis for her courage and presented her with rosaries for her parents who are Catholic. Davis has refused to issue marriage licences to same-sex couples, and was jailed for contempt for several days as a result. (See prior posting.) In a press conference on his plane back to Rome (before the meeting with Davis was announced publicly), the Pope told reporters that conscientious objection is a human right. When asked whether that applies to government officials, the Pope responded: "It is a human right and if a government official is a human person, he has that right."

Archdiocese Must Go To Trial On Teacher's Hostile Work Environment Claims

In Bohnert v. Roman Catholic Archbishop of San Francisco, (ND CA, Sept. 25, 2015), a California federal district court refused to dismiss a hostile work environment and emotional distress suit by by a former biology teacher in a boys' Catholic high school.  As described by the court, male students at the school sexually harassed the teacher, including disseminating several "upskirt" photos and videos of her.  In a 38-page opinion, the court rejected the Archdiocese's  motion for summary judgment on its "ministerial exception" and "church autonomy" defenses, finding that numerous factual issues remain.

Recent Articles of Interest

From SSRN:

• Meital Pinto, The Absence of the Right to Culture of Minorities Within Minorities in Israel: A Tale of a Cultural Dissent Case, (4 Laws 579–601 (2015)).
• Janne Elisabeth Nijman, Grotius’ Imago Dei Anthropology: Grounding Ius Naturae et Gentium, (Martti Koskenniemi, Monica García-Salmones, and Paolo Amoroso (Eds.), International law and Religion (Forthcoming)).
• Eric Heinze, Hate Speech and Democratic Citizenship, (in Hate Speech and Democratic Citizenship, Oxford University Press, February 2016).
• Darryl Li, Jihad in a World of Sovereigns: Law, Violence, and Islam in the Bosnia Crisis, (Law and Social Inquiry, 2015).
• Christopher R. Hoyt, Income Tax Deductions for Charitable Bequests of IRD, (September 24, 2015).

From SSRN (Same-Sex Marriage):

• James M. Donovan, Half-Baked: The Demand by For-Profit Businesses for Religious Exemptions from Selling to Same-Sex Couples, (Loyola of Los Angeles Law Review, Vol. 49, 2015).
• Patrick Talbot, Same-Sex Marriage and Religious Liberty Clashes in the U.S., After Obergefell v. Hodges: (An American Constitutional Challenge), (Anthology on Religious Freedom by Center of Ethics and Socio-Religiosity Studies Petra Christian University (PCU), Forthcoming).
• Anthony C. Infanti, Victims of Our Own Success: The Perils of Obergefell and Windsor, (Ohio State Law Journal Furthermore, Forthcoming).
• Peter Nicolas, Obergefell's Squandered Potential, (California Law Review Circuit, 2015 Forthcoming).

Malaysia's Federal Court Upholds State Ban On Producing Book Contrary To Islamic Law

As reported by Bernama and Malaysian Insider, Malaysia's Federal Court yesterday upheld against freedom of expression and other challenges Section 16 of the Selangor Syariah Law which criminalizes producing, disseminating or possessing for sale any book or document that is contrary to Islamic law.  ZI Publications and its director Mohd Ezra Mohd Zaid were charged by Selangore state authorities with violating Section 16 by publishing a book titled "Allah, Love and Liberty" written by a Canadian author and Muslim reformer Irshad Manji. ZI and Zaid challenged the validity of the state law in the Federal Court.  But Justice Raus, writing for a 5-judge panel, said that the constitutional protections for freedom of expression must be read together with provisions declaring Islam as the country's religion and giving states the power to control or restrict propagation of any religious doctrine or belief among persons professing the religion of Islam.

Estate Loses Income Tax Deduction For Large Contributions To Churches Because of Will Challenges

In Estate of DiMarco v. Commissioner, (T.C., Sept. 21, 2015), the U.S. Tax Court denied the estate of John DiMarco a deduction on its 2010 income tax return for a $314,942 contribution to two churches.  DiMarco's will left his residuary estate to the churches he attended regularly at the time of his death. The Tax Court held that because of various challenges to the will, it was not clear until 2013 that the churches would receive the contributions.  Thus presumably any deduction would have to be taken in that year, if income was available to offset against the deduction. The court affirmed the tax commissioner's assessment of a $108,588 deficiency for 2010.

5th Circuit's Revised Opinion Again Allows School To Reject Jumbotron Ad of Tattooed Jesus

Last week in Little Pencil, LLC v. Lubbock Independent School District, (5th Cir., Sept. 23, 2015), the U.S. 5th Circuit Court of Appeals denied an en banc rehearing, but granted a panel rehearing, in a religious free speech case.  The panel withdrew its earlier brief opinion that merely adopted the reasoning of the district court and substituted an opinion that reached the same result-- dismissing the complaint-- but on somewhat narrower grounds.  At issue was a high school's refusal to display on its football field jumbotron an ad depicting a tattooed Jesus and a website URL, as part of a marketing concept using a new way to share the Bible's teachings. In its new opinion, the court s

We hold that the football field was a limited public forum and LISD’s content-based, viewpoint-neutral limitations were reasonable in the light of a Texas law against tattoo parlors serving minors and LISD policies against visible tattoos.... The plaintiffs' Establishment Clause claim fails because LISD may legitimately exclude the ad for its tattoo content without a "risk [of] fostering a pervasive bias or hostility to religion..."

The court also rejected due process, equal protection and free exercise claims.

USCIRF Sunsets Sept. 30 If New Legislation Is Not Passed

While most of the Congressional attention to Sept. 30 has focused on the broad expiration of government funding on that date if a Continuing Resolution is not passed (background), less noticed is the fact that authorization for the U.S. Commission on International Religious Freedom also sunsets on that date.  Not surprisingly, last week USCIRF attempted to call attention to the problem by issuing a press release.  In Congress, S. 2078 has been introduced to extend the Commission for another four years, but so far it has only been reported out of committee in the Senate.

Recent Prisoner Free Exercise Cases

In Thomas v. Morris, 2015 U.S. Dist. LEXIS 125911 (ED WI, Sept. 21, 2015), a Wisconsin federal district court allowed an inmate to move ahead with his complaint that certain jail officials refused to honor his food requests relating to Passover 2015.

In Thomas v. Lawler, 2015 U.S. Dist. LEXIS 126135 (MD PA Sept. 22, 2015), a Pennsylvania federal district court dismissed a Muslim inmate's complaints that the multi-faith chapel contains offensive religious iconography; he is unable to pray shoulder to shoulder with other Muslims due to inadequate space; he is unable clean himself prior to religious services; and the chapel's location up 4 flights of steps often means he cannot attend prayer services because his health prevents his climbing stairs,

In Gee v. Sabol, 2015 U.S. Dist. LEXIS 126872 (MD PA, Sept 22, 2015), a Pennsylvania federal district court rejected an inmate's complaint that he was denied kosher meals, finding he had not established that he has a sincere religious belief in Judaism.

In Denegal v. Brazelton, 2015 U.S. Dist. LEXIS 126982 (ED CA, Sept. 22, 2015), a California federal magistrate judge recommended that an inmate be allowed to move ahead against one of the defendants on his complaint that he was denied his right to a name change for religious reasons.

In Karafili v. Cruzen, 2015 U.S. Dist. LEXIS 127094 (ND CA, Sept. 22, 2015), a California federal district court permitted a Muslim inmate to move ahead with his complaint that Muslim group prayer was disrupted one day even though Muslim inmates had received permission to pray in groups of up to 15.

In Bouman v. Broome, 2015 U.S. Dist. LEXIS 127555 (SD MS, Sept. 23, 2015), a Mississippi federal district court adopted a magistrate's recommendations and dismissed a Jewish inmate's complaint seeking $9 million in damages for violation of  his free exercise rights when he was disciplined for taking his Passover meal out of the dining area into his cell.

In Stinski v. Chatman, 2015 U.S. Dist. LEXIS 128061 (MD GA, Sept. 24, 2015), a Georgia federal district court, adopting in part a magistrate's recommendations, allowed a Wiccan inmate to move forward against various defendants with complaints involving denial of religious items and observances, and complaints as to forced shaving and haircut.

In Begnoche v. DeRose, 2015 U.S. Dist. LEXIS 128633 (MD PA, Sept. 24, 2015), a Pennsylvania federal district court dismissed complaints by a Native American inmate regarding availability of a Native American spiritual adviser and celebration of the Green Corn Feast.

In Webb v. Broyles, 2015 U.S. Dist. LEXIS 128784 (WD VA, Sept. 24, 2015), a Virginia federal magistrate judge recommended dismissing an inmate's complaint that he was wrongly removed from the Common Fare diet.

Pope Francis Addresses Clergy Sex Abuse and New Definitions of Marriage

As reported by Vatican Radio, Pope Francis today in Philadelphia held a private meeting with victims of clergy sexual abuse. He then addressed a meeting of bishops and departed from his prepared remarks to begin as follows:

I hold the stories and the suffering and the sorrow of children who were sexually abused by priests deep in my heart.  I remain overwhelmed with shame that men entrusted with the tender care of children violated these little ones and caused grievous harm.  I am profoundly sorry. God weeps.

The crimes and sins of the sexual abuse of children must no longer be held in secret.  I pledge the zealous vigilance of the Church to protect children and the promise of accountability for all.

They, the survivors of abuse, have become true heralds of hope and ministers of mercy. We humbly owe each one of them and their families our gratitude for their immense courage to shine the light of Christ on the evil of the sexual abuse of children.

I’m telling you this because I’ve just met with a group of sex abuse victims who are being helped and accompanied here in Philadelphia.

The remainder of his remarks to the bishops are also carried in the same Vatican Radio coverage. Those remarks included the following, which appears to be a reference to the legal recognition of same-sex marriage:

Needless to say, our understanding, shaped by the interplay of ecclesial faith and the conjugal experience of sacramental grace, must not lead us to disregard the unprecedented changes taking place in contemporary society, with their social, cultural – and now juridical – effects on family bonds.  These changes affect all of us, believers and non-believers alike.  Christians are not “immune” to the changes of their times.  This concrete world, with all its many problems and possibilities, is where we must live, believe and proclaim.

Until recently, we lived in a social context where the similarities between the civil institution of marriage and the Christian sacrament were considerable and shared.  The two were interrelated and mutually supportive.  This is no longer the case. 

Church Official's Defamation Suit Dismissed On Ecclesiastical Abstention Grounds

In Dermody v. Presbyterian Church (USA), (KY Cir. Ct., Sept. 21, 2015), a Kentucky trial court dismissed on ecclesiastical abstention grounds a defamation suit by PCUSA's former Deputy Executive Director of Mission against PCUSA.  Plaintiff Roger Dermody based his claim on PCUSA's informing people outside the governing body of the church that Dermody had violated PCUSA's ethics policies, apparently by allowing pastors under his supervision to set up a new non-profit organization to support the creation of new worship communities. The court concluded that if it were to adjudicate the defamation claim and the defense of truthfulness, it would have to determine whether Dermody had in fact committed ethics violations, which would require it to interpret church doctrine and policies. [Thanks to Tom Rutledge for the lead.]

Iran Says It Will Sue Saudis Over Hajj Deaths

According to the Straits Times, Iran's Attorney-General Ibrahim Raeesi yesterday said that his country will file a lawsuit in international legal bodies against Saudi Arabia over the death of at least 769 people in a stampede during the  Hajj pilgrimage last week. (See prior posting.)  Some 130 of the dead were pilgrims from Iran, and another 340 Iranian nationals remain missing. Iran says Saudi authorities had inadequate safety measures at the symbolic stoning of the devil ritual.  The Saudi's say the stampede was beyond human control.

Pope Francis Speaks On Religious Liberty At Independence Hall

Pope Francis today during his visit to Philadelphia, delivered an address in front of Independence Hall.  The talk (full text) billed as the Address of Pope Francis at the Meeting for Religious Liberty was delivered to an audience comprised of many representatives of the immigrant community in the United States.  The Pope said in part:

Religious freedom certainly means the right to worship God, individually and in community, as our consciences dictate.  But religious liberty, by its nature, transcends places of worship and the private sphere of individuals and families. 

Our various religious traditions serve society primarily by the message they proclaim.  They call individuals and communities to worship God, the source of all life, liberty and happiness.  They remind us of the transcendent dimension of human existence and our irreducible freedom in the face of every claim to absolute power.  We need but look at history, especially the history of the last century, to see the atrocities perpetrated by systems which claimed to build one or another “earthly paradise” by dominating peoples, subjecting them to apparently indisputable principles and denying them any kind of rights.... 

In a world where various forms of modern tyranny seek to suppress religious freedom, or try to reduce it to a subculture without right to a voice in the public square, or to use religion as a pretext for hatred and brutality, it is imperative that the followers of the various religions join their voices in calling for peace, tolerance and respect for the dignity and rights of others.

CNN reported on the Pope's remarks, pointing out that Francis made "no explicit references to any of the U.S. Catholic bishops' recent battles over religious rights."

Nativity Scene Challenge Dismissed After New Law Creates Neutral Forum

In Freedom From Religion Foundation, Inc. v. Franklin County, Indiana, (SD IN, Sept. 23, 2015), an Indiana federal district court dismissed a suit challenging the annual display of a nativity scene on the lawn of the Franklin County courthouse.  After the suit was filed, the county enacted a new ordinance providing a content neutral system for erecting private displays on the courthouse lawn.  The court held that this eliminated plaintiffs' claim for injunctive relief.  While plaintiffs still sought nominal damages, the court held:

By seeking only nominal damages, plaintiffs concede ... that they suffered no actual injury, or at least that the injury they claim cannot be redressed by an award of actual damages; thus appearing to have no standing.

Thomas More Society issued a press release announcing the decision.