Commentary: Will We See A Repeat of the "Kim Davis Saga" Over Transgender Rights?

As momentum grows to add "gender identity" to anti-discrimination laws, an interesting shift in argument by opponents can be discerned.  Until recently, opposition focused primarily on privacy concerns.  In the referendum battle earlier this year over Houston's Equal Rights Ordinance, while opposition was centered in churches, it was expressed in terms of concern about "allowing men to enter women's restrooms and locker rooms-- defying common sense and common decency." (See prior posting.)

In recent days, however, we are seeing a subtle shift that begins to frame opposition to transgender rights as a religious liberty issue.  Earlier this week, Liberty Counsel filed an amicus brief (full text) on behalf of an organization known as Liberty Center for Child Protection in a 4th Circuit case involving the right of a Virginia school board to limit the use of sex-segregated locker rooms and restrooms on the basis of an individual's biological features. Liberty Counsel's press release describes its position as one that focuses on child protection:

Public schools adopting “gender identity” instead of biological sex abandons science, creates a hostile environment, and threatens the safety and well-being of children...

However language in the brief began to lay the foundation for a religious liberty argument by describing early researchers on transgender issues as individuals who had an "animus for Judeo-Christian sexual mores" and who blamed "Judeo-Christian principles, instead of early sexual trauma and mental illness for the distress suffered by 'transsexuals.'"

Then yesterday a lengthy online article (full text) by the conservative writer Ryan T. Anderson set out perhaps the clearest formulation yet of the religious liberty claim:

SOGI [Sexual Orientation and Gender Identity] laws threaten the freedom of citizens, individually and in associations, to affirm their religious or moral convictions — convictions such as that marriage is the union of one man and one woman or that maleness and femaleness are objective biological realities to be valued and affirmed, not rejected or altered. Under SOGI laws, acting on these beliefs in a commercial or educational context could be actionable discrimination. These are the laws that have been used to penalize bakers, florists, photographers, schools, and adoption agencies when they declined to act against their convictions concerning marriage and sexuality. They do not adequately protect religious liberty or freedom of speech.

To the extent that compliance with laws barring discrimination on the basis of gender identity is viewed as a violation of religious conscience, we could well see a repeat of the "Kim Davis saga," this time in the form of school principals and superintendents blocking restroom doors.

Nativity Pageant Challengers May Sue Anonymously

In an order (full text) issued Monday, an Indiana federal magistrate judge allowed two individual plaintiffs in a lawsuit challenging an Indiana high school's Nativity Pageant to proceed anonymously. (See prior related posting.) Plaintiffs asked for the order "because one Doe Plaintiff is a minor, because of the history of violence and intimidation against plaintiffs in other Establishment Clause cases similar to this one, and because there is a reasonable expectation that the Doe Plaintiffs here will be the victims of harassment, injury, and other serious harm if their identities are made public."  Defendants did not object to the order.  The Elkhart Truth reports on the order.

South Africa's Jewish Community Creates Internal Body To Regulate Ritual Circumcision

According to yesterday's Jerusalem Post, South Africa's Jewish community is setting up its own Committee to oversee and regulate the practice of ritual circumcision in the nation.  The Committee will set requirements for circumcisions based on Jewish law and the highest standards of professionalism, health and safety.  The decision by Chief Rabbi Warren Goldstein and the Beth Din (rabbinic court) implements the recommendations of a commission of inquiry set up by the Jewish community after a serious malpractice incident by an elderly mohel last June.  In order to practice, a mohel will need to be accredited by the new committee, and have the accreditation renewed every two years. The country's Chief Rabbi has already imposed a lifetime ban on the mohel whose malpractice triggered the new recommendations.

Plaintiff In Clergy Abuse Case Alleged No Duty Owed To Him By Diocese

In Doe v. Tissera, 2015 Conn. Super. LEXIS 2757 (CT Super., Nov. 3, 2015), a Connecticut trial court held that while the 1st Amendment does not immunize the Hartford Roman Catholic Diocese from liability in connection with clergy sexual abuse claims, nevertheless plaintiff here failed to allege adequate facts to support his negligence and breach of fiduciary duty claims against the Diocese:

Doe's claims ... do not allege a reasonably foreseeable risk of harm giving rise to a duty owed by the diocese to Doe. Without properly alleging that the diocese owed him a duty, Doe has no cause of action against the diocese.

Court Rejects Establishment Clause Challenge To Bladensburg Cross

In American Humanist Association v. Maryland-National Capital Park and Planning Commission, (D MD, Nov. 30, 2015), a Maryland federal district court rejected an Establishment Clause challenge to a 40-foot tall Veteran's Memorial in the shape of a cross. The so-called Bladensburg Cross was erected in 1925 by the American Legion at the intersection of two highways. The original ownership of the land on which it sits was unclear, but the land was eventually transferred to the state.  As Veterans Memorial Park, it is now also surrounded by other monuments. The court concluded that the cross does not have the effect of endorsing religion:

the predominant and nearly exclusive use of the Monument has been for annual commemorative events held on Memorial Day and Veterans Day....  In light of this history and context, of which a reasonable observer would be aware, the Monument "evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles...." The evocation of foreign graves is particularly relevant here because, unlike crosses challenged in other cases, the Monument explicitly memorializes forty-nine servicemen who died in Europe during World War I, and the "cross developed into a central symbol of the American overseas cemetery" during and following World War I....

The Baltimore Sun reports on the decision.

Italian School Head Provokes Controversy By Canceling Christmas Concert In Favor of Winter Musical In January

With Italy's population becoming more religiously diverse, it is now facing the kind of issues regarding Christmas celebration in public schools that have been common in the United States.  Under attack from Italy's Prime Minister, the headmaster of a 1,000 pupil school in the town of Rozzano near Milan has been forced to resign after he canceled the school's traditional Christmas concert in favor of a non-religious Winter Concert in January.  AFP, The Telegraph and Deutsche Welle all reported yesterday on aspects of the story.  Before resigning, Marco Parma, headmaster of the Garofani comprehensive school whose student body is 20% non-Christian, said:

Last year we had a Christmas concert and some parents insisted on having carols. The Muslim children didn't sing, they just stood there, absolutely rigid.  It is not nice watching a child not singing or, worse, being called down from the stage by their parents.

The school's teachers backed the headmaster, but Italian Prime Minister Matteo Renzi was incensed, saying:

Discussion and dialogue does not mean to say we can drown our identity for the sake of a vague and insipid form of political correctness. Italians, both non-religious and Christians, will never give up Christmas.

The head of Italy's anti-immigrant Northern League went further, arguing that "canceling traditions is a favor for terrorists."

Recent Articles and Books of Interest

From SSRN:

• Prakash Shah, Does Durkheim Enhance Our Understanding of Law and Religion?, (Queen Mary School of Law Legal Studies Research Paper No. 212/2015, Nov. 2015).
• Jeffrey M. Hirsch, EEOC v. Abercrombie & Fitch Stores, Inc.: Mistakes, Same-Sex Marriage, and Unintended Consequences, (Texas Law Review, Vol. 94, 2015, Forthcoming).
• Nicholas Aroney, Faith in Public Office: The Meaning, Persistence and Importance of Oaths, (November 23, 2015).
• Lucia Ann Silecchia, Pope Francis and the Vocation of the Lawyer: Reflections on Service and Responsibility, (54 J. of Cath. Legal Stud. 23 (2015)).
• Lewis A. Grossman, Orthodoxy and 'The Other Man's Doxy': Medical Licensing and Medical Freedom in the Gilded Age, (November 19, 2015).
• Susan Frelich Appleton, The Forgotten Family Law of Eisenstadt v. Baird, (Yale Journal of Law & Feminism, Vol. 28:1, 2016).
• Cynthia Godsoe, Marriage Equality and the 'New' Maternalism, (California Law Review Circuit, Vol. 6, No. 145, 2015).
• Jay P. Greene & Cari A. Bogulski, The Effect of Public and Private Schooling on Anti-Semitism, (EDRE Working Paper No. 2015-10, Nov. 2015).
• Abdul Azeez Maruf Olayemi, et. al., Islamic Interbank Money Market: A Comparative Legal Study between Malaysia And Some Notable Jurisdictions, (2015 1 SHR, SHARIAH REPORT, A Journal of Islamic Law, Banking & Finance, Malaysian Current Law Journal (MCLJ)).
• Eric C. Chaffee, Collaboration Theory: A Theory of the Charitable Tax Exempt Nonprofit Corporation, (November 22, 2015).
• UPDATE: Netta Barak Corren, Does Anti-Discrimination Law Influence Religious Behavior?, (Hastings Law Journal, Forthcoming).

Recent Books:

• William Lazarus (with Sid Kleiner), Passover In Prison, (CreateSpace, July 2015).
• Saba Mahmood, Religious Difference in a Secular Age: A Minority Report, (Princeton Univ. Press, Nov. 2015).
• Katherine Franke, Wedlocked: The Perils of Marriage Equality, (NYU Press, Nov. 2015).
• William A. Schabas, The European Convention on Human Rights-- A Commentary, (Oxford Univ. Press, Nov. 2015).

Belgian Court Sentences French Comedian For Anti-Semitic Remarks

Last Wednesday, a Belgian court sentenced French comedian Dieudonne M’bala M’bala to prison for two months, and imposed a fine equivalent to $9,500 (US) on him for his anti-Semitic remarks during a comedy show in Belgium in 2012.  According to The Forward:

Judges said that the remarks, made in front of an audience of 1,100 people in the town of Herstal, were clearly calls to hatred and violence. By calling on Christians and Muslims to unite to kill Jews, he had incited genocide.

He was also ordered to pay for the entire text of the judgment against him to be printed in two leading French-language Belgian newspapers.

Dieudonne has prior convictions in France.  Earlier this month the European Court of Human Rights refused to reverse Dieudonne's conviction in France for Holocaust denial stemming from a different performance. (See prior posting.)

On Retrial Saudi Court Sentences Poet To Death For Apostasy

The Star Daily Standard yesterday reported on a Nov. 17 judgment by a Saudi Arabian court that sentenced Palestinian artist Ashraf Fayadh to death for apostasy, apparently concluding he was spreading atheism.  In his original trial, he was sentenced to 800 lashes and four years in prison on charges that his 2008 Arabic poetry book “Instructions Within” was insulting to God and religion. Also on the basis of photos in his phone, he was charged with illicit relations with women. Prosecutors appealed, seeking a harsher sentence, and the appeals court remanded for a new trial.  At that trial he was sentenced to death. According to the Daily Standard report:

While judges in the initial trial also accepted Fayadh’s repentance for anything deemed offensive or insulting to religion in his book of poetry, judges in the retrial questioned whether repentance can nullify a proscribed punishment in a case involving “hadd”, which in Islam are specific crimes such as apostasy for which punishment is considered fixed. They also wrote that Fayadh’s repentance could only be accepted by the divine, and therefor they could not consider it when weighing the verdict.

It is likely the case will be appealed again.

Recent Prisoner Free Exercise Cases

In Woods v. McClure, 2015 U.S. Dist. LEXIS 158973 (ED TX, Nov. 24, 2015), a Texas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 159291, Sept. 30, 2015) and dismissed a Rastafarian inmate's complaint that he was not permitted to properly celebrate the Rastafarian holy day, the birthday of Haile Selassie.

In Trapp v. Roden, (MA Sup. Jud. Ct., Nov. 23, 2015), the Massachusetts Supreme Judicial Court held that the closure of a Wampanoag Tribal sweat lodge at a Massachusetts prison facility, purportedly because of health concerns over the smoke it produced, violated RLUIPA as well as a 2003 settlement agreement. MassLive reports on the decision.

PennLive reports that on Tuesday, a Middle District of Pennsylvania federal district court judge, in a case on remand from the 3rd Circuit ordered the Pennsylvania Department of Corrections to comply with a June settlement agreement that requires Camp Hill prison authorities to allow Christian inmates 30 minutes of fellowship and group prayer in the dining hall on Christmas after the mainline Christmas dinner has been served and other prisoners have left.

African American Clergy Squabble Publicly Over Planned Endorsements of Donald Trump

As reported by Clutch, the Donald Trump campaign has been widely advertising a meeting on Monday between Trump and a group of well-known Black pastors. The meeting will be televised and streamed online live from the Trump Towers. Apparently a Trump campaign press release said that 100 African American religious leaders will appear with Trump on Monday to endorse him.  On Friday, a group of 114 other Black religious leaders and scholars published an Open Letter in Ebony strongly criticizing those who plan to meet with Trump, saying in part:

[A]s people of God, you know that our theology shapes our politics, and politics are a great indicator of our theology. What theology do you believe Mr. Trump possesses when his politics are so clearly anti-Black? He routinely engages in the kind of rhetoric that brings out the worst sorts of white racist aggression, not only toward Black people, but also toward Mexican-Americans and Muslim-Americans, too. Surely, we can agree that this kind of unloving and violent language does not reflect the politics of the Christ we profess?

In response to all of this, several of the clergy who plan to attend the Monday meeting made it clear that they have not committed to endorsing Trump.  According to the Daily Beast today, Bishop Clarence McClendon whose name leads the list of those advertised as planning to attend, said in a Facebook post:

I am not officially endorsing ANY candidate and when I do you will NOT need to hear it from pulpitting courtjesters who suffer from intellectual and spiritual myopia.

It is not clear that the 100 religious leaders who it was said will endorse Trump Monday are the same ones who are attending the advertised meeting.

Challenge To Gun Store's "Muslim Free Zone" Dismissed For Lack of Imminent Injury

In CAIR Florida, Inc. v. Teotwawki Investments, LLC, (SD FL, Nov. 24, 2015), a Florida federal district court dismissed a religious discrimination suit brought by a Muslim advocacy organization against a gun store and firing range whose owner announced (through a YouTube video) that it was implementing a "Muslim Free Zone."  The suit alleged that the declaration by Florida Gun Supply violates Title II of the 1964 Civil Rights Act which prohibits discrimination in places of public accommodation. (See prior posting.) The court held however that the announcement -- which was seen on national television-- did not threaten imminent harm.  The court agreed with defendant's contention that:

[T]here are no facts demonstrating that Plaintiff was (or will be) unlawfully discriminated against. There are no facts demonstrating that Plaintiff has attempted to purchase a firearm from Defendant and was denied on the basis of its religion or has attempted to attend a gun safety class and was denied on the basis of its religion or attempted to do anything at Defendant’s retail gun store and was denied on the basis of religion. And there are no allegations that Plaintiff will attempt to do any such activities at Defendant’s retail gun store in the future and be unlawfully denied on the basis of religion. Thus, Plaintiff has not alleged facts to demonstrate actual present harm or a significant possibility of future harm as required by Article III.

American Freedom Law Center, which represented defendants, issued a press release announcing the decision. Its press release described the announcement by Florida Gun Supply as a "refusal to equip Islamic terrorists." WND reports on the decision.

European Court Upholds French Hospital's Hijab Ban

The European Court of Human Rights yesterday, in a Chamber Judgment by a panel of 7 judges, upheld the decision of a French hospital to refuse to renew the employment contract of a Muslim social worker who insisted on wearing a headscarf (hijab). The full decision in Ebrahimian v. France, (ECHR, Nov. 26, 2015) is available in French (with a partial dissenting opinion in English). According to the Court's English press release on the decision:

[T]he Court found that the requirement of neutrality of public officials could be regarded as justified in principle: the State, as employer of the applicant in a public hospital, could consider it necessary that she refrain from expressing her religious beliefs in discharging her functions in order to guarantee equality of treatment of patients....  [T]he Court reiterated that while public officials enjoyed total freedom of conscience, they were prohibited from manifesting their religious beliefs in discharging their functions. Such a restriction derived from the principle of the secular nature of the State, and that of the neutrality of public services, principles in respect of which the Court had already approved a strict implementation where a founding principle of the State was involved.

The Court considered that the fact that the national courts had afforded greater weight to the principle of secularism-neutrality and the State’s interest than to Ms Ebrahimian’s interest in not having the expression of her religious beliefs restricted did not cause a problem with regard to the [European] Convention [on Human Rights].

A Chamber Judgment may be appealed to the ECHR Grand Chamber. The Scotsman reports on the decision.  [Thanks to Paul de Mello for the lead.]

Two Popes Impact Delicate International Decisions

Pope Francis yesterday spoke in Narobi, Kenya to a group of  United Nations officials (full text of speech) urging action at two upcoming international conferences. Focusing on COP21, the meeting beginning Nov. 30 in Paris on climate change, the Pope said in part:

In a few days an important meeting on climate change will be held in Paris, where the international community as such will once again confront these issues.  It would be sad, and I dare say even catastrophic, were particular interests to prevail over the common good and lead to manipulating information in order to protect their own plans and projects....

I express my hope that COP21 will achieve a global and “transformational” agreement based on the principles of solidarity, justice, equality and participation; an agreement which targets three complex and interdependent goals: lessening the impact of climate change, fighting poverty and ensuring respect for human dignity.

The Pope also spoke about the upcoming 10th Ministerial Conference of the World Trade Organization scheduled to meet in Narobi in a few days:

It is my hope that the deliberations of the forthcoming Nairobi Conference will not be a simple balancing of conflicting interests, but a genuine service to care of our common home and the integral development of persons, especially those in greatest need.  I would especially like to echo the concern of all those groups engaged in projects of development and health care – including those religious congregations which serve the poor and those most excluded – with regard to agreements on intellectual property and access to medicines and essential health care.  Regional free trade treaties dealing with the protection of intellectual property, particularly in the areas of pharmaceutics and biotechnology, should not only maintain intact the powers already granted to States by multilateral agreements, but should also be a means for ensuring a minimum of health care and access to basic treatment for all.

Meanwhile, Israeli and Arab sources differ on the political importance of a gesture by Egypt's Coptic Pope Tawadros II who yesterday left with a delegation of bishops for Jerusalem to take part in the funeral of Archbishop Anba Abraham, the Archbishop of Jerusalem.  This is the first visit of a Coptic pope to Jerusalem since 1832.  In 1979, the previous Coptic Pope barred Copts from traveling to Jerusalem, insisting they will only enter together with Muslims. The Jerusalem Post speculates that Tawadros' trip will make it increasingly difficult to maintain the ban on other Copts making a pilgrimage to Jerusalem. Zvi Mazel, a former Israeli ambassador to Egypt said that Tawadros probably got approval from Egypt's President Abdel Fattah al-Sisi who is maintaining close intelligence ties with Israel in the fight against ISIL in Sinai.

However, Gulf News quotes a Coptic Church spokesman who said that Tawadros' visit to Jerusalem, which the Church considers occupied territory, does not change the Church's position:

The Pope’s visit came as an exception. It is for offering condolences and nothing more.  Pope Tawadros II will not make any visits in the Holy Land, and he will return to Cairo immediately following the funeral prayers. Copts will only go to Jerusalem with their Muslim brethren.

British Court Says Religious Education Curriculum Must Include Non-Religious Beliefs

As reported by a British Humanist Association press release, a British High Court judge in London held yesterday that non-religious views, such as humanism, must be included in British schools' Religious Education studies.  In Fox v. Secretary of State for Education, (EWHC, Nov. 25, 2015), a judge held:

The Strasbourg jurisprudence shows that the duty of impartiality and neutrality owed by the state do not require equal air-time to be given to all shades of belief or conviction. An RE [Religious Education] syllabus can quite properly reflect the relative importance of different viewpoints within the relevant society. The same would seem to follow for a region or locality. The duty might therefore be described as one of “due” impartiality..... In addition, of course, a generous latitude must be allowed to the decision-maker as to how that works out in practical terms. But the complete exclusion of any study of nonreligious beliefs ... would not in my judgment be compatible with [the European Convention on Human Rights' provisions on the right to education].

Spain's Catholic Lawyers Sue Over Art Exhibit

In Spain, the Spanish Association of Christian Lawyers has filed a lawsuit seeking to close down a controversial art exhibit which opened in Pamplona City Hall last Friday  According to yesterday's The Local, the display-- a retrospective of the works of controversial 27-year old Spanish artist Abel Azcona-- includes a work titled "Amen" which consists of 242 holy wafers spelling out "paedophilia".  Azcona's critics claim that he stole the hosts used in the display by pretending to take Holy Communion, but then pocketing the wafers.  The lawsuit alleges that Azcona committed the crimes of desecration and crimes against religious sentiment under Spain’s Penal Code. On Tuesday evening the communion wafers disappeared as critics staged a protest, and city hall says that part of the display will not be replaced.

President Issues Proclamation for Thanksgiving 2015

Last week President Obama issued a Presidential Proclamation-- Thanksgiving Day 2015. It reads in part:

In the same spirit of togetherness and thanksgiving that inspired the Pilgrims and the Wampanoag, we pay tribute to people of every background and belief who contribute in their own unique ways to our country's story.  Each of us brings our own traditions, cultures, and recipes to this quintessential American holiday -- whether around dinner tables, in soup kitchens, or at home cheering on our favorite sports teams -- but we are all united in appreciation of the bounty of our Nation.  

Amicus Brief Filed In Appeal of Bankruptcy Stay of Jewish Religious Court Proceedings

As previously reported, in August a New York federal bankruptcy court held in the case of In re Congregation Birchos Yosef that the statutory automatic stay of proceedings against a debtor that is triggered by the filing of a petition in a bankruptcy reorganization applies to invalidate proceedings against a debtor and its principals in a Jewish religious court (beis din). That decision was appealed to the federal district court. Last week an interesting amicus brief (full text) was filed in that appeal by 3 well-known law professors and a former bankruptcy court judge urging reversal of the bankruptcy court's decision.  The 23-page brief argues in part:

given the intensely religious nature of the beis din proceeding, and the conceded inability of the beis din to enforce its rulings in any secular court, any effort by a bankruptcy tribunal to restrain the Bais Chinuch and other individuals from invoking the beis din as a parallel non-coercive forum of religious conscience violates the Free Exercise Clause of the First Amendment, the provisions of the Religious Freedom Restoration Act (hereafter RFRA), and the Bankruptcy Code.

[Thanks to Max Raskin for the lead.]

Groups Say Texas Refusal To Accept Syrian Immigrants Infringes Religious Liberty of Resettlement Agencies

In an article yesterday, the New Republic reports that a number of faith-based refugee resettlement groups in Texas believe that the state's Health and Human Services Commission is infringing their religious liberty.  In a Nov. 19 letter, the Commission's Executive Commissioner told resettlement agencies that they should discontinue immediately any plans they have to resettle Syrian refugees in Texas.  This follows a Nov. 16 letter (full text) from Texas Gov. Greg Abbott to President Obama telling the President that Texas will not accept any Syrian refugees out of fear that they could be terrorists. Bee Moorhead, executive director of Texas Impact/Texas Interfaith Center for Public Policy, criticizes the Governor's position, saying:

Religious freedom is now the rhetorical currency of the right, but it’s turning out to be in implementation that what’s politically expedient for the right is not affirmative of religious freedom.

Obama Criticizes Growing Anti-Muslim Sentiment In United States

At his White House press conference yesterday (full text) with President Hollande of France, President Obama again criticized the anti-Muslim sentiment in the United States that has surfaced in the wake of ISIL's attacks in Paris, saying:

... [A]nother part of defeating terrorists like ISIL, is upholding the rights and freedoms that define our two great republics.  That includes freedom of religion.  That includes equality before the law.  There have been times in our history, in moments of fear, when we have failed to uphold our highest ideals, and it has been to our lasting regret.  We must uphold our ideals now.  Each of us, all of us, must show that America is strengthened by people of every faith and every background.