Recent Prisoner Free Exercise Cases

In Harvey v. Gonzalez, 2015 U.S. Dist. LEXIS 172056 (D CO, Dec. 28, 2015), a Colorado federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 172057, Nov. 24, 2015) and permitted a Muslim inmate to move ahead with this complaint that his copy of the Qur'an was confiscated and he was refused a replacement copy.

In Hill v. Gramiak, 2015 U.S. Dist. LEXIS 172150 (SD GA, Dec. 28, 2015), a Georgia federal magistrate judge recommended permitting a Buddhist inmate to move ahead with complaints that the mail room refused to deliver religious literature sent to him, while prisoners of other faiths could receive a Bible or a Qur'an.

In Wagner v. Worsham, 2015 U.S. Dist. LEXIS 172704 (ED MO, Dec. 29, 2015), a Missouri federal district court dismissed a Mormon inmate's complaint that prison authorities classify the Church of Jesus Christ of Latter-day Saints as a General Christian group, instead of giving it a separate category.

In Hoskins v. Red Onion State Prison, 2015 U.S. Dist. LEXIS 173107 (WD VA, Dec. 30, 2015), a Virginia federal district court dismissed an inmate's complaints that there was a delay in delivering religious materials mailed to him, that the prison does not provide Jewish or Messianic Jewish services, and the chaplain did not provide him with a number of religious items he requested.

In Perez v. Watts, 2015 U.S. Dist. LEXIS 173384 (SD GA, Dec. 31, 2015), a Georgia federal magistrate judge recommended allowing an inmate to move ahead (except on certain damage claims) on his complaint that prison authorities truncated the "Spiritual Mass" ceremony for Santeria practitioners by not allowing each individual a half cut cigar, and authorities refused to order Santeria supplies including bead necklaces with Ache.

Fired Police Officer's Free Exercise Rights Not Infringed By Order Not To Associate With Gang Member

In Cuevas v. City of Campbell, (CA App., Dec. 23, 2015), a California appellate court held that the free exercise and expressive association rights of police officer  Sammy Cuevas were not infringed when he was terminated, in part for contact with known gang member Joseph Aguilera-- who had been married to Cuevas' cousin.  Cuevas argued unsuccessfully that because he is the godfather of Aguilera's child and they are both Catholic, the order to not associate violated their right to practice their faith together.

Muslim Employees Walk Out of Meat Packing Plant In Dispute Over Prayer Breaks

Media are reporting this week on the firing of between 150 and 180 Somali Muslim workers at a Cargill meat packing plant in Fort Morgan, Colorado.  Denver 7 News and Minneapolis Star Tribune report that the action grew out of a dispute that developed when a new shift manager told 11 employees that they could not all take a prayer break at the same time. Ten of these workers resigned, and 177 other workers either did not show up, or clocked in and left, the next day in support.  When the protesters did not return or call in for three days they were terminated.  Apparently the parties are still in touch over the possibility of the employees getting their jobs back. [Thanks to Scott Mange for the lead.]

Suit Challenges Requirement of Marriage License For Religious Ceremony

While it might seem that the Supreme Court's Obergefell decision last June mooted the many pending cases seeking to make inroads into now invalid bans on same-sex marriage, the Detroit News reported yesterday on a lawsuit that shows this is not universally so.  A year ago, Detroit minister Neil Patrick Carrick filed a lawsuit in Michigan federal district court challenging two Michigan statutes which at that time effectively fined clergy for performing same-sex marriages. (See prior posting.) MCL Sec. 551.14  imposes a $500 penalty on any member of the clergy or other person who "knowingly joins any persons in marriage" in violation of Michigan law. MCL Sec. 551.106 provides that : "Any clergyman or magistrate who shall join together in marriage parties who have not delivered to him a properly issued license ... shall be adjudged guilty of a misdemeanor" and fined $100 or sentenced to 90 days in jail.

The complaint (full text) in Carrick v. Snyder, (ED MI, filed 1/12/2015). alleged that these provisions violate the 1st Amendment free exercise and expressive association rights of clergy whose faith and religious beliefs allow them to perform marriages that are not authorized by civil law.  In May 2015, the district court entered an order holding the case in abeyance as the Supreme Court considered the issue of same-sex marriage.  In September, after the Supreme Court's Obergefell decision, the district court reactivated the case (Order lifting stay).  While the challenged statutory provisions no longer totally bar same-sex marriages, they still threaten clergy with fines if they "join in marriage" a couple that has not obtained a marriage license.  On December 8, the district court, seeking to avoid the constitutional question, issued an Order (full text) calling for additional briefing on whether these penalties under state law apply to "purely private ceremonies that are not intended to give legal effect to a marriage."

Plaintiff's attorney pointed out the importance of the issue to "elderly or widowed couples who want to marry, but are afraid they will lose their Social Security benefits if they are legally wed."

Wisconsin Lawmaker Stirs Controversy With Proselytizing Christmas Message To Constituents

The Forward reports today on the continuing controversy over the religious video Christmas greeting sent out last month by Wisconsin Assembly member Rep. Scott Allen to his constituents.  The almost 2-minute video was shot by Allen in a state-owned studio in the Capitol building and was sent to constituents through the state e-mail system.  In the video, Allen says in part:

To me and my fellow Christians, celebrating the birth of our Savior, our Emmanuel, well, it is one of the most important celebrations of the year. For those who may watch this who are not Christians, I invite you to consider the hope offered by the Prince of Peace.

American Jewish Committee general counsel Marc Stern says the video clearly crosses the line into proselytizing. Allen says his message was not directed at constituents who held other religious beliefs, but was targeted at those with no belief.

9th Circuit Upholds California AG's Collection of Donors' Names Against "As Applied" Challenge

As previously reported, in June the U.S. 9th Circuit Court of Appeals upheld against a facial challenge California's administrative rule requiring non-profit organizations that wish to solicit tax deductible contributions in the state to file an annual report that includes an unredacted IRS Form 990 Schedule B, the names and contributions of significant donors. The filings are not made public by the state. Now in Americans For Prosperity Foundation v. Harris, (9th Cir., Dec. 29, 2015), the 9th Circuit also rejected an "as-applied" challenge to the California law. This challenge was brought by Americans for Prosperity (a libertarian advocacy group funded in large part by the Koch brothers) and by the Thomas More Law Center  (which describes itself as an advocacy group which "defends and promotes America’s Judeo-Christian heritage and moral values"). According to the court:

First, the plaintiffs have not shown the demand for nonpublic disclosure of their Schedule B forms to the Attorney General has actually chilled protected conduct or would be likely to do so.... Second, the plaintiffs have not shown a “reasonable probability” of harassment at the hands of the state if the Attorney General is permitted to collect their Schedule B forms for nonpublic use.

The 9th Circuit, however, upheld the district court's preliminary injunction barring the California Attorney General from making the Schedule B's public, saying in part:

Because the Attorney General agrees with the plaintiffs that Schedule B information should not be publicly disclosed, and because she is in the process of promulgating a regulation prohibiting such public disclosure, a preliminary injunction prohibiting public disclosure of donor information promotes, rather than undermines, the state’s policy. 

Happy New Year 2016 !

Dear Religion Clause Readers:

Happy New Year 2016!  It is difficult to believe that I have been blogging on Religion Clause for over ten years, and have posted over 18,000 stories.  As I have been reminded, this means that for those who rely on Religion Clause as a resource, there are many who do not remember the time when there was not a central source for keeping current on church-state and religious liberty developments.

Last year was important.  Issues surrounding same-sex marriage and responses to it riveted the attention of much of the U.S. population.  The challenge by religious non-profits to the Obamacare regulations on contraceptive coverage brought to the fore the question of whether courts must give complete deference to assertions by individuals and groups that their religious exercise has been substantially burdened.  The Supreme Court gave unusual attention to civil rights claims by prisoners, including their religious freedom claims.  Increasing concern about ISIS-inspired terrorism tempted some-- including some seeking the highest office in the land-- to question whether America's traditional welcome to all religious believers (and non-believers) is as firmly established as we had once believed.

Religion Clause has attempted to provide the raw materials-- as objectively as possible-- so that readers can make informed judgments on the difficult policy decisions facing us.  And I have continued to cover parallel issues arising outside the United States in order to give additional perspective.

2016 promises to be an equally challenging year.  Many of the high profile issues of last year will remain with us.  In addition there will likely be some new ones.  How will religion factor into the Presidential race?  What are the implications of establishment clause and free exercise clashes being increasingly handled by well-funded advocacy groups that are repeat players before the courts, legislatures and local government officials?  Will transgender rights be the next battle in the culture wars that will become a religious as well as a civil rights issue?

And then there is often a "sleeper"-- an issue that becomes unexpectedly dominant.  My nomination for that in 2016 is the question of whether the retirement plans of many religiously-affiliated healthcare organizations will, as the 3rd Circuit recently held, be found not to qualify for the "church plan" exemption from ERISA on which they have relied.  Many of these plans will be underfunded by tens or hundreds of millions of dollars if they are required to comply with ERISA.  What kind of financial risk will that pose to them?  Many of these healthcare organizations have complicated relationships with a diocese or other church body of their denomination.  Will liability for underfunding, or for non-compliance with other ERISA requirements, jeopardize assets of the affiliated church bodies?

As we enter 2016, I want to again thank all of you who read Religion Clause-- both long-time followers and those who have discovered the blog more recently. Religion Clause's established format of neutrality, broad coverage and links to extensive primary source material has produced a loyal readership.  Often Religion Clause carries a story well before mainstream media feature it. The world of social media continues to evolve.  Increasing numbers of readers follow Religion Clause on Twitter or Facebook, and perhaps in other ways as well.  Meanwhile, the ability to comment on postings, while available, apparently has little attraction to readers-- other than the occasional spammer who evades my anti-spam efforts.  I am always eager to receive suggestions of other formats that would be useful.

And thanks to all of you who send me leads or corrections. Your input is important in maintaining completeness and accuracy. I read all of your e-mails and comments and appreciate receiving them, even though time constraints often prevent me from replying individually. Normally when I blog on a story sent to me by a reader, I mention the sender. If you do not want to be mentioned, I will be happy to honor that request if you let me know when sending me information.

I continue to be pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, clergy, governmental agency personnel, and others working professionally dealing with church-state relations and religious liberty concerns.  I encourage you to recommend Religion Clause to colleagues and friends who might find it of interest.

Finally, I remind you that the Religion Clause sidebar contains links to a wealth of resources.  If you find broken links on the sidebar, please let me know.

Best wishes for 2016!  Feel free to contact me by e-mail (religionclause@gmail.com) or through comments to this or other posts throughout the year.

Howard M. Friedman

New Mexico Supreme Court Files Amended Opinion Again Striking Down Textbook Loan Program

Last week, the New Mexico Supreme Court denied a motion for a rehearing in its recent Blaine Amendment decision (see prior posting) invalidating the state statute that provides for the loan of secular textbooks to private and parochial school students, but substituted a new opinion for the one handed down last month. The primary change in its new opinion in Moses v. Skandera, (NM Sup. Ct., Dec. 23, 2015), is the addition of paragraphs 28 and 29 rejecting the argument that since funding for the textbook program comes from payments to the state under the federal Mineral Lands Leasing Act, this preempts state constitutional limits.  The court said in part:

The MLLA has neither expressly nor impliedly preempted the application of Article XII, Section 3 because restricting funds appropriated for educational purposes to public schools is not incompatible with the purposes announced in the MLLA. Thus, Intervenors’ argument that funds from the MLLA that are used for the Instructional Material Fund are federal funds which are “not subject to state constitutional limitations” is without merit.

Poll On Attitudes Toward Religious Liberty

AP reported yesterday on the release of a new AP-NORC poll that shows Americans do not value religious liberty equally for all religious groups:

Solid majorities said it was extremely or very important for the U.S. to uphold religious freedom in general. However, the percentages varied dramatically when respondents were asked about specific faith traditions, according to a poll by The Associated Press and the NORC Center for Public Affairs Research.

Eighty-two percent said religious liberty protections were important for Christians, compared with 61 percent who said the same for Muslims. About seven in 10 said preserving Jews' religious freedom was important, while 67 percent said so of Mormons. People who identified with no religion were ranked about even with Muslims in needing support to live out their beliefs.

Malaysia Court of Appeal Says Civil Courts Have No Jurisdiction Over Religious Conversions

Malaysia Insider reports that yesterday in a 2-1 decision, Malaysia's Court of Appeal held that civil courts have no jurisdiction to void a contested conversion of three children to Islam. Only Shariah courts have jurisdiction. The Ipoh High Court (a civil court) had held that the conversion certificate entered by the Registrar of Conversion did not comply with Perak Shariah law because the conversion application was made unilaterally by the children's father, instead of by the children with the father's consent.  The children's mother, now divorced from the father, has also been battling with the father over custody of the children.

3rd Circuit Holds Catholic Healthcare Retirement Plan Is Not Exempt From ERISA

In a decision that could have major financial implications for religiously affiliated hospitals and healthcare systems, the U.S. 3rd Circuit Court of Appeals yesterday gave the first appellate level victory to employees who, in a series of cases, are claiming that various healthcare system retirement plans do not qualify for the "church plan" exemption from ERISA.  In Kaplan v. St. Peters Healthcare System, (3d Cir., Dec. 29, 2015), the court read the definitional provisions in the statute literally and held that to qualify as a "church plan," the retirement plan, while it may be "maintained" by the religiously-affiliated healthcare system whose employees are covered, must have been "established" by a church or convention or association of churches.  Since St. Peters' plan was created by the healthcare system, and not by the Catholic diocese, it does not qualify.  In so holding, the court refused to give deference to IRS determination that St. Peters' and plans like it are "church plans."  Without the exemption, the plan is subject to the fiduciary and funding requirements of ERISA.  As of 2014, St. Peters Healthcare retirement plan was underfunded by $30 million. Pensions & Investments reports on the decision.

Israeli Court Avoids Decision on Definition of Prayer on Temple Mount

In Israel on Monday, a Jerusalem district court reversed the order of a Magistrate's Court that had barred right-wing Jewish activist Yehuda Etzion from visiting the Temple Mount compound for 15 days. Haaretz and a press release from Honenu report on developments.  Etzion is founder of Hai VeKayam, a group that advocates allowing Jewish prayer on the Temple Mount where Muslim holy sites are located. Agreements between Israel, the Palestinians and Jordan call for maintaining the "status quo" at the Temple Mount site-- which means no Jewish prayer there.  On Dec. 22, authorities detained Etzion for walking on the Temple Mount with his arms raised, concluding that this violated the status quo.  On appeal, District Court judge Ram Vinograd said he did not need to definitively rule on the definition of an act of prayer since there was not fair warning to Etzion that police had changed their past interpretations to now ban raised arms.  During an earlier visit, police had not stopped Etzion from similar action. The judge commented on the problem of line drawing-- would merely lifting one's eyes upwards, or covering one's head, be enough to violate the prayer ban.

Etzion, obviously pushing the envelope, after the appeals court ruling described his action on the Temple Mount as follows:

With this act I sought to express a connection with the Temple Mount and the One who resides there, and I kept in my memory also the prayer of King Solomon, who spread his palms upwards. 

Bakery Owners Pay Judgment To Pursue Appeal In Same-Sex Wedding Cake Case

The Willamette Week reported Monday that the Oregon bakery that had been ordered by the state Bureau of Labor and Industries to pay $135,000 in damages for refusing to bake a cake for a same-sex commitment ceremony, in order to appeal the ruling, paid the judgment (plus interest) on Monday. The owners of Sweet Cakes by Melissa decided to pay the $136,927 now due, instead of securing an appeal bond for the amount of the judgment. (See prior related posting.)  Supporters of the bakery owners have contributed at least $517,000 to them through crowdsourcing websites.

Suit Challenges Virginia School's Addition of Gender Identity To Non-Discrimination Rules

As reported by the Washington Post, last week a suit was filed in state court in Virginia challenging the Fairfax County School Board's addition of "gender identity" to its non-discrimination policy.  The change was made to comply with federal interpretation of Title IX of the 1964 Civil Rights Act.  The complaint (full text) (Liberty Counsel press release) in Lafferty v. School Board of Fairfax County, (VA Cir. Ct., filed 12/21/2015), contends that the change violates a Virginia statute that prohibits local jurisdictions from enacting broader anti-discrimination protections than are accorded by state law. A state Attorney General's Opinion, however, had concluded that school boards do have the power to bar discrimination on the basis of sexual orientation and gender identity.

The suit was brought by the head of the Traditional Values Coalition and by an anonymous high school student identified in the complaint as Jack Doe.  The suit contends:

Because the new policy and code of conduct are not sufficiently defined, Jack Doe has no way of knowing whether he can, for example, question someone who appears to be a girl using the boys’ restroom or locker room, refer to someone by a certain pronoun or even compliment someone on his/her attire without being subject to discipline for “discrimination.”...

Jack Doe is terrified of the thought of having to share intimate spaces with students who have the physical features of a girl, seeing such conduct as an invasion of his privacy, invasion of fellow students’ privacy and a violation of the though[t] patterns and understanding about male and female relationships which are part of his cultural values. 

Second Lawsuit Challenges Exclusion of Parochial Schools From Montana Tax Credit Plan

As previously reported, earlier this month a state court lawsuit was filed in Montana challenging an administrative rule that excludes religiously affiliated schools from participating in the state's new law that provides state income tax credits for contributions to student scholarship organizations.  This week a second challenge was filed, this time a lawsuit in federal court brought by parents and by the Association of Christian Schools International. (Pacific Legal Foundation press release.) The complaint (full text) in Armstrong v. Kadas, (D MT, filed 12/28/2015), alleges that enforcement of the administrative rule violates the U.S. Constitution's establishment, free exercise and equal protection clauses, as well as Montana law. Great Falls Tribune reports on the lawsuit.

Priest Charging Injury From False Accusations May Proceed With Most of His Claims

This week, a Missouri federal district court handed down two decisions in a suit by a Catholic priest who claims he has been falsely accused of child sexual abuse.  According to the court:

Plaintiff Reverend Xiu Hui “Joseph” Jiang is a Chinese-born ordained Catholic priest in the Archdiocese of St. Louis. Jiang asserts that ... A.M. and N.M. falsely accused him of sexually abusing their minor son for the purpose of monetary gain. Jiang also asserts that [two] officers of the St. Louis Metropolitan Police Department, conducted an inadequate investigation of the abuse allegations and targeted plaintiff for prosecution because of his religion and ethnicity. He alleges that [the City] ... failed to properly train the officers.... Jiang further asserts that ... Survivors Network of Those Abused by Priests ... led a public smear campaign against him which included making false accusations of child molestation in the media. The criminal case against Jiang ... was voluntarily dismissed shortly before trial....

According to the complaint ... had they conducted a more thorough investigation, they would have learned that the minor child had made unfounded claims of sexual abuse in the past and that he was mentally and emotionally troubled; that defendants A.M. and N.M. had a history of making unfounded allegations against the Catholic Church for financial gain; and that there were circumstances that made it impossible for plaintiff to have committed the abuse as alleged.

In Jiang v. Porter I, (ED MO, Dec. 28, 2015), the court denied SNAP's motion to dismiss the conspiracy, defamation and infliction of emotional distress claims against it, and concluded that the lawsuit is not covered by Missouri's anti-SLAPP statute.

In Jiang v. Porter II, (ED MO, Dec. 28, 2015), the court dismissed the vicarious liability,  unconstitutional policy and practice, failure to train and supervise, and infliction of emotional distress claims against the City of St. Louis.  However the court refused to dismiss equal protection, due process, abuse of process, infliction of emotional distress and civil rights conspiracy claims against two police officers.

Story of Justice McReynolds' Anti-Semitic Photo Refusal Is Debunked

National Law Journal reported yesterday that research by a staffer in the U.S. Supreme Court curator's office has proven false an often-repeated story that no 1924 photograph of Supreme Court justices was taken because the anti-Semitic Justice James McReynolds' would not sit next to Justice Louis Brandeis for the photo.  It turns out that group photos are taken only when a new justice comes onto the court, which was not the case in 1924.  It was the case however that one photo studio that was passed over for the 1923 photo lobbied Chief Justice Taft for an extra photo in 1924, and McReynolds (known for his disagreeable temperament) balked at the idea.  McReynolds does appear in nine other group photos between 1914 and 1941 with Jewish justices, though never next to them because the tradition of seating-by-seniority did not place him there.

UK's Department of Education Clarifies Religious Education Requirements

Britain's Department of Education yesterday issued a Guidance Note (full text) assuring schools that their Religious Education curriculum does not need to change in response to a court decision (see prior posting) last month holding that schools cannot completely exclude the study of non-religious beliefs. According to the Department, the decision does not mean that equal time must be given to teachings of humanism. Schools can continue to give precedence to the teachings of major faith groups, and the curriculum of non-religiously affiliated schools must "reflect the fact that the religious traditions in Great Britain are, in the main, Christian whilst taking account of the teaching and practices of the other principal religions represented in Great Britain."

ISIS Fatwas Cover Topics Including Slavery of Infidels and Harvesting of Organs From Apostates

Reuters reported yesterday that among the documents seized from ISIS by U.S. Special Forces in a raid in Syria in May are a number of fatwas (religious rulings) on issues such as the rape of female prisoners, treatment of slaves with minor children, and when a son may steal from his father to for travel funds to fight jihad.  A booklet dated October 2014 and titled From Creator’s Rulings on Capturing Prisoners and Enslavement discusses rules on enslaving women captured from defeated infidels. These are in addition to the ISIS fatwa (full text) reported on last week by Reuters that approves the harvesting of human organs from apostates for transplantation into Muslims.

UPDATE: Here is the full text of the fatwa on sexual intercourse with captured infidel women who are taken as slaves.

Recent Articles of Interest

From SSRN:

• John Witte, 'To Serve Right and to Fight Wrong': Why Religion, Human Rights, and Human Dignity Need Each Other, (Marta Cartabia and Andrea Simoncini, eds., Pope Benedict XVI’s Legal Speeches in Comparative Perspective (Cambridge University Press, 2015), 106-122).
• Alessandro Spina, Reflections on Science, Technology and Risk Regulation in Pope Francis’ Encyclical Letter Laudato Si’, (European Journal of Risk Regulation 4/2015).
• Piro Rexhepi, Mainstreaming Islamophobia: The Politics of European Enlargement and the Balkan Crime-Terror Nexus, (East European Quarterly, vol. 43, no. 2-3, 2015, pp. 189-214).
• Elizabeth Shakman Hurd, Expert Religion: The Politics of Religious Difference in an Age of Freedom and Terror, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2015/97).
• Rachel Nadelman, 'Let Us Care for Everyone's Home': The Catholic Church's Role in Keeping Gold Mining out of El Salvador, (CLALS Working Paper Series No. 9, Dec. 2015).
• Nelson Tebbe & Paul Horwitz, Religious Institutionalism — Why Now?, (Brooklyn Law School, Legal Studies Paper No. 429, Dec. 2015).
• D.E. Frydrychowski, A Critique of Blackstone's Praemunire, (December 21, 2015).
• Bernard Jackson, Law and Narrative in the Book of Ruth: A Syntagmatic Reading, (December 20, 2015).
• David M. Shapiro, To Seek a Newer World: Prisoners’ Rights at the Frontier, (Northwestern Public Law Research Paper No. 15-48 (Dec. 2015)).
• Robert W. Emerson & Jason R. Parnell, Franchise Hostages: Fast Food, God, and Politics, (Journal of Law and Politics, Vol. 29, No. 353, p. 353-396, 2014).
• Martha Bailey, The Marriage Law of Jane Austen's World, (Persuasions On-line, V.36, No.1 (Winter 2015)).

Suit Challenges Religious Impact on Public School's Curriculum

A lawsuit brought in a Florida state court last month on behalf of a 5th grader by the student's father attacks the way in which a Florida school district teaches about religion and the way in which it allows religion to impact its secular curriculum, including teaching about evolution. The complaint (full text) in Silver v. School Board of Palm Beach County, Florida, (FL Cir. Ct., filed 11/24/2015), contends that textbooks "provide false, misleading, and dangerous information about certain religions, and purposely omit factual information if it appears unfavorable to them and/or politically incorrect.... "  It goes on to allege that "the danger of fundamentalist religion is often obscured and downplayed due to the failure of Defendant School Board to properly monitor its textbooks, and the efforts of fundamentalist religious believers to impose their un-scientific, irrational beliefs such as creationism, which masquerades as science upon the children of this state and county." The lawsuit also contends that the curriculum inaccurately portrays Islam as a peaceful religion, and that schools teach "terrible lies about Jews as if they were historical fact." WPFB reported on the lawsuit in a Dec. 16 posting.

The complaint contends that the school district's practices violate various statutory and state constitutional provisions on education, as well as the 1st Amendment's free exercise and establishment clauses. [Thanks to Scott Mange and Ed Brayton for information on the case.]

Recent Prisoner Free Exercise Cases

In Smith v. Artus, 2015 U.S. Dist. LEXIS 170473 (ND NY, Dec. 22, 2015), a New York federal district court refused to dismiss a Muslim inmate's claim for injunctive and declaratory relief against the prison's ban on engaging in demonstrative prayer in the prison yard during recreation period.

In Chesser v. Director, Federal Bureau of Prisons, 2015 U.S. Dist. LEXIS 170661 (D CO, Dec. 22, 2015), a Colorado federal district court allowed a Muslim inmate to move ahead with his claims that the prison policy of housing Muslims with ties to terrorism in long term solitary confinement solely because of these ties violates RFRA and that his conditions of confinement violate RFRA.

In Williams v. Valazair, 2015 U.S. Dist. LEXIS 171559 (WD OK, Dec. 22, 2015), an Oklahoma federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 171325, Nov. 9, 2015) and dismissed a Muslim inmate's complaint that he was denied a common fare meal tray during a 4-day time span, apparently because the list had not been updated to include him.

Top Ten Religious Liberty and Church-State Developments of 2015

Each year in December I attempt to pick the most important church-state and religious liberty developments of the past year.  This year was rich with possibilities, and some of my picks actually arose in a broader context but have will have an important impact on religious liberty claims or church-state challenges.  So here are my Top Ten picks.  I welcome readers' comments since I am sure that not everyone will agree with all the choices.

1. In Obergefell v. Hodges, the U.S. Supreme Court holds that the Constitution requires marriage equality, striking down state laws that bar same-sex marriages.
   
   
2. The battle continues over the adequacy of the Obama administration's accommodation for religious non-profits that object to the Affordable Care Act contraceptive coverage mandate. The U.S. Supreme Court will decide the issue this term after granting certiorari in seven cases.
   
   
3. Some states expand RFRA laws to protect objectors to same-sex marriage. Indiana's law provokes particular controversy forcing the legislature to backtrack. Meanwhile around the country some Christian-owned businesses continue to refuse to provide services they see as furthering same sex marriage or LGBT rights, while Kentucky county clerk Kim Davis garners national attention for her refusal to issue same-sex marriage licenses.
   
   
4. The U.S. Supreme Court becomes active on prisoners' rights issues, including claims for religious accommodation by inmates.  The Supreme Court gives RLUIPA a broad interpretation in Holt v. Hobbs.  It also interprets the "three strikes" provision that limits indigent prisoner litigation; hears oral arguments in a case on maximum fee payments by indigent prisoners litigating multiple cases; and grants certiorari on a question of exhausting administrative remedies before suing.
   
   
5. The rise of ISIL creates questions about the proper label to apply to the struggle against jihadists.  The dispute centers over the use of terminology such as "the war against radical Islam" that could be misinterpreted to suggest the U.S. is broadly at war with all Muslims.
   
   
6. The Supreme Court interprets the elements of Title VII employment discrimination claims (including claims for accommodation of religious practices) in Abercrombie & Fitch (employer motives) and Mach Mining (EEOC conciliation requirement).
   
   
7. The expression of virulent anti-Muslim sentiment raises free speech and anti-discrimination issues in cases involving anti-Muslim bus ads and a business seeking to create a "Muslim free zone."
   
   
8. The EEOC rules that discrimination on basis of sexual orientation is barred by the "sex discrimination" ban in Title VII of the 1964 Civil Rights Act.
   
   
9. The Supreme Court holds that specialty license plates  are government speech, thus impacting the many cases on license plates with religious themes or symbols.
   
   
10. The successful referendum to overturn Houston's Equal Rights Ordinance positions the battle over transgender rights as next struggle between conservative religious groups and civil rights advocates.

Ecclesiastical Abstention Does Not Require Dismissal of Suit Over Control of Unification Church's Assets

In Family Federation for World Peace and Unification International v. Moon, (DC App., Dec. 24, 2015), the District of Columbia Court of Appeals reversed the D.C. Superior Court's dismissal of a complicated dispute over control of a D.C. non-profit corporation, UCI, which over the years has managed hundreds of millions of dollars of assets donated to Reverend Sun Myung Moon's Unification Church. The trial court had invoked the ecclesiastical abstention doctrine, concluding that the dispute could not be resolved without the court deciding questions of religious doctrines.  The appellate court disagreed.

UCI was created in 1977.  In 2006, Preston Moon, one of Rev. Moon's sons became president of UCI and one of its five directors. In 2008, Rev. Moon appointed another son, Sean Moon, (Preston's younger brother) as the next leader of the Church's worldwide religious organization.  This "disappointed" Preston who, apparently assumed that he would be appointed to the religious as well as financial leadership of the Church.  In response to Sean's appointment, Preston took a number of steps to divest the Church of its control over UCI and its assets.

Those actions are challenged in this case by three entities connected with the original Unification Church and by two individuals who Preston removed as directors of UCI. The suit claims that Preston improperly took control of UCI's board, ignoring the long-standing practice of electing individuals nominated by Rev. Moon. The suit also alleges diversion of assets and self-dealing.  In reversing the trial court's dismissal of the case, the court said in part:

From plaintiffs’ allegations, it appears that a profound alteration in the corporation ... occurred under Preston Moon. An organization plainly established to promote the preservation of African wildlife and acquiring vast funds on that basis might well be barred from switching its purpose to expenditures on domestic cats and dogs regardless of how technically such a switch might be read into the text of its articles of incorporation. On the present record, we cannot say with confidence that a somewhat analogous transformation cannot be shown to have occurred here. And, in any event, the allegation that corporate funds were used here to benefit one of the directors personally would appear readily subject to court review....

[W]e agree with plaintiffs that the record at this early stage of a difficult and complicated dispute with many ramifications does not support a conclusion that the trial court must engage in inquiry banned by the First Amendment in order to resolve any of plaintiffs’ claims.... Were we to hold that, based on the current record, the First Amendment precludes our civil courts from adjudicating plaintiffs’ claims, then it would approach granting immunity to “every nonprofit corporation with a religious purpose from breach of fiduciary suits . . . and prevent any scrutiny of questionable transactions.”

The court also resolved jurisdictional and standing issues.

Donald Trump's Christmas Card Covers All Bases

The New York Daily News reports that the Christmas card which Donald Trump mailed to his supporters this week covered all the bases after his campaign emphasis on the need to say Merry Christmas instead of "Happy Holidays."

From the White House For Christmas: Playlists and Concern For Persecuted Christians

On Wednesday, in anticipation of Christmas, the White House posted The Obamas' and Bidens' Holiday Playlists on the White House Spotify channel.  The Obamas' number one pick is "O Tannenbaum, Vince Guaraldi Trio (A Charlie Brown Christmas)," while "Santa Claus is Comin’ to Town, Bruce Springsteen" tops the Bidens' playlist.

The President also posted a more serious statement on Persecuted Christians at Christmas, saying in part:

At this time, those of us fortunate enough to live in countries that honor the birthright of all people to practice their faith freely give thanks for that blessing.  Michelle and I are also ever-mindful that many of our fellow Christians do not enjoy that right, and hold especially close to our hearts and minds those who have been driven from their ancient homelands by unspeakable violence and persecution.

In some areas of the Middle East where church bells have rung for centuries on Christmas Day, this year they will be silent; this silence bears tragic witness to the brutal atrocities committed against these communities by ISIL.

NYC Taxi Appeals Unit Says Religious Belief of Driver Does Not Justify Gender Discrimiination

Triggered by a New York Post article, a number of media outlets last week reported on a Sept. 3, 2015 decision of the New York City OATH Taxi and Limousine Tribunal Appeals Unit.  In Taxi & Limousine Commission v. Tamsir Drammeh , the Appeals Unit upheld a hearing officer's decision that a Muslim cab driver violated a Commission rule prohibiting any action that is "against the best interest of the public" when he refused to transport a female passenger in the front seat of his cab for religious reasons. When a family of four hailed the cab, the driver told them that all four could sit in back, or the husband could sit in front, but the wife could not. The Hearing Examiner concluded: "That his religion did not allow him to sit next to a woman is not an acceptable defense in an occupation that is operated to serve the public." Affirming that decision, the Appeals Unit stated:

There is strong public policy which prohibits a TLC licensee from engaging in “invidious discrimination while serving the public” .... In addition, it is well established that a taxicab driver is required to possess sufficient self-restraint to deal in a mature fashion with the everyday conflicts inherent in his job.... This includes a situation where the driver’s religious beliefs may conflict with his obligations and duties as a taxi driver to transport members of the public.

Here, the respondent’s determination that it would be proper for the passenger’s husband to sit in the front seat, but not proper for the passenger to do so solely because of her gender, evidenced a discriminatory attitude and constituted an action against the best interests of the public.

The cabbie was fined $350 and suspended for one day.

Illinois Nuns Sue To Challenge Zoning Denial

A federal lawsuit was filed last week by an order of Catholic nuns to challenge the denial of a conditional use permit by McHenry County, Illinois. Fraternité Notre Dame already has a monastery, church, seminary, convent, retreat center, bakery, printing press and cemetery on its 95 acres of property. It now wants to add a barn in order to build a commercial kitchen, process grapes and brew beer.  It also wants to add a school with attached dormitory; nursing home with hospice services; and gift shop and tasting area to sell pastries, religious and inspirational articles, and its own wine and beer. The complaint (full text) in Fraternité Notre Dame, Inc. v. County of McHenry, (ND IL, filed 12/16/2015), contends that the denial of zoning approval violates RLUIPA as well as the equal protection clauses of the Illinois and federal constitutions.  Northwest Herald reports on the lawsuit.

Proposed Bill In New Mexico Would Amend RFRA To Protect Religiously- Based LGBT Discrimination

While New Mexico already has a Religious Freedom Restoration Act, last week two legislators pre-filed a bill for the new session that would expand the state's RFRA to permit businesses to refuse to conduct business with gay, lesbian and transgender individuals where the business has religious objections to doing so. Think Progress reports that the new House Bill 55, while prohibiting businesses from using religion to justify racial or gender discrimination, does not prohibit using religion to justify LGBT discrimination.  The Bill provides:

Nothing contained in the Human Rights Act shall ... burden a person's free exercise of religion by requiring the person to provide a service or to conduct business in a manner inconsistent with adherence to that person's sincerely held religious belief unless that adherence is based on race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition. 

Pennsylvania Appeals Court Orders New Trial For Msgr. Lynn On Priest Abuse Cover-Up

In Commonwealth of Pennsylvania v. Lynn, (PA Super. Ct., Dec. 22, 2015), in a 2-1 decision, a Pennsylvania state appeals court vacated the 2012 conviction of Msgr. William J. Lynn who was the first U.S. priest criminally convicted of covering up sexual molestation of minors by another priest. (See prior posting.) The case was remanded for a new trial.  In the case, which was already on remand from the state Supreme Court (see prior posting), the majority concluded that while prior bad acts can be introduced into evidence to show elements such as knowledge, motive and intent relating to the crimes charged, here the introduction of evidence relating to Lynn's handling of complaints against 21 priests in addition to the two priests whose actions Lynn was charged with covering up went too far.  The majority said in part:

The potential for this evidence to unfairly prejudice Appellant was high, both because it involved the sexually abusive acts of numerous priests committed against children over several decades, and because of the high volume of the evidence admitted. Therefore, we conclude that the probative value of that evidence, in toto, did not outweigh its potential for unfair prejudice, and that this potential prejudice was not overcome by the trial court’s cautionary instructions.

Judge Donohue filed a dissenting opinion, saying in part:

The record supports a finding that both Lynn and his predecessors handled prior allegations of sexual abuse against other priests with the motive and intent of shielding the Church from scandal. Thus, there is support for the conclusion that the way Lynn handled the allegations of abuse made against Avery and Brennan “grew out of” and was “caused by” the way Lynn’s predecessors and Lynn himself handled past allegations of sexual abuse committed by other priests.

Philadelphia Inquirer reports on the decision. [Thanks to How Appealing for the lead.]

Suit Challenges Maine's Restriction On Loud Preaching Outside of Abortion Clinic

In Portland, Maine this week, a Christian pastor filed suit in federal district court challenging the constitutionality of a Maine statute designed to protect abortion facilities.  The law essentially prohibits demonstrating outside an abortion clinic with noise loud enough to be heard inside.  The complaint (full text) in March v. Mills, (D ME, filed 12/21/2015), contends that the statute violates plaintiff's 1st and 14th Amendment rights by targeting his religious, Christian, Pro-Life messages. He alleges in part:

Plaintiff considers it his vocation to encourage women to avoid the sin of abortion and to help them repent from their previous sins.... Plaintiff preaches outside of the abortion facility in order to better reach these women and to give women a last-chance alternative to their life-ending decision.

The suit claims that the restriction on his speech is a content-based prior restraint.  Thomas More Law Center issued a press release announcing the filing of the suit.

FFRF's Secular Nativity Display Removed From Texas Capitol After It Provokes Ire of Governor

The Texas State Preservation Board has a policy that allows displays in public areas of the Capitol upon filing of an appropriate application and a letter of sponsorship from the governor, lieutenant governor or a member of the state legislature.  Receiving approval of its application, on December 18 the Freedom From Religion Foundation put up a Bill of Rights Nativity display which it describes as:

featur[ing] Founding Fathers Benjamin Franklin, Thomas Jefferson, and George Washington gathered in reverence before the Bill of Rights, overseen by the Statue of Liberty. In addition to the "nativity," the display also features a sign celebrating the Winter Solstice.

However, three days later the exhibit was removed after Governor Greg Abbott expressed strong opposition to it.  In a letter (full text) to the Executive Director of the State Preservation Board, the governor (who is Chairman of the Board) contended that the display did not meet the requirement that approved displays promote a "public purpose."  He wrote in part:

[T]he exhibit deliberately mocks Christians and Christianity. The Biblical scene of the newly born Jesus Christ lying in a manger in Bethlehem lies at the very heart of the Christian faith. Subjecting an image held sacred by millions of Texans to the Foundation’s tasteless sarcasm does nothing to promote morals and the general welfare. To the contrary, the Foundation’s spiteful message is intentionally designed to belittle and offend....

This is not an exhibit that spreads a secular message in an effort to educate the public about nonreligious viewpoints; it instead denigrates religious views held by others.... [T]he exhibit promotes ignorance and falsehood insofar as it suggests that George Washington, Benjamin Franklin, and Thomas Jefferson worshipped (or would worship) the bill of rights in the place of Jesus.

Kentucky's New Governor Eliminates County Clerks' Names From Marriage License Forms

Kentucky's new Republican governor, Matt Bevin, fulfilled a campaign promise yesterday (press release) by issuing Executive Order 2015-048 instructing the Kentucky Department for Libraries and Archives to distribute to all County Clerks a marriage license form that no longer includes the name of the County Clerk on it. Instead the form merely calls for the name and title of the issuing official-- who might be a deputy clerk.  The change was in response to the widely-followed resistance of Rowan County Clerk Kim Davis who refused on religious grounds to allow her office to authorize same-sex marriage licenses. (See prior posting.) In a press release, Liberty Counsel call the new form "a clear, simple accommodation on behalf of Kim Davis and all Kentucky clerks."

Court Invokes Ecclesiastical Abstention To Dismiss Church Members' Claims of Financial Mismanagement

In Harrison v. Bishop, (OH App., Dec. 18, 2015), an Ohio appellate court applied the ecclesiastical abstention doctrine to dismiss a suit brought by three members of the Mt. Pilgrim Baptist Church against directors and the senior pastor of the church.  The plaintiffs claimed that defendants breached their duties under the church's constitution by mismanaging the church's finances, wrongfully withholding financial statements and refusing to permit members to examine the church's books and records. The court said in part:

Appellants cite select provisions in the Constitution that they allege give rise to appellees’ duties....  While it is true that the Constitution contains apparently secular provisions, we cannot view those provisions in isolation, thereby ignoring the ecclesiastical content that is found throughout the document. In view of the patently religious nature of the church’s Constitution, we find that reliance upon provisions within the Constitution for determination of the rights and responsibilities of the parties in this case, under auspices of “neutral principles of law,” would necessarily entangle the trial court in ecclesiastical issues over which the court has no subject matter jurisdiction under the First and Fourteenth Amendments....

Further, we find that appellants, in filing this action, are essentially seeking to utilize the power of the civil courts to institute the termination and replacement of the church’s leadership.

New Zealand Approves Pastafarians To Perform Marriage Ceremonies

A Notice published in the Dec. 10 New Zealand Government Gazette approved the Church of the Flying Spaghetti Monster as an organization that qualifies under Sec. 9 of the Marriage Act 1955 to nominate persons to solemnize marriages.  To qualify under the statute, "one of the principal objects of the organisation" must be "to uphold or promote religious beliefs or philosophical or humanitarian convictions." The Freethinker reports on the decision to allow the group, whose followers are known as "Pastafarians" to perform wedding ceremonies. [Thanks to Paul de Mello for the lead.]

Two District Courts Refuse To Enjoin California's Reproductive FACT Act

In recent days, two separate California federal district courts have refused to enjoin the Jan. 1 effectiveness of California's new 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. In Livingwell Medical Clinic, Inc. v. Harris, (ND CA, Dec. 18, 2015), the court denied a preliminary injunction, finding that plaintiffs had not shown a likelihood of success on the merits of their claim that the required disclosures violate their free expression rights by interfering with their ability to control their own religious and pro-life messages. In A Woman's Friend Pregnancy Resource Clinic v. Harris, (ED CA, Dec. 21, 2015), the court similarly rejected free expression and free exercise claims in denying a preliminary injunction. In rejecting the free exercise claim, the court found that the Act is a neutral law of general applicability even though it mostly impacts Christian-belief based crisis pregnancy centers. Courthouse News Service reports on the decisions.

European Court Says Switzerland Need Not Recognize Underage Religious Marriage of Afghan Nationals

In Z.H. and R.H. v. Switzerland, (ECHR, Dec. 8, 2015), the European Court of Human Rights in a Chamber Judgment held that Switzerland was not required for asylum purposes to recognize the religious marriage between first cousins, entered when the bride was only 14 years old.  The religious marriage between the two, who are Afghan nationals, would have been illegal in Afghanistan because a woman must be at least 15 years old to marry there.  The religious marriage was contracted in Iran where the couple was living illegally, but it was not registered with Iranian authorities. The couple subsequently applied for asylum in Switzerland which they had entered illegally from Italy. Refusing to recognize them as husband and wife, authorities removed the husband to Italy.  However he soon returned illegally to Switzerland where apparently then Switzerland decided to recognize the marriage once the woman turned 17. The European Court did not treat this as mooting the appeal to it of Switzerland's initial decision.

Fired Pastor and His Followers Lose Suit To Reclaim Their Former Church Building

In St. Mark Baptist Church of Pittsburg v. Saint Mark at Bethel Missionary Baptist Church, (CA App., Dec. 18, 2015), a California state appellate court upheld a trial court's decision in a dispute over control of church property.  Two Baptist churches merged, but the arrangement went sour after two years.  Under the merger agreement,  Pastor McNab from St. Mark Pittsburg was to be the pastor of the merged church, but the church was to meet in the building used by St. Mark at Bethel. When trustees of the merged church voted to terminate Pastor McNab, he and some of his followers left the church and attempted to return to their original building which had by now been rented out to an unrelated church. They sued seeking a ruling that they, not the merged church, still owned their original building.  In this decision, the Court of Appeals upheld the trial court's denial of a preliminary injunction to prevent sale of the St. Mark Pittsburg church building by the merged church, and also upheld the trial court's removal of a lis pendis notice-- a notice that litigation impacting the property was pending. It held that there was substantial evidence that McNab and his current followers were not the rightful leaders of St. Mark Pittsburg even if it continues to exist as a separate entity.

Slovenia Rejects Same-Sex Marriage In Referendum

In a referendum in the central European nation of Slovenia yesterday, voters by a margin of 63% to 37% rejected same-sex marriage.  Politco reports that the overall voter turnout for the referendum was only 35.6%.  This defeat of a bill passed by Parliament last March returns the country to its old rules that allow civil partnership but not adoption of children by same-sex couples. [Thanks to Paul de Mello for the lead.]

2016 Appropriations Act Includes Focus On International Religious Liberty

The massive Consolidated Appropriations Act, 2016 signed into law by President Obama last week includes a number of provisions specifically relating to international religious freedom.  These provision in Section 7033 (at pg. 519 of the bill) are of particular interest:

(c) INTERNATIONAL BROADCASTING.—Funds appropriated by this Act under the heading ‘‘Broadcasting Board of Governors, International Broadcasting Operations’’ shall be made available for programs related to international religious freedom, including reporting on the condition of vulnerable and persecuted religious groups.

(d) ATROCITIES PREVENTION.—Not later than 90 days after enactment of this Act, the Secretary of State, after consultation with the heads of other United States Government agencies represented on the Atrocities Prevention Board (APB) and representatives of human rights organizations, as appropriate, shall submit to the appropriate congressional committees an evaluation of the persecution of, including attacks against, Christians and people of other religions in the Middle East by violent Islamic extremists and the Muslim Rohingya people in Burma by violent Buddhist extremists, including whether either situation constitutes mass atrocities or genocide (as defined in section 1091 of title 18, United States Code), and a detailed description of any proposed atrocities prevention response recommended by the APB: Provided, That such evaluation and response may include a classified annex, if necessary.

(e) DESIGNATION OF NON-STATE ACTORS.—The President shall, concurrent with the annual foreign country review required by section 402(b)(1) of the International Religious Freedom Act of 1998 (22 U.S.C. 6442(b)(1)), review and identify any non-state actors in such countries that have engaged in particularly severe violations of religious freedom, and designate, in a manner consistent with such Act, each such group as a non-state actor of particular concern for religious freedom operating in such reviewed country or surrounding region: Provided, That whenever the President designates such a non-state actor under this subsection, the President shall, as soon as practicable after the designation is made, submit a report to the appropriate congressional committees detailing the reasons for such designation.

Suit Against Jewish Conversion Therapy Group Ends With Permanent Injunction and Settlement Instead of Appeal

As previously reported, in June a New Jersey state trial court jury awarded treble damages of $72,400 to a total of five plaintiffs who sued JONAH (Jews Offering New Alternatives for Healing), its founder and a counselor under the state's consumer fraud law. JONAH provided "conversion therapy" that it falsely claimed could change an individual from gay to straight.  Instead of appealing the decision, defendants entered a confidential settlement agreement (Stipulation) under which defendants are to pay an undisclosed amount of damages and attorneys' fees of $3500.  In addition the parties agreed to the award of a permanent injunction requiring JONAH to cease operations and liquidate.  The Court issued a consent Order on Dec. 18 (full text) implementing this agreement, including permanently enjoining defendants from offering any kind of conversion therapy in the future. CBS News reports on these developments and points out that New Jersey's 2013 law banning licensed therapists from offering sexual orientation change therapy for minors was not involved in the case because the defendants were not licensed therapists. An attorney who represented JONAH said:

It is sad that so many are celebrating the government's power to stop willing clients from working with willing counselors to lead their lives on Biblical principles.

Attorneys for plaintiffs responded, however:

The practice of conversion therapy, at base, constitutes fraud. It is premised on the lie that homosexuality is a disease or disorder. This case proved it to be a lie.

Southern Poverty Law Center's case page has links to all the pleadings and court orders in the case.

New York City Will Reimburse Private Religious Schools For Security Guards

The Forward last week reported that New York's City Council earlier this month passed legislation to reimburse all nonpublic schools with 300 or more students for unarmed security guards they hire.  The number of guards tor which they will be entitled to reimbursement depends on the size of the school.  Guards must be hired from a list of firms approved by the city, and they must be paid a prevailing wage.  This is part of a growing list of non-religious items  for which religiously affiliated private schools can obtain government funds.  The City will spend up to $19.8 million on the guards in the first year of the program.

Recent Articles of Interest

From SSRN:

• Samuel J. Levine, A Critique of Hobby Lobby and the Supreme Court's Hands-Off Approach to Religion, (Notre Dame L. Rev. Online 26 (2015)).
• Steven Douglas Smith, The Tortuous Course of Religious Freedom, (Notre Dame Law Review, Forthcoming).
• Aliza Cover, Archetypes of Faith: How Americans See, and Believe in, Their Constitution, (Stanford Law & Policy Review, Vol. 26, No. 555, 2015).
• Thomas M. Keck, Hate Speech and Double Standards, (Constitutional Studies 1:1 (Fall 2015)).
• Angela D. Morrison, Misconstruing Notice in EEOC Administrative Processing & Conciliation, (Nevada Law Journal, Vol. 14, p. 785-805, 2014).

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

• Nicola Carr, Paula Devine, Siobhan McAlister & Gail Neill, Public Attitudes Towards LGB Equality, (Access Research Knowledge, No 106, 2015).
• Pietro Faraguna, Regulating Religion in Italy: The Constitution Does (Not) Matter, (December 14, 2015).
• Piotr Godzisz, Forgotten Friends. ODIHR and Civil Society in the Struggle to Counter Hate Crime in Poland, (2015).
• Michael J. T. McMillen, Legal and Regulatory Considerations Pertaining to Islamic Capital Markets, (Islamic Capital Markets, Simon Archer and Rifaat Ahmed Abdel Karim, eds. Forthcoming).
• Tipu Salman Makhdoom, Enigmatic Sex Laws of Pakistan, (December 15, 2015).
• Saadiah Mohamad, et. al., Enhancing Cross Border Connectivity: Venturing into Islamic Finance as a New Source of Infrastructure Financing, (Journal of Emerging Economies and Islamic Research, Vol.3, No.3 (2015)).

From SmartCILP and elsewhere:

• Yousef T. Jabareen, The Arab-Palestinian Community in Israel: A Test Case for Collective Rights under International Law, 47 George Washington International Law Review 449-480 (2015).
• Charles J. Russo, Mergens v. Westside Community Schools at Twenty-Five and Christian Legal Society v. Martinez: From Live and Let Live to My Way or the Highway?, 2015 BYU Education and Law Journal 453-480.
• Kristen Stilt, Contextualizing Constitutional Islam: The Malayan Experience, [Abstract], 13 I.Con: International Journal of Constitutional Law 407-433 (2015).
• Fatahillah Abdul Syukur & Dale Margaret Bagshaw, Victim-Offender Mediation with Youth Offenders in Indonesia, [Abstract], 32 Conflict Resolution Quarterly 389-411 (2015).
• Journal of Law & Religion, Vol. 30, No. 1 (2015) has recently appeared.
• Andrea M. Alonso & Kevin G. Faley, Pope’s New Rule on Annulment: Will the Law Keep Up?, New York Law Journal, Dec. 18, 2015.
• SCOTUSblog's Zubik v. Burwell Symposium, (Dec. 2015).

U.N. Recognizes Yom Kippur As Holiday

According to the Times of Israel, the United Nations announced on Thursday that it was adding the Jewish holiday of Yom Kippur to the list of officially recognized U.N. holidays on which no official meetings will be scheduled and staff will not be required to report to work. The U.N. already observes Christmas, Good Friday, Eid al-Fitr and Eid al-Adha as holidays, along with six secular U.S. holidays. The U.N. move had important symbolic importance.  Israeli ambassador to the U.N. Danny Danon (who along with U.S. Ambassador Samantha Powers) led the move to add Yom Kippur, said: "Today we finally have an official place for the Jewish religion in the World’s parliament."

New Jersey Synagogue Files Court Appeal of Zoning Decision

The Clifton Journal reported Friday that the Clifton, New Jersey Orthodox Jewish congregation, Shomrei Torah, has filed an appeal in state court of a zoning decision that severely limits the size of the synagogue that Shomrei Torah plans to build.  Plans to turn an existing house into a synagogue by building on an addition were rejected.  The city's planning board voted 7-0 to limit the size of the proposed synagogue to 7,000 square feet in area or 35 feet in height-- a 57% reduction in the originally proposed square footage in order to insure that the synagogue meets requirements for number of parking spaces and conform the building to the neighborhood.

Recent Prisoner Free Exercise Cases

In Muhudin v. Wegener, 2015 U.S. Dist. LEXIS 166954 (D CO, Dec. 14, 2015), a Muslim inmate alleged that he was denied a halal diet.  A federal magistrate judge ordered plaintiff to file an amended complaint within 30 days that corrects a number of pleading defects.

In Boyce v. McKnight, 2015 U.S. Dist. LEXIS 167197 (ND IL, Dec. 15, 2015), an Illinois federal district court permitted an inmate to proceed against one a correctional officer who the inmate claimed pepper sprayed him in retaliation for the inmate's exercise of religion.

In In re Jaynes, 88 Mass. App. Ct. 745 (MA App., Dec. 16, 2015), the Massachusetts Appeals Court upheld a probate court's denial of a Wiccan inmate's petition to change his name for religious reasons, in light of the inmate's history of using multiple aliases. Boston Herald reports on the decision.

In Bennett v. Turner, 2015 U.S. Dist. LEXIS 167874 (ND IA, Dec. 16, 2015), an Iowa federal district court gave an inmate 30 days to file an amended complaint alleging that removing all churches from the list of numbers he could call substantially burdened his free exercise of religion.

In Torres v. Aramark Food & Commissary Services, 2015 U.S. Dist. LEXIS 168188 (SD NY, Dec. 16, 2015), a New York federal district court allowed a Muslim inmate to move ahead with his complaint under the free exercise clause that the nutritional inadequacy of the Ramadan meals, combined with the inability to supplement the meals with food from the commissary, forced him to switch from the Ramadan diet.

In Johnson v. Poupore, 2015 U.S. Dist. LEXIS 168837 (ND N Y, Dec. 16, 2015), a New York federal magistrate judge recommended dismissing an inmate's complaint that authorities confiscated his gold cross and chain and would not allow him to designate his religion as both Nation of Islam and Catholic under rules that allow only one designated religion at a time. He attempted to add the Catholic designation in order to be allowed to recover his gold cross. UPDATE: The court adopted the magistrate's recommendations at 2016 U.S. Dist. LEXIS 9147, Jan. 27, 2016.

In Boykins v. Lanigan, 2015 U.S. Dist. LEXIS 169293 (D NJ, Dec. 16, 2015), a New Jersey federal district court dismissed an inmate's complaint that he was not permitted to obtain prayer oil from a third-party vendor instead of the prison chaplain.

In Moore v. Katavich, 2015 U.S. Dist. LEXIS 169634 (ED CA, Dec. 18, 2015), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's complaint that on three separate days the prison kitchen staff served him a vegetarian diet instead of his Halal diet.

In Fox v. Magana, 2015 U.S. Dist. LEXIS 167571 (ED NC, Dec. 14, 2015), a North Carolina federal district court permitted a female inmate to move ahead with her complaint that she is not given adequate time to practice her religion and is not permitted to conduct worship services outside while other fiaths are permitted to do so.

Settlement Reached In Challenge To Terms of Indiana County's Open Forum Ordinance

On Friday the Thomas More Society announced that a settlement agreement (full text) has been reached in Freedom From Religion Foundation v. Franklin County, Indiana.  The suit followed the adoption of a county ordinance that, in order to insulate from challenge the display of a nativity scene, made the county courthouse a public forum for all types of expressive activities. In the suit, FFRF and the Satanic Temple objected to a provision in the ordinance that limits the open forum to county residents. (See prior posting.) Under the settlement agreement, the ordinance will be amended to merely require a local contact who works or resides in either Franklin county or an adjacent Indiana county for any unattended display.

Majority of Texas City Council Resign Over Holding of Forum Sponsored By FFRF

12 News this week reports that three members of the China, Texas City Council have resigned over the last month, apparently primarily because the mayor permitted the Freedom From Religion Foundation to hold a public panel discussion in city hall in October.  According to the Facebook page for the panel discussion:

The purpose of this event is to dispel misconceptions, gain accurate information about FFRF's ongoing involvement in SETX [Southeast Texas] school districts, and to discuss local and legal policies surrounding religion in public schools.

The resignations leave city council without a quorum to transact business. The Agenda for the Dec. 22 Council Meeting includes "Nominations for Vacant Council Seats."  Friendly Atheist blog has more on the controversy and a link to a video of the FFRF panel discussion.

New Appropriations Bill Includes Extensions of Charitable Contribution Tax Incentives

Yesterday President Obama signed into law the 887-page Consolidated Appropriations Act 2016.  Division Q of the bill is the "Protecting Americans From Tax Hikes Act" which made permanent a number of tax provisions that create incentives for charitable giving [scroll to pg. 805 of the bill]:

Sec. 111. Extension and modification of special rule for contributions of capital gain real property made for conservation purposes.

Sec. 112. Extension of tax-free distributions from individual retirement plans for charitable purposes.

Sec. 113. Extension and modification of charitable deduction for contributions of food inventory.

Sec. 114. Extension of modification of tax treatment of certain payments to controlling exempt organizations.

Sec. 115. Extension of basis adjustment to stock of S corporations making charitable contributions of property.

Calligraphy Assignment Involving Shahada Leads To Early Winter Break For Virginia Students

As reported by CNN, on Thursday afternoon Augusta County, Virginia school officials shut down all the schools a day early for winter break after information about a World Religion assignment handed out a week earlier received broad coverage and triggered threats to the school system.  At issue was an assignment in a high school world geography course-- taken from a standard workbook, World Religions, first published in 1995-- that was designed to acquaint students with Arabic calligraphy. The workbook assignment said:

Since Islam forbids idolatry, mosques are decorated with calligraphy rather than human or animal figures.... Here is the shahada, the Islamic statement of faith, written in Arabic.  In the space below, try copying it by hand.  This should give you an idea of the artistic complexity of calligraphy.

On Tuesday, the Augusta County School superintendent issued a press release explaining the assignment after some parents expressed concern to him.  As reported by Al Jazeera, high school parent Kimberly Herndon, one of the main objectors, posted a call on her Facebook page for the teacher involved to be fired because "she had [students] write an abomination to their faith and causes a little girl to cry herself to sleep because she was worried she had denounced her God."  Herndon accused the teacher of attempting to indoctrinate students "into a religion of hate."  In a press release on Thursday, the school superintendent announced:

Following parental objections to the World Geography curriculum and ensuing related media coverage, the school division began receiving voluminous phone calls and electronic mail locally and from outside the area. As a result of those communications, the Sheriff’s Office and the school division coordinated to increase police presence at Augusta County schools and to monitor those communications. The communications have significantly increased in volume today and based on concerns regarding the tone and content of those communications, Sheriff Fisher and Dr. Bond mutually decided schools and school offices will be closed on Friday, December 18, 2015.

This was followed up by an additional press release yesterday. Perhaps ironically, the early closure of schools apparently resulted in the cancellation of a number of Christmas programs, including choir and band concerts, scheduled for yesterday which students had been preparing for some time.

White House Convenes Forum on America's Religious Pluralism

As reported by Religion News Service, yesterday the White House convened a forum titled Celebrating and Protecting America’s Tradition of Religious Pluralism. Invited participants included secularists.  The program began with remarks by Melissa Rogers, head of the White House Office of Faith-based and Neighborhood Partnerships, who emphasized that "there are no second-class faiths" in the United States. A video of the entire forum is available on YouTube.  The Department of Justice has posted the full text of remarks at the forum by Vanita Gupta, head of the Civil Rights Division.

Britain's Law Commission Studies Possible Reform of Marriage Laws

Yesterday Britain's Law Commission published a 97-page background paper that lays the groundwork for possible reform of the country's marriage laws.  The publication, Getting Married: A Scoping Paper, highlighted two key policy areas that need examination in any reform: (1) whether non-religious organizations or independent celebrants should be able to conduct marriage ceremonies; and (2) how far the rules for entering civil partnerships should mirror the rules for marriage. Law & Religion UK has more on the Law Commission's report.

India's Supreme Court Balances Religious Rights Against Social Reform

In Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu, (India Sup. Ct., Dec. 16, 2015), the Supreme Court of India came down with a complicated holding on the constitutionality of an administrative order ("GO") adopted by the State of Tamil Nadu that attempts to eliminate the hereditary priesthood in Hindu temples.  It provides instead that "any person who is a Hindu and  possessing the requisite qualification and training" is eligible for appointment.  This was challenged by an association representing Hindu priests as well as by individual priests as infringing Constitutional rights of freedom of religion and of religious denominations to manage their own affairs.  India's First Post describes the Supreme Court's holding:

[T]he crucial purpose of the GO was to eliminate the monopoly of Brahmins as priests in the temples of Tamil Nadu. The idea was to open these positions to all suitable candidates from all castes who had obtained the appropriate training in the centres set up by the government.

The petitioners on the other hand contended that this GO went against the fundamental tenets of the Hindu religion, represented here by the agama shastras which prescribed how the rituals were to be carried out and who could be appointed as priests to Hindu temples. It was argued that following the agama shastras were “essential religious practices” protected under Article 26 of the Constitution which if deviated from on the basis of a GO, would amount to an invasion of the right of a denomination to carry out its religious practices.

[The Supreme Court] ... upheld the [GO] but with a rider that appointments made under it can be challenged on a case-by-case basis, as being contrary to the agama sastras or customs. But crucially, the agama sastras or customs may themselves be subject to scrutiny by the court to see if they are contrary to the provisions of the Constitution of India. The court has thus tried to strike a balance between two very contradictory impulses in our polity: The right to practice one’s religion and the social reform of religious practices.

Suit Challenges New Rule Excluding Religious Schools From Montana Scholarship Tax Credit Law

The Montana Department of Revenue in a notice (full text) certified to the Secretary of State on Dec. 14 that it has adopted, as proposed, Rule 1 (full text) that excludes religiously affiliated schools from participating in the state's new School Contributions Tax Credit law. (See prior posting.)  On Dec. 16. three mothers sued the state challenging the new rule.  The complaint (full text) in Espinoza v. Montana Department of Revenue, (MT Dist. Ct., filed 12/16/2015) claims that the exclusion of religiously affiliated schools is inconsistent with the intent of the legislature in enacting the scholarship tax credit law, and contends that the exclusion violates the free exercise, establishment and equal protection clauses of the Montana and U.S. Constitutions.  Institute for Justice announced the filing of the lawsuit.

Montana has a procedure for committees of the state legislature to weigh in on whether they believe that a particular proposed rule is consistent with legislative intent.  Using that procedure, the relevant committees of the Montana House and Senate voted that the proposed rule is inconsistent with legislative intent. (Notice of Legislative Poll).  The results of this legislative poll are admissible in evidence in the suit challenging the new rule.

The Great Falls Tribune reported yesterday:

Montana Solicitor General Dale Schowengerdt submitted comments while the rule was still in draft form that said a judge would likely decide it is unconstitutional to categorically exclude religious entities from a neutral benefits program without reason.

“The Attorney General believes that it would not be defensible,” Schowengerdt wrote of Montana Attorney General Tim Fox.

But Fox will have to defend the rule in the lawsuit and another expected to be filed in federal court. The Department of Justice is the attorney for the state when an agency is sued.

Catholic School Violates Mass. Law By Refusing To Hire Applicant Who Is In A Same-Sex Marriage

In Barrett v. Fontbonne Academy, (MA Super. Ct., Dec. 16, 2015), a Massachusetts state trial court held that a Catholic women's preparatory school unlawfully discriminated on the basis of sexual orientation and gender in violation of 21 MGL Chap. 151B when it withdrew an offer of employment as Food Services Director to Matthew Barrett after it discovered he was a spouse in a same-sex marriage.  The school said that same-sex marriage is inconsistent with the teachings of the Catholic Church.  In finding a statutory violation, the court rejected the school's argument that it came within the statutory exemption for religious organizations in Sec. 1(5) of the statute, because that exemption is limited to organizations that limit membership, enrollment, admission, or participation to members of the same religion. The court held that this limitation takes precedence over seemingly broader exemptive language for religious organizations in Sec. 4(18).  It also held that imposing these anti-discrimination provisions on the school did not violate the school's right of expressive association.  Finally the court rejected the school's reliance on the "ministerial exception" doctrine, concluding that Barrett would not be considered a minister "under any version of this doctrine." The Advocate reports on the decision.

DOE Exemptions From Title IX For Religious Colleges Is Growing

Earlier this month, The Column reported that in the last 18 months, the Department of Education has granted waivers to 27 religious colleges and universities in 17 states from the Department's interpretation of Title IX that bars schools receiving federal funds from discriminating against transgender students.  (See prior related posting.) Nine other schools have exemption applications pending. A number of these schools have sought and received even broader exemptions from Title IX based on the school's religious tenets.  For example in February the Department of Education granted a broad waiver to Anderson University:

The University is exempt from these provisions to the extent that they prohibit discrimination on the basis of marital status, sex outside of marriage, sexual orientation, gender identity, pregnancy, or abortion and compliance would conflict with the controlling organization’s religious tenets.

Christian advocacy groups are providing training and sample documents for schools to use in applying for exemptions. [Thanks to Religion Dispatches for the lead.]