Supreme Court Denies Review In North Dakota Fetal Heart Beat Abortion Ban

The U.S. Supreme Court today denied certiorari in Stenehjem v. MKB Management Corp., (Docket No. 15-627, cert. denied 1/25/2016). (Order List.)  In the case, the U.S. 8th Circuit Court of Appeals (full text) held unconstitutional North Dakota's ban on abortions from the time the fetus possesses a detectable heartbeat. ABC News reports on the denial of review.

SCOTUS: State Courts Can Award Attorneys' Fees In Sec. 1983 Cases Only If Suit Was Unreasonable

Suits under 42 USC Sec. 1983 for deprivation of federal civil rights may be brought in state court as well as federal court. Today the U.S. Supreme Court in a per curiam opinion published at the end of its Order List held that state courts are bound by the Supreme Court's interpretation of provisions regarding award of attorneys' fees to defendants in Sec. 1983 actions.  In James v. City of Boise, Idaho, (Sup. Ct., Jan. 25, 2016), the Supreme Court reversed a decision of the Idaho Supreme Court that had held in awarding attorneys' fees under 42 USC Sec. 1988, state courts could ignore the U.S. Supreme Court's interpretation of the statute that limited awards to cases where plaintiff's suit is frivolous, unreasonable, or without foundation.  Idaho had taken the position that since this limitation is not found in the words of the statute, the Supreme Court was merely limiting the discretion of federal courts. The U.S. Supreme Court however, citing cased dating back as far as the 19th century, held that once the Supreme Court interprets federal law, it is the duty of state courts to follow that interpretation.

Recent Articles of Interest

From SSRN (U.S. Law):

• Perry Dane, Master Metaphors and Double-Coding in the Encounters of Religion and State, (San Diego Law Review, Vol. 52, 2015).
• Ilana Finefter-Rosenbluh & Lotem Perry-Hazan, Teacher Diversity and the Right to Adaptable Education in the Religiously-Oriented School: What Can We Learn from Students’ Perceptions?,  ((January 17, 2016). Youth & Society, doi:10.1177/0044118X15621224).
• Elizabeth Rose Schlitz, Rulemaking Under Dodd-Frank: Putting the 'Person' Back Into the Consumer Lending Process, (8 University of St. Thomas Journal of Law & Public Policy 117 (2016)).
• Sahar F. Aziz, Coercing Assimilation: The Case of Muslim Women of Color, (Transnational Law & Contemporary Problems, Vol. 24, No. 2, 2015).

From SSRN (Marriage and Family):

• Elizabeth Rose Schlitz, Motherhood: Benefit or Burden to Business, (International Study Seminar on “Women and Work”, Pontifical Council for the Laity, Rome, Italy (2015)).
• Jayashree P. Khandare, Live-in-Relationships -- Are They Menace to the Institution of Marriage, (2015 AIR Jour /9(2) (8 pp.) VII).
• Jayashree P. Khandare, The Concept of Marriage and its Form: An Indian and Western Perspective, (International Journal of Scientific Research, Volume : 4 | Issue : 12 | December 2015).

From SSRN (Canada):

• Dia Dabby, Constitutional (Mis)Adventures: Revisiting Quebec's Proposed Charter of Values, (2015) 71 S.C.L.R. (2d) 353-383.
• Howard Kislowicz, Loyola High School v. Attorney General of Quebec: On Non-Triviality and the Charter Value of Religious Freedom, ((2015) 71 Supreme Court Law Review (2d) 331-351).

From SSRN (Europe and the Middle East):

• Sylvie Langlaude Doné, Religious Organisations, Internal Autonomy and Other Religious Rights Before the European Court of Human Rights and the OSCE, (forthcoming in (March 2016) Netherlands Quarterly of Human Rights).
• Andrea Pin, Introduction to: The Legal Treatment of Muslim Minorities in Italy, (Islam and the Neutral State (Ashgate 2016)).
• Pnina Lahav, The Women of the Wall - A Metaphor for National and Religious Identity, (Israel Studies Review, Volume 30, Issue 2, Winter 2015: 50-70).

From SSRN (Legal History):

• Charles J. Reid, The Jurisprudence of the Forced Share: The High and Late Middle Ages, (Norwegian Academy of Sciences, “Donations: Strategies and Relations in the Latin West/Nordic Countries From the Late Roman Period Until Today” (Routledge, Ole-Albert Ronning, Helle Moller Sighe & Helle Vogt, eds., 2016 Forthcoming).
• Charles J. Reid, The Jurisprudence of the Forced Share in the Ancient World: From Cicero to Justinian?, (Norwegian Academy of Sciences, “Donations: Strategies and Relations in the Latin West/Nordic Countries From the Late Roman Period Until Today” (Routledge, Ole-Albert Ronning, Helle Moller Sighe & Helle Vogt, eds., 2016 Forthcoming).
• Anna Su, Catholic Constitutionalism from the Americanist Controversy to Dignitatis Humanae, (Notre Dame Law Review (2016 Forthcoming)).

Jehovah's Witness Teacher Sues Over Valentine's Day Party Requirement

As reported on Friday by MLive, in Michigan a former teacher has sued the Southfield school system because her principal ordered her to plan a Valentine's party for her 4th grade class despite her objection that her Jehovah's Witness beliefs preclude her from celebrating St. Valentine's Day.  The complaint in Lemmons v. Southfield Public Schools, (ED MI, filed 1/4/2016), says that the teacher, Yvonne Lemmons, did not show up the day of the party, and soon afterwards the district laid her off.  Lemmons says it was retaliation.  Lemmons initially filed a complaint with the EEOC, and it found reasonable cause.

Satanist's RFRA Challenge To Missouri Abortion Restrictions Dismissed

As previously reported, last May a member of the Satanic Temple filed a lawsuit in state court in Missouri challenging as a violation of Missouri's Religious Freedom Restoration Act the state's waiting period and informed consent requirements imposed before a woman may obtain an abortion. The complaint in Doe v. Nixon, (MO Cir. Ct., filed 5/8/2015), alleged that plaintiff has deeply held religious beliefs that her body is inviolable and subject to her will alone and that she alone decides whether to remove a non-viable fetus. Now the St. Louis Post-Dispatch reports that last month the court dismissed the case, holding that plaintiff's "pleadings fail to allege facts, which if true, state a claim for relief under the Religious Freedom Restoration Act."

Ministerial Exception Applies To Hospital Chaplain's Discrimination Lawsuit

In Penn v. New York Methodist Hospital, (SD NY, Jan. 20, 2016), a New York federal district court invoked the ministerial exception doctrine to dismiss a discrimination suit brought by an African-American Methodist pastor employed as a part-time chaplain by a Methodist hospital.  Plaintiff claimed that he was not promoted to a vacant full-time position because of his race and religion. The court held that the hospital is a "religious institution" for purposes of the ministerial exception doctrine even though it had severed its formal ties with the United Methodist Church:

Severing a formal affiliation with the Church does not necessarily imply that the Hospital does not maintain any church-based relationship or have any religious characteristics.

It went on to find:

insofar as Plaintiff is a Methodist and was responsible—at least in part—for preaching the Christian faith, the relationship between Plaintiff and NYMH (specifically, the pastoral care department) was that of a religious employee and a religious institution. This case does not present the Court, nor will the Court venture out to decide, whether this holding would apply to a religious institution’s employment of a minister, pastor, or chaplain of a different faith.

Kansas Appeals Court Splits Evenly Over State Constitution's Protection of Abortion Rights

In Hodes & Nauser, MDs, P.A. v. Schmidt, (KA App., Jan. 22, 2016), the Kansas Court of Appeals sitting en banc split evenly, 7-7, on whether the Kansas state Constitution provides a right to abortion.  A decision for 6 judges, written by Judge Leben, held that:

sections 1 and 2 of the Kansas Constitution Bill of Rights provide the same protection for abortion rights as the Due Process Clause of the Fourteenth Amendment to the United States Constitution...

 Judge Atcheson, in a concurring opinion, also concluded that the state Constitution protects the right to abortion, but  through language § 1 of the Constitution "prohibiting undue government interference with those inalienable rights, including reproductive freedom, that compose self-determination."

Judge Malone writing a dissenting opinion on behalf of 7 judges rejected the assertion that the Kansas Constitution protects abortion rights, saying in part:

We conclude that the plain language of §§ 1 and 2 of the Kansas Constitution Bill of Rights is not similar enough to the language of the Fourteenth Amendment to find that the corresponding provisions must be applied in the same manner..... Simply put, there is nothing within the text or history of §§ 1 and 2 of the Kansas Constitution Bill of Rights to lead this court to conclude that these provisions were intended to guarantee a right to abortion.

The effect of the even split was to affirm the trial court's grant of a preliminary injunction preventing the Kansas Unborn Child Protection from Dismemberment Abortion Act from taking effect. AP reports on the decision, noting that it was released on the 43rd anniversary of the U.S. Supreme Court's Roe v. Wade decision.

EEOC Seeks Comment On Proposed Guidance On Retaliation

The EEOC yesterday announced that it is seeking public comment on a proposed Enforcement Guidance on Retaliation and Related Issues.  The 76-page Guidance document (full text) includes examples of retaliatory conduct, remedies and best practices for employers.  In connection with religious discrimination in employment, the Guidance says in part:

[P]ersons requesting religious accommodation under Title VII are protected against retaliation for making such requests.  Although a person making such a request might not literally “oppose” discrimination or “participate” in a complaint process, s/he is protected against retaliation for making the request.

10th Circuit Hears Oral Arguments In "Sister Wives" Challenge To Utah Polygamy Ban

The U.S. 10th Circuit Court of Appeals yesterday heard oral arguments in Brown v. Buhman, a case in which a Utah federal district judge struck down most of Utah's statute banning polygamy. (See prior posting.)  While the 10th Circuit does not post recordings of oral arguments, AP reported on the arguments.  Plaintiffs in the case are the polygamous family featured on the TLC reality series "Sister Wives,"

Challenge To School Religious Activities Dismissed On Standing Grounds

In American Humanist Association, Inc. v. Douglas County School District RE-1, (D CO, Jan. 20, 2016), a Colorado federal district court dismissed for lack of standing a lawsuit by parents of children in the Douglas County School District, and by the American Humanist Association. The suit challenged as violations of the Establishment Clause and the Equal Access Act various religious activities in the school system, including participation in Operation Christmas Child collections for needy children, a trip by the Fellowship of Christian Athletes to Guatemala and faculty participation in the Fellowship of Christian Athletes.  Some plaintiffs did not show any injury in fact, while others did not show that their injury was traceable to the challenged conduct. The court also found no standing for plaintiffs as municipal taxpayers.

"No-Aid" Clause Not Violated By Faith-Based Social Service Contracts

In Center For Inquiry , Inc. v. Jones, (FL Cir. Ct., Jan. 20, 2016), a Florida state trial court upheld against constitutional challenge state contracts with religious organizations for substance abuse treatment and transitional housing for former inmates.  Plaintiffs contended that the contracts violate Art. I, Sec. 3 of the Florida Constitution which provides in part:

No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.

The court disagreed, saying:

The No-Aid provision permits government contracts with religious organizations if the funds are not spent "in aid of" religion but rather to further the state's secular goals.... [T]he Program exists to promote the State's anti-recidivism and anti-addiction efforts, not religion. The Program is not "significantly sectarian": it permits some religious content only to the extent the content is offered in a nondiscriminatory and wholly optional and voluntary fashion. Further, the record shows that the program does not indoctrinate, require participation in religious ritual, or favor any one religion over another.

Becket Fund issued a press release announcing the decision.

Department of Education Will Publicize Religious Colleges That Have Obtained Title IX Exemptions

As previously reported, over the last two years the U.S. Department of Education has granted a number of religiously-controlled colleges an exemption from Title IX where full compliance would conflict with their religious tenets.  With the exemption, the schools may continue to receive federal funds even though they discriminate in various ways on the basis of marital status, sex outside of marriage, sexual orientation, gender identity, pregnancy, or abortion. In a press release yesterday, Human Rights Campaign says that now the Department of Education has agreed to create a searchable database of educational institutions that have applied for and/or received such exemptions. HRC comments:

While the Department of Education has little discretion to deny these requests for exemptions, religiously controlled educational institutions should not be exempt from full transparency.

Texas Bar Committee Backs Off Refusal To Certify Christian Ethics CLE Course

As reported by Catholic Education Daily, the State Bar of Texas Minimum Continuing Legal Education Committee last week backed off of its controversial refusal last November (see prior posting) to certify a religious-themed continuing legal education program for "Legal Ethics/ Professional Responsibility" credit.  Texas Gov. Greg Abbott had charged the Committee with religious discrimination after it refused to approve a St. Mary's law school professor's CLE program on "Christian Ethical Perspectives: Faith and Law Today" for ethics credit.  In its January 12 letter (full text) to the professor, Bill Piatt, the Committee said in part:

It has become clear that the November 4 letter conveyed an unintended and incorrect impression regarding the MCLE Committee's position regarding the provision of credit for courses containing moral or religious content.  We take responsibility for and regret the miscommunication.

Zimbabwe's Constitutional Court Says Marriage Under Age 18 Is Banned Without Exceptions

Zimbabwe's Constitutional Court yesterday held that the country's Constitution bars marriage below the age of 18 for either males or females. According to NewsdzeZimbabwe, the court held that  Sec. 78(1) of Zimbabwe's Constitution invalidates Sec. 22(1) of the Marriage Act that allowed girls (with consent of their parents or guardians) to marry at age 16 and boys to marry at age 18, and in addition allowed either to marry at a younger age with the consent of the Minister of Justice, Legal and Parliamentary Affairs.  The court held that the Constitution "sets 18 years as the minimum age of marriage...." and that the Constitution "permits no exception for religious, customary or cultural practices that permit child marriage, nor does it allow for exceptions based on the consent of public official, parents or guardians."

Suit Seeks "Church Plan" Designation To Avoid Liability For Bankrupt Pension Plan

In Nashville (TN), an important charitable foundation, the Baptist Healing Trust Fund, last week filed a declaratory judgment action against the U.S. Pension Benefit Guaranty Corporation seeking to avoid potential liability to the PBGC in connection with the now-bankrupt retirement plan of the former Baptist Hospital. According to the complaint (full text) in Baptist Healing Hospital Trust v. Pension Benefit Guaranty Corporation, (MD TN, filed 1/12/2016), the charitable trust-- which received a substantial portion of the proceeds from the sale of Baptist Hospital in 2001-- seeks a ruling that the pension plan was an exempt "church plan" under ERISA so that the PBGC would have no jurisdiction to pursue claims on behalf of the plan. The PGBC is seeking arbitration to recover the $100 million still due to retirees.  The lawsuit also seeks a stay of the arbitration while the court determines the exempt status of the plan. Nashville Public Radio,  Nashville Post, and The Tennessean all report on the lawsuit.

Adventists Sue Town Over Required License For Door-To-Door Solicitation

The Seventh Day Adventist Church and two of its members filed a federal lawsuit yesterday against the city of White Hall, Arkansas challenging the constitutionality of the city's requirement for a permit before an individual can engage in door-to-door solicitation of funds.  The complaint (full text) in Arkansas-Louisiana Conference of Seventh Day Adventists v. City of White Hall, Arkansas, (ED AR, filed 1/19/2016), contends that the ordinance violates plaintiffs' free speech, free exercise, due process rights and their rights under Arkansas' Religious Freedom Restoration Act. At issue is a  Student Literature Evangelism Program run by Ouachita Hills College in which teams go door-to-door in neighborhoods evangelizing, offering literature and asking for donations.  The suit contends that the ordinance is overbroad and vague, and that its $50 fee chills speech, substantially burdens religious exercise. Plaintiffs also filed a brief (full text) in support of their motion for injunctive relief.  Adventist Review reports on the filing of the lawsuit.

Ejected Muslim and Sikh Airline Passengers Sue

The New York Daily News reported yesterday that a federal lawsuit has been filed against American Airlines and two affiliated regional carriers by  four friends-- 3 Muslims and a Sikh-- who were ejected from a Toronto to New York flight last December because they made the stewardesses and the captain uneasy.  The flyers' appearance and the fact that two of them upgraded to business class just before boarding aroused suspicions in the crew.  Two of the ejected passengers were Bangladeshi Muslims, one an Arab Muslim and one a Sikh from India.  The lawsuit seeks $9 million in damages, claiming plaintiffs were discriminated against for looking too Muslim.

Jehovah's Witnesses In Russia Sue Over Blocking of Bible Imports

Interfax yesterday reported on a lawsuit filed in a Russian court by  the Administrative Center for Jehovah's Witnesses in Russia against customs authorities in the town of Vyborg.  According to the lawsuit filed in the St. Petersburg and Leningrad Region Arbitration Court, Customs has refused to allow into the country a shipment of Bibles from German Jehovah's Witnesses because they were not accompanied by documents certifying compliance with the Federal Law on Counteracting Extremist Activity. The shipment included the Synodal edition of the Bible (translated by the Russian Orthodox Church) and the Study Bible published by the Russian Bible Society.  According to a Nov. 30, 2015 report from Forum 18:

A new Russian legal amendment bans some sacred texts - "the Bible, the Koran, the Tanakh and the Kanjur, their contents, and quotations from them" - from being banned as "extremist". But about 4,000 Jehovah's Witness Bibles are among millions of their publications still held up at Russian customs as they may contain "extremism"....

Trump Speaks At Liberty University With Outreach To Evangelicals

Republican presidential hopeful Donald Trump spoke at Liberty University yesterday, in a talk geared toward his evangelical Christian audience. (Video of full remarks.)  He speech was preceded by a lengthy introduction (full text) from Liberty University president Jerry Falwell, Jr., who said in part:

Matthew 7:16 tells us "by their fruits ye shall know them".  Donald Trump's life has borne fruit, fruit that has provided jobs to multitudes of people in addition to the many he has helped with his generosity.... In my opinion, Donald Trump lives a life of living and helping others as Jesus taught in the Great Commandment.

As reported by Time:

Early on in his speech, Trump tailored his message to the crowd and emphasized the power of Christianity in the country.

 “We’re going to protect Christianity,” he said, before quoting a Bible passage. “2 Corinthians, right? 2 Corinthians 3:17, that’s the whole ballgame. Where the spirit of the lord, right? Where the spirit of the lord is, there is liberty … It is so true.”

(When quoting the Bible passage, Trump said “two Corinthians” rather than “Second Corinthians,” the correct way of saying it.)

“If you look what’s going on throughout the world … Christianity, it’s under siege,” Trump continued. “I’m Protestant, I’m very proud of it, Presbyterian to be exact, but I’m very proud of it … And we’ve got to protect because bad thing are happening … We don’t band together, maybe? Other religions frankly they’re banding together and they’re using it. If you look at this country, it’s gotta be 70 percent, 75 percent, some people say even more. The power we have, we have to unify. We have to band together, we have to do really in a really large version what they’ve done at Liberty.”

Recent Articles of Interest

From SSRN:

• Joseph E. David, Incest, (Encyclopedia of the Bible and Its Reception (Berlin/Boston: Walter de Gruyter, 2015)).
• Victor C. Romero, The Prodigal Illegal: Christian Love and Immigration Reform, (Denver University Law Review, Vol. 92, No. 917, 2015).
• Douglas NeJaime & Reva Siegel, Conscience Wars in Transnational Perspective: Religious Liberty, Third-Party Harm, and Pluralism, (The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Susanna Mancini & MIchel Rosenfeld eds., Cambridge Univ. Press 2017).
• Joel S. Newman, What is a Church? A Look at Tax Exemptions for the Original Kleptonian Neo-American Church and the First Church of Cannabis, (Lexis Federal Tax Journal Quarterly, December 2015).
• Kadir Nagac, Religiosity and Tax Compliance, (January 14, 2016).
• Spencer Churchill, Justice Kennedy and the Unfolding Doctrine of Corporate Religious Sincerity, (May 21, 2015).
• Felice Batlan, Forging Identities: Jewish Women, Legal Aid, and the Secular Liberal State, 1890-1930, (Indiana Journal of Law and Social Equality, Forthcoming).

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

• Hassan Poorbafrani & Masoud Zamani, A Comparative Critique of Regulating the Personal and the Personality Principles in the Iranian Penal System, (January 10, 2016).
• Yinka Olomojobi, Gender and Sharia Law in Northern Nigeria, (July 10, 2015).
• Shamshad Pasarlay, Islam and the Sharia in the 1993 Mujahideen — Draft Constitution of the Islamic State of Afghanistan: A Comparative Perspective,(January 11, 2016).

From SmartCILP, Academia and elsewhere:

• Noura Erakat, Whiteness As Property in Israel: Revival, Rehabilitation, and Removal, 31 Harvard Journal of Racial & Ethnic Justice 69-103 (2015).
• Myriam Hunter-Henin, Religion, Children and Employment: The Baby Loup Case, 64 International & Comparative Law Quarterly 717-731 (2015).
• Ali Altaf Mia, Legal Religion: Ethical Norms and Demands of Justice, (Chap. 21 in Jeffrey J. Kripal (ed.), Religion: Sources, Perspectives, and Methodologies (Macmillan Interdisciplinary Handbooks, 2016)).
• Dani Kranz, Quasi-Ethnic Capital vs. Quasi-Citizenship Capital: Access to Israeli Citizenship, (Migration Letters, Volume: 13, No: 1, pp. 64– 83, Jan. 2016).
• Bryce Langford, The Minister’s Housing Allowance: Should It Stand, and If Not, Can Its Challengers Show Standing?,  63 Kansas Law Review 1129 (2015).