African-American Church Files RLUIPA Suit Over Denial of Special Use Permit

A Johnston, Rhode Island predominately African-American congregation has filed a lawsuit against the town and its zoning official who denied the church a special use permit to allow it to use the church building it purchased last year for religious assembly. The complaint (full text) in King's Tabernacle v. Town of Johnston, Rhode Island, (D RI, filed 1/25/2016) contends that even though the building has been used for worship by other congregations since 1891, city officials required King's Tabernacle to apply for a special use permit, and then denied the application. The town's zoning official, who subsequently was recorded making racist remarks about the church, told the church it would now have to pay property taxes. The suit contends that the denial of the special use permit violated RLUIPA and the church's free exercise rights. Johnston Patch reports on the filing of the lawsuit.

Former Atheist Employee Can Move Ahead With Title VII Suit Against Christian Business

Mathis v. Christian Heating & Air Conditioning, Inc., (ED PA, Jan. 25, 2016) is a discrimination lawsuit brought under Title VII of the 1964 Civil Rights and and under the Pennsylvania Human Relations Act by an installation mechanic who was fired  or constructively discharged for covering the back of his identification badge with tape to hide his employer company's religious mission statement.  The company's owner is a born-again Christian, while plaintiff is an atheist.  The statement which plaintiff taped over read:

This company is not only a business, it is a ministry. It is set on standards that are higher than man’s own. Our goal is to run this company in a way most pleasing to the Lord.

Treating employees and customers as we would want to be treated along with running a business as if we are all part of one big family is our plan.

The court rejected defendant's RFRA defense, holding that RFRA applies only to suits in which the government is a party.  The court went on to hold that plaintiff had established a prima facie case of failure to accommodate his atheistic beliefs, saying:

Under Title VII, atheists are entitled to the exact same protection as members of other religions.... A reasonable trier of fact could infer from this evidence that Peppelman terminated plaintiff’s employment “with the motive of avoiding accommodation,” in violation of Title VII.

The court also held that plaintiff can move ahead with his retaliation claim.

4th Circuit Hears Oral Arguments On County Commissioners' Invocation Policy

The U.S. 4th Circuit Court of Appeals today heard oral arguments (audio of full arguments) in Lund v. Rowan County, North Carolina, (Docket No. 15-1591). In the case, a North Carolina federal district court held that a county Board of Commissioners' invocation policy is not constitutionally permissible under the Supreme Court's Town of Greece decision when sectarian invocations are delivered by the county commissioners themselves rather than invited clergy and other prayer-givers. The district court also found the county's practice unconstitutionally coercive. (See prior posting.) WBTV reports on today's arguments.

Today Is International Holocaust Remembrance Day

Today is International Holocaust Remembrance Day, set by the United Nations on the anniversary of the liberation of Auschwitz-Birkenau. Jerusalem Post reports:

In Washington, US President Barack Obama will attend a ceremony at the Israeli Embassy posthumously honoring four Righteous Among the Nations – non- Jews who risked their lives to save Jews during the Holocaust and are recognized by Israel's Yad Vashem....

Among those being honored is US Army master-sergeant Roddie Edmonds (died 1985), from Knoxville, Tennessee, who, when imprisoned in a German POW camp, refused to identify Jewish soldiers under his command, telling the camp commandant: “We are all Jews.”...

Chancellor Angela Merkel, in her podcast on Saturday, said anti-Semitism in Germany is “more widespread than we imagine,” citing schools, social media and legal measures.

She called on refugees to reject anti-Semitism.

On Monday, Merkel opened the biggest exhibition of Holocaust art outside Israel in Berlin.

UPDATE: Here is the full text of President Obama's remarks at the Righteous Among Nations Award Ceremony.

Iran's Rouhani Visits Italy; Religious Protocol Among Economic Talks

As reported by Al Jazeera, on Monday Iran's President Hassan Rouhani arrived in Italy to begin a four-day European trip that will also take him to France. The trip focuses mainly on renewing economic ties. International Business Times reports that some Italians are angered at their government's handling of Rouhani's tour of a famous Rome museum:

Rouhani toured the Musei Capitolini (Capitoline Museums) – which hosts a huge collection of artefacts from the ancient, medieval and renaissance periods – accompanied by Italian Prime Minister Matteo Renzi on 25 January.

However, the Iranian leader could not admire some of the museum's masterpieces, as all marbles depicting naked scenes had been carefully hid behind large white panels.

The vast censorship effort was reportedly implemented as a show of respect to the reformist president, out of fears that the exposed private parts of ancient Roman gods could offend Iranian sensitivity. Wine was also banned from official receptions.

VIS reports that Rouhani also met in the Vatican with Pope Francis:

During the cordial discussions, common spiritual values emerged and reference was made to the good state of relations between the Holy See and the Islamic Republic of Iran, the life of the Church in the country and the action of the Holy See to favour the promotion of the dignity of the human person and religious freedom.

Falwell Endorses Trump; Other Evangelical Leaders Quickly Object

Donald Trump's presidential campaign announced yesterday that Trump has received the endorsement of Jerry Falwell, Jr. who is president of Liberty University and is the son of the late televangelist Jerry Falwell, Sr.  In endorsing Trump, Falwell called him  "a successful executive and entrepreneur, a wonderful father and a man who I believe can lead our country to greatness again." According to the Washington Post, this is part of Trump's recent attempt to appeal to religious voters:

On the campaign trail in Iowa, he now begins rallies with a prayer. In Sioux City and Pella, the prayer was offered by Dallas megachurch pastor Robert Jeffress. And on Sunday, Trump attended a Presbyterian service where he met with churchgoers and posed for pictures.

Politico reports however:

Jerry Falwell Jr.’s endorsement of Donald Trump on Tuesday was swiftly met with a backlash from other Christian conservatives sounding the alarm about what they see as a dangerous candidate with questionable morals.

John Stemberger, president of the Florida Family Policy Council said: "The late Dr. Jerry Falwell Sr. would be rolling over in his grave if he knew the son who bore his name had endorsed the most immoral and ungodly man to ever run for President of the United States."

Commission Recommends Removal of State Judge On Various Grounds Including Resisting Same-Sex Weddings

In an opinion issued on Monday (full text), the Oregon Commission on Judicial Fitness and Disability recommended to the Oregon Supreme Court that Marion County Judge Vance Day be removed from office for violations of ten rules of the Code of Judicial Conduct.  Judge Day gained notice when he ordered his staff to screen wedding applicants to assure that any same-sex couples were directed to other judges.  The Commission found that this practice violated three separate rules of conduct.  In addition the Commission found that Judge Day violated Judicial Conduct Rules in connection with his interaction with individuals officiating at his son's soccer games; facilitating the handling of a firearm by a convicted felon who was on supervised probation, as well as personal out-of-court contacts with the felon who had been a Navy SEAL and awarded a Bronze Star; and by soliciting funds from attorneys to acquire military art to be hung in and around his Veterans Treatment Court.  Here is the written closing arguments submitted by Judge Day. Reuters reported on the Commission's opinion. (See prior related posting.)

Court Says Ark Encounter Cannot Be Excluded From Kentucky Tax Incentives

In Ark Encounter, LLC v. Parkinson, (ED KY, Jan. 26, 2016), a Kentucky federal district court, in a 71-page opinion, held that Kentucky improperly excluded a Noah's Ark complex from participating in tax incentives provided by the state's Tourism Development Act. The court summarized the facts and its holding as follows:

Rising on what was once farmland near the community of Williamstown, Kentucky, is what purports to be an exact replica of the ark that figures prominently in the Old Testament story of a great flood that covered the earth. The modern-day Noah that is constructing the replica hopes that its almost $100 million investment will produce a successful tourist attraction.  At first, the Kentucky Tourism Cabinet, with the same hope, approved tax incentives for the project. But then, representatives of the Commonwealth, concerned that the project was going to “advance religion,” reversed course; the reason: providing the tax incentives would be contrary to the First Amendment protection from the state establishment of religion.

So, in essence, the question presented here is this: if a tourist attraction, even one that as described here “advances religion,” meets the neutral criteria for tax incentives offered by the Commonwealth of Kentucky, can the Commonwealth still deny the incentive for Establishment Clause reasons? This opinion is long but the answer to that question is short -- no. 

At the heart of the court's lengthy opinion was the following:

The Commonwealth has forced  [Ark Encounter] to choose between expressing its religious views on its own property at the theme park and receiving the tax rebate under the KTDA. Although Defendants are correct that “the mere non-funding of private secular and religious . . . programs does not burden a person’s religion or the free exercise thereof,” ..., in this case the Commonwealth is funding the private secular programs while discriminating against the religious one because of its religiosity, which is a violation of the Free Exercise Clause.

AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

UPDATE: Kentucky Gov. Matt Bevin's office said on Jan. 27 that it will not appeal the court's decision. (Cincinnati Enquirer).

Alumni Complain To ABA That BYU Law School Expels Mormon Students Who Leave The Church

The Salt Lake Tribune reported yesterday that the American Bar Association is investigating a complaint filed against Brigham Young University Law School by a group of its alumni calling themselves FreeBYU.  The group charges the law school with continued enforcement of provisions in its Honor Code that results in expelling Mormon students who leave the LDS Church while they are enrolled in law school.  Similarly the students are fired from their campus jobs and evicted from campus housing. (Background.)  The Honor Code applies as well to faculty.  FreeBYU says that the school's ban on homosexual behavior and sex-reassignment surgery also violates ABA anti-discrimination standards (ABA Standards for Approval of Law Schools, Standard 205).

Texas County Grand Jury Clears Planned Parenthood, Indicts Sting Videographers

Houston Chronicle and the New York Times report that a Harris County, Texas grand jury that was investigating a Planned Parenthood clinic in Houston has cleared the clinic of charges of illegal conduct and instead indicted two of the anti-abortion activists involved in making widely publicized, highly-edited videos involving the clinic. (Press release by Harris County District Attorney.)  Yesterday the grand jury handed down no indictments against Planned Parenthood Gulf Coast that had been charged by the anti-abortion group Center For Medical Progress with illegal sale of fetal tissue to researchers. However it indicted undercover videographers David Daleiden and Sandra Merritt on charges of tampering with a governmental record.  Apparently these charges stem from their use of false government identifications (false documents resembling California drivers' licenses) to obtain access to private areas and record private conversations.  Daleiden was also charged on a misdemeanor count under the law prohibiting the purchase and sale of human organs.  Apparently the grand jury found that he likely crossed the line into offering to buy fetal tissue in his efforts to get Planned Parenthood personnel to admit to selling fetal tissue.

Daleiden said that they were merely using the same techniques that investigative journalists have typically used.  In a statement reacting to the grand jury's action, Texas governor Greg Abbott said:

The Health and Human Service Commission’s Inspector General and the Attorney General’s office have an ongoing investigation into Planned Parenthood’s actions. Nothing about today’s announcement in Harris County impacts the state’s ongoing investigation. The State of Texas will continue to protect life, and I will continue to support legislation prohibiting the sale or transfer of fetal tissue.

Earlier this month, Planned Parenthood filed a civil RICO action against Center for Medical Progress. (See prior posting.) [Updated]

States In Total Liable For Over $13.6M In Lawyers' Fees In Same-Sex Marriage Case Losses

National Law Journal yesterday reported on its compilation of legal fees that 26 states which unsuccessfully defended same-sex marriage bans have agreed to pay or been ordered by courts to pay to successful plaintiffs.  They total more than $13.6 million (including the later-reported $100,000 settlement with Montana)-- with 6 states each being required to pay over $1 million.  The NLJ also published a chart showing the award or settlement amount by case. Fee petitions are still pending in three states.

IRS Announces Changed Procedures For Tax Issues Involving Churches

BNA Daily Report for Executives [subscription required] reported last week on two recent Internal Revenue Service memos of interest to churches. A Dec. 17, 2015 memo (full text) announces that from now on, any investigation involving Employment Tax examinations of churches will be subject to the same special procedures under IRC Sec. 7611 as other church tax inquiries.  A Dec. 30, 2015 Memo (full text) announces that the Exempt Organizations Division will create a three-person team, rotated on an annual basis, to deal with "high profile" referrals.  These include "evidence or allegations involving a church."

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.