Arkansas Board of Health Rejects Legislature's Description of Abortion

The Northwest Arkansas Democrat reports today that the Arkansas state Board of Health is setting up a confrontation with the state legislature.  The Board voted 12-6 (with 5 abstentions) to avoid using the phrase "death of the unborn child" in final regulations it is adopting, even though that language appears in statutes it is implementing.  The Board substituted the phrase "termination of the pregnancy" in the regulations that implement six abortion laws passed last year and parts of an older statute. The governor and the state Department of Health director expect the legislature to reject the new language in the rule review process that follows.

Atheists Can Move Ahead With Challenge To Florida County Ten Commandments Monument

In American Atheists, Inc. v. Levy County, Florida, (ND FL, Jan. 27, 2016), a Florida federal district court held that American Atheists and one of its members have standing to challenge on Establishment Clause grounds a Ten Commandments monument that was placed on the Levy County courthouse grounds. It also held that plaintiffs have standing to assert an Equal Protection challenge after their application to erect a monument of their own near the Ten Commandments monument was rejected.  The court concluded that plaintiffs complaint plausibly states both 1st and 14th amendment claims. Religion News Service reports on the case.

Court Refuses To Allow Amended Complaint On Building Code Application To Home Bible Study Groups

In Salman v. Phoenix, (D AZ, Jan. 27, 2016), an Arizona federal district court refused to permit an ordained minister who used his home for weekly Bible study meetings  and worship to file a third amended complaint seeking damages and injunctive relief against the city's application of its building code to his activities.

Suit Challenges High School History Unit On Islam

The parents of a high schooler filed suit in a Maryland federal district court this week alleging that a two-week unit on Islam in the La Plata High School 11th grade World History class unconstitutionally promoted Islam over Christianity and Judaism.  The complaint (full text) in Wood v. Charles County Public Schools, (D MD, filed 1/27/2016), contends that plaintiffs' daughter was removed from class and given failing grades on assignments when she refused to complete work sheets on Islam that would have caused her to deny and insult her Christian beliefs. The suit contends that this violated the 1st and 14th Amendments, federal civil rights laws and state constitutional provisions.  Thomas More Law Center issued a press release on the case.

Report Traces New Role of The Satanic Temple

San Jose, California's Metroactive carried an interesting article yesterday titled How Satan Became the New Face of Secularism.  It chronicles the emergence of the Satanic Temple as a player in the church-state debate:

Originally conceived as a "poison pill in the church-state debate," ... the temple has since evolved beyond reactive political ploys. "Our message and beliefs are deeply sincere," says Jex Blackmore, who leads the group's highest-profile chapter in Mesner's native Detroit. "To us, Satan is a figure that embodies the characteristics that inform our deeply held beliefs, rather than a stab at the superstitious."

Adherents ...  embrace an atheistic philosophy that views Satan not as a deity but a literary symbol. Satan, in this brand of "ism," stands for reason, autonomy and rejection of superstition and arbitrary authority.... 

In the spirit of Satan as eternal outcast, activism remains central to the group's mission. Where religion has already breached the church-state divide, the Satanic Temple elbows in to remind lawmakers that those privileges necessarily extend to other beliefs. 

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)).