Israel Supreme Court Says Public-Funded Mikvehs Must Be Open To Reform and Conservative Conversions

According to Haaretz and Times of Israel, last Thursday a 3-justice panel of Israel's Supreme Court held that state-funded mikvehs  (ritual bath facilities) operated by Orthodox-controlled religious councils must be open for use  by the Conservative and Reform Jewish movements for their conversion ceremonies as well as for Orthodox conversions. Israel's Chief Sephardi Rabbi Yitzhak Yosef called the decision "outrageous."

Justice Scalia Dies; Author of Smith Decision

U.S. Supreme Court Justice Antonin Scalia died today at age 79. The New York Times eulogized him as a justice whose "transformative legal theories, vivid writing and outsize personality made him a leader of a conservative intellectual renaissance."  In the area of First Amendment religious freedom decisions, Justice Scalia will be particularly remembered as the author of the majority  opinion in Employment Division v. Smith (1990) which rejected use of the "compelling interest" test to validate neutral regulations of general applicability that burden religious practices.  He argued:

Precisely because "we are a cosmopolitan nation made up of people of almost every conceivable religious preference," ... and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind 

It was the reaction to this decision that led Congress, in  a nearly unanimous vote, to enact the Religious Freedom Restoration Act.

Magistrate Refuses To Dismiss Suit Against Anti-Falun Gong Organization

In Jingrong v. Chinese Anti-Cult World Alliance, 2016 U.S. Dist. LEXIS 16560 (ED NY, Jan. 28, 2016), a group of Falun Gong practitioners in Flushing Queens, New York sued an allegedly virulent anti-Falun Gong organization under federal civil rights laws.The court summarizes facts from plaintiffs' complaint:

Defendant CACWA is a not-for-profit corporation ... [whose] mission is to expose Falun Gong as an evil and dangerous threat to society.... CACWA's printed materials and websites indicate that CACWA was created to wage a "douzheng" campaign against Falun Gong practitioners in New York...  A key objective of a douzheng campaign is the forced conversion of targeted groups by compelling members to renounce their political or religious beliefs, supported by a propaganda campaign which, similar to that which was carried out in Nazi Germany  during World War II, characterizes its victims as appropriate targets of violence and abuse.... Originally initiated in China, the anti-Falun Gong campaign was extended into the United States in 2001 by then Communist Party ("Party") Chief Jiang Zemin.

In this opinion, a New York federal magistrate judge recommends refusing to dismiss plaintiffs' 42 USC Sec. 1985(3) claim, saying in part:

Plaintiffs' claims that they were repeatedly attacked ... make it plausible that Defendants "act[ed] at least in part for the very purpose of," ... infringing on Plaintiffs' right to intrastate travel. In terms of class-based animus, Defendants argue that Plaintiffs "misunderstand Defendants' mission" and describe their disagreement with Falun Gong as a mere difference in ideology.... This position must be rejected at least on this motion to dismiss. Frequent threats to "kill" and "dig out [the] hearts, livers and lungs" of Falun Gong practitioners... and the call for a douzheng campaign against Falun Gong, if true, describe religious-based animus sufficient to pursue a claim under § 1985(3).

The court also recommended refusing to dismiss plaintiffs' claims under 18 USC 248(a)(2) which provides a civil remedy against whomever, "by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship." Among other things, the court refused to accept for purposes of a motion to dismiss defendants' argument that Falun Gong is not a "religion."

Denial of Permit For Muslim Cemetery Was Arbitrary and Capricious

The Farmington (MN) Independent reported yesterday on a decision last month by a Dakota County, Minnesota trial court judge holding that the Castle Rock Township board of supervisors' decision to deny a permit for a Muslim cemetery was arbitrary and capricious. The Al Maghfirah Cemetery Association sued after the township said the cemetery would cause a loss of tax revenue and expressed concern that the cemetery would not be maintained and would not be open to the public.  It is estimated that the 73-acre cemetery site will accommodate 35,000 burials-- enough to serve the growing Minnesota Islamic community for 200 years.

Title VII Suit Dismissed Under Ministerial Exception

In Moreno v. Episcopal Diocese of Long Island, 2016 U.S. Dist. LEXIS 16543 (ED NY, Jan. 20, 2016), a New York federal magistrate judge recommended dismissing a Title VII action brought by an African-American Episcopal pastor who claimed that his dismissal from his position was the result of racial discrimination.  The court held that the ministerial exception doctrine applied, saying:

The Supreme Court clarified that the purpose of this exception is "not to safeguard a church's decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful — a matter 'strictly ecclesiastical,'—is the church's alone."

Vatican Sends Mixed Messages On Protection of Abuse Victims

Vatican Radio reports that the Pontifical Commission for the Protection of Minors released a communique on Feb. 8 at the end of its week-long Plenary Session. The document details existing and planned initiatives to educate clergy and others on the protection of minors.  However, The Guardian reported in a Feb. 10 article that a training course that is offered for newly appointed bishops sends a different message. Guidelines written by controversial French monsignor and psychotherapist, Tony Anatrella, a consultant to the Pontifical Council for the Family, that were released earlier this month by the Vatican for comment are part of the training program.  They tell new bishops that it is up to victims and their families whether to report abuse to police, adding:

According to the state of civil laws of each country where reporting is obligatory, it is not necessarily the duty of the bishop to report suspects to authorities, the police or state prosecutors in the moment when they are made aware of crimes or sinful deeds.

[Thanks to Scott Mange for the lead.] 

Tribal Council Balks At Posting of U.S. National Motto

According to the Smokey Mountain News, Rick Lanier, head of the U.S. Motto Action Committee, was startled at the reaction to his presentation last week to the Cherokee Tribal Council. Lanier has been trying to get the motto "In God We Trust" placed on government buildings around North Carolina, and his proposal is usually welcomed.  Members of the Cherokee Tribal Council and community members took Lanier to task for not understanding beliefs of the Cherokee, and for not realizing that the Cherokees are a sovereign nation and so would not want to put up the motto of the U.S. government.

Suit Says Zoning Change To Permit Chabad Development Violated Establishment Clause

The South Florida Sun Sentinel  reported yesterday on an unusual lawsuit filed by two Christian residents of Boca Raton, Florida alleging secret arrangements between the city, a developer and Chabad of East Boca to allow Chabad to build a $10 million synagogue and museum on Boca Raton's barrier island. The complaint (full text) in Gagliardi v. City of Boca Raton, Florida, (SD FL, filed 2/8/2016), alleges that the arrangement, undertaken in response to public objections to Chabad's locating in a different area of the city, violated the Establishment Clause, the due process and equal protection clauses, and the state constitution. The complaint alleges that the change in the city code to permit Chabad to locate on the barrier island (followed by variances and other actions to further the project) was a "complete and and express violation of the prohibition of advancing, endorsing or promoting of religion as set forth in the First Amendment of the United States Constitution."

City Sues Mosque Over Renovation and Expansion Plans

AP reports that the city of Lexington, Nebraska has sued a mosque to keep it from renovating and expanding its downtown property.  The Islamic Center of Dawson County wants to renovate two buildings it has occupied since 2008 and renovate an adjacent former laundromat building that it has acquired.  The city says the Islamic Center has never obtained an occupancy permit, and that it needs a conditional use permit to use the former laundromat building for religious purposes.  In December, City Council voted to deny the permit over concerns about parking and downtown redevelopment plans.  The city's lawsuit seeks penalties of $600 per day for building code and zoning violations, and asks for a temporary injunction against expansion into the laundromat building. The city is urging the Islamic Center to look for property in residential areas, but the mosque says those areas are far from where its members-- mostly Somalian and other African immigrants-- live.

Challenge To Ban On Marriage Ceremonies Without License Dismissed For Lack of Standing

In Carrick v. Snyder, (ED MI, Feb. 10, 2016), a Michigan federal district court dismissed for lack of standing a minister's First Amendment challenge to Michigan statutes that impose civil and criminal sanctions on anyone authorized to perform a marriage ceremony who does so for a couple who have not obtained a marriage license. (See prior related posting.) The court held that plaintiff had not alleged any actual intent to perform marriage ceremonies for couples without licenses.  According to the court:

plaintiff asserts an entirely hypothetical injury where he or unspecified others will not marry unspecified couples or groups because they might face hypothetical penalties from the state of Michigan.

Class Action Claims Valentine's Day Candies Misrepresented As Kosher

A class action lawsuit was filed this week in a California federal district court against See's Candy alleging that signage in the company's Los Angeles store misled plaintiff into believing that the Valentine's Day Heart Box of assorted chocolates was certified Kosher when in fact it was not.  The complaint (full text) in Weiss v. See's Candy Shops, Inc., (ND CA, filed 2/9/2016), asserts that plaintiff relied on a sign containing a kosher certified symbol which the store placed directly above the heart boxes of candy. The suit alleges breach of express warranty, unlawful business practices, violation of the Consumers Legal Remedy Act, false advertising, and fraudulent inducement. Law.com reports on the lawsuit.

Israel Appoints 7 New Muslim Religious Court Judges

In Israel yesterday, Israeli President Reuven Rivlin and Minister of Justice Ayelet Shaked spoke at a ceremony at the President's residence marking the appointment of seven new judges (Qadis) to Israeli Shariah courts that adjudicate Muslim personal status matters.  (Ministry of Foreign Affairs press release.) As reported by the Jerusalem Post, two new judges were appointed to the Shariah Court of Appeals, and five were appointed to Shariah regional courts.  Both Rivlin and Shaked expressed their hope that future appointment of Qadis would include women. Shaked said that she had asked the the sub-committee that recommends appointments for the names of female candidates. Apparently they did not produce any. A bill proposed in the Knesset last year would have required that at least one woman be on the list of recommended nominees, but the government coalition partner United Torah Judaism party vetoed the bill fearing it might set a precedent for Jewish religious court judges. (See prior posting.)

National Federation of Blind Settles EEOC's Religious Accommodation Lawsuit

The EEOC announced Monday that the National Federation of the Blind has settled a religious discrimination lawsuit brought by the Commission on behalf of a Hebrew Pentecostal bookkeeper who was refused religious accommodation.  NFB fired Joseph R. Massey II after telling him that he must work on certain Saturdays.  NFB refused Massey's request to instead work Sundays or late on week nights. Under the settlement NFB will pay $25,000 in damages, and agreed to an injunction against religious discrimination, adoption of a non-discrimination policy and training of managers and supervisors.

4th Circuit: Variance Denial For Church Does Not Violate RLUIPA

In Andon, LLC v. City of Newport News Virginia, (4th Cir., Feb. 9, 2016), the U.S. 4th Circuit Court of Appeals rejected the argument that a Board of Zoning Appeals' refusal to grant a zoning variance amounted to a substantial burden on religious exercise under RLUIPA. Seeking to use a building that did not meet zoning requirements as a church facility, Reconciling People Together in Faith Ministries entered a lease of it contingent on obtaining a variance. The court held:

Because the plaintiffs knowingly entered into a contingent lease agreement for a non-conforming property, the alleged burdens they sustained were not imposed by the BZA’s action denying the variance, but were self-imposed hardships....  A self-imposed hardship generally will not support a substantial burden claim under RLUIPA, because the hardship was not imposed by governmental action altering a legitimate, pre-existing expectation that a property could be obtained for a particular land use.

[Thanks to Will Esser via Religionlaw for the lead.]

Court Says Enforcement Motion Against Kim Davis Is Moot

A decision by a Kentucky federal district court yesterday may have nearly ended the ongoing legal saga of Rowan County Clerk Kim Davis who, until court intervention, refused to allow her office to issue any marriage licenses once same-sex marriage was legalized in the state. (See prior posting.)  As recounted by the court:

On September 3, 2015, the Court held Defendant Kim Davis in contempt.... After remanding Davis to the custody of the United States Marshal’s Service, five of six Rowan County Deputy Clerks told the Court that they would issue marriage licenses in her absence. The next day, multiple same-sex and opposite-sex couples obtained marriage licenses.... Because Davis’ Office issued these licenses, the Court found that she had purged herself of the contempt and ordered her release from custody on September 8, 2015.

However when Davis returned to work, she insisted on modifying the license forms being issued. At that point plaintiffs asked to court to order the deputy clerks to go back to issuing licenses in the original form.  In Miller v. Davis, (ED KY, Feb. 9, 2016), the court held:

Since Plaintiffs filed this Motion, the Court has received numerous Status reports [indicating] ... that the Rowan County Clerk’s Office is issuing marriage licenses to individuals eligible to marry as needed.... There has been no indication that Davis has continued to interfere with the issuance of marriage licenses since September 20, 2015.... Moreover, there is every reason to believe that any altered licenses issued between September 14 ... and September 20 ... would be recognized as valid under Kentucky law.... Under these circumstances, the Court finds that Plaintiffs’ request for relief is now moot. The Court will continue to monitor Davis and the Rowan County Clerk’s Office to ensure compliance with its Orders.

Liberty Counsel issued a press release on the decision.

New York Regulations Aim To End Conversion Therapy

On Feb. 6, New York Governor Andrew Cuomo announced a series of executive actions to prevent the practice of LGBT conversion therapy in the state:

The New York State Department of Financial Services is issuing regulations barring New York insurers from providing coverage for conversion therapy given to an individual under the age of 18. Additionally, the New York State Department of Health is prohibiting coverage of conversion therapy under New York’s Medicaid program and the New York State Office of Mental Health is issuing regulations prohibiting facilities under its jurisdiction from providing conversion therapy treatment to minors.

Christian News reports on the governor's actions.

Suit In Nation of Georgia Seeks Marriage Equality

According to yesterday's EurasiaNet, in the Caucasus nation of Georgia for the first time a lawsuit has been filed seeking to legalize same-sex marriage.  Plaintiff Giorgi Tatishvili filed suit in the Constitutional Court challenging the constitutionality of a Georgian law that defines marriage as being only between a man and a woman. The country's influential Orthodox Church which opposes same-sex marriage nevertheless on Sunday called for the government to provide Tatishvili protection, saying that violence against him is likely for bringing the suit. Minority rights activists in Georgia have not supported the lawsuit, fearing that it will increase hostility against and marginalization of the country's LGBT community. Pro-Russian groups have used the specter of legalized same-sex marriage in their opposition to Georgia joining the European Union.

Church's State Court Suit Challenges California Mandate For Health Insurance Abortion Coverage

A La Mesa, California church last week filed suit in state court against the California Department of Managed Health Care challenging a state requirement that all health insurance policies sold in California cover elective abortions, without exceptions.  The complaint (full text) in Skyline Wesleyan Church v. California Department of Managed Health Care, (Super. Ct., filed 2/4/2016), alleging violations of several state and federal constitutional provisions, contends:

the Mandate has created an inconsistent and untenable situation where Skyline Church and other religious employers do not have to provide health insurance coverage for contraceptives and infertility treatments but must pay for voluntary and elective abortions....

Defendants substantially burden Skyline Church's religious exercise when they force Skyline Church to choose between following its religious beliefs and suffering debilitating penalties under federal law or violating its conscience in order to avoid those penalties.

A similar challenge was filed in federal court by three other  churches last October. (See prior posting.)  ADF issued a press release announcing last week's state court lawsuit.

Victim Advocate Is Asked To Take Leave From Pontifical Commission on Protection of Minors

Crux reported Saturday that in the Vatican, British sexual abuse survivor Peter Saunders has been asked by other members of the Pontifical Commission for the Protection of Minors to take a leave of absence from the Commission.  Saunders, appointed to the Commission by Pope Francis last year, has become increasingly critical of the Pope. A Vatican official described the situation, saying that Saunders-- who founded Britain's National Association for People Abused in Childhood-- "has to decide if he's an advocate and campaigner [for survivors] instead of being an adviser." Cardinal Sean O'Malley, head of the Pontifical Commission says he has asked Saunders for advice on a possible victim survivor panel to work with the Commission.

Recent Articles of Interest

From SSRN:

• John D. Moore, The First Amendment Case for Corporate Religious Rights, (16 Nev. L.J. 1 (2015)).
• Micah Schwartzman, Chad Flanders & Zoe Robinson, The Rise of Corporate Religious Liberty, (Virginia Public Law and Legal Theory Research Paper No. 14 (Feb. 2016)).
• Howard Kislowicz, Developments in Religious Freedom: What Saguenay and Loyola Tell Us -- and Don't -- About the Trinity Western University Law School Cases, ((2016) 72 S.C.L.R. (2d) 75-95).
• Mark Hill QC, Reasonable Accommodation: Faith and Judgment, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2016/07, Feb. 2016).
• Ronan McCrea, Rights, Recourse to the Courts and the Relationship between Religion, Law and State in Europe and the United States, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2016/09, Feb. 2016).
• Jonathan Backer, Thou Shalt Not Electioneer: Religious Nonprofit Political Activity and the Threat 'God PACs' Pose to Democracy and Religion, (114 Mich. L. Rev. 619 (2016)).
• Chad Flanders, Insubstantial Burdens, (June 2015).

From SSRN (Islamic Law):

• Sardar M. A. Waqar Khan Arif, The Legal System of Sultans of Delhi: An Overview, (January 28, 2016).
• Sardar M. A. Waqar Khan Arif, Contractual Stipulations in Muslim Marriage Contract with Reference to Classic Islamic Law and the Case Study of USA,(January 27, 2016).

From SSRN (Same-sex marriage):

• Rodgrick Hickman, Will Love Win Again: When Religious Organizations, Government Subsidies, Adoption and the Establishment Clause Collide?,(February 4, 2016).
• Barbara J. Cox, From One Town's 'Alternative Families' Ordinance to Marriage Equality Nationwide, (California Western Law Review, Vol. 52, 2015).
• Charles E. Colman, About Ned, (129 Harv. L. Rev. F. 128 (2016)).

From SmartCILP:

• Eric Rassbach, Are Houses of Worship "House[s]" Under the Third Amendment?, [Abstract], 82 Tennessee Law Review 611-626 (2015).
• Elizabeth Sepper, Free Exercise Lochnerism, 115 Columbia Law Review 1453-1519 (2015).