State Trooper Fired For Proselytizing During Traffic Stop

According to WCPO News, last Thursday the Indiana State Police fired state trooper Brian Hamilton after a formal complaint was filed against him by motorist Wendy Pyle who charges that when Hamilton stopped her to give her a warning ticket for speeding, he also asked her what church she attends and whether she was saved.  The ACLU has filed suit over the incident.  Hamilton was sued in 2014 by another woman for similar proselytizing during a traffic stop. (See prior posting.)

Abstention Required In Suit For Defamation In Excommunication Proceedings

In Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered Augsburg Confession, (MN Sup. Ct., April 6, 2016), the Minnesota Supreme Court in a 3-2 decision (2 justices not participating), held that under the ecclesiastical abstention doctrine, the 1st Amendment prohibits holding a church and its pastors liable in a defamation action for statements made during church disciplinary proceedings seeking to excommunicate plaintiffs. The majority concluded:

Ultimately, adjudicating [plaintiffs'] claims would excessively entangle the courts with religion and unduly interfere with respondents’ constitutional right to make autonomous decisions regarding the governance of their religious organization.

Justice Lillehaug's dissenting opinion complained:

 Today the court creates what is, essentially, an absolute privilege to defame in “formal church discipline proceedings.” No matter how false and malicious the statement, and no matter how much the victim is damaged, there is no remedy whatsoever in Minnesota’s courts.

Pope Francis Releases Historic Document on Family Life

As reported by Crux, the Vatican today released Pope Francis' much anticipated Apostolic Exhortation titled Amoris Laetitia (The Joy of Love). Here is the full text of 256-page document which grew out of meetings of Catholic bishops from around the world in 2014 and 2015 on issues of the family. The Vatican has also released a Summary of each of the document's nine chapters.  Of particular interest is Chapter 8 which deals with the Church's treatment of divorced Catholics. The Summary of that Chapter reads in part:

 As far as discernment with regard to “irregular” situations is concerned, the Pope states: “There is a need ‘to avoid judgements which do not take into account the complexity of various situations’ and ‘to be attentive, by necessity, to how people experience distress because of their condition’” (AL 296). And he continues: “It is a matter of reaching out to everyone, of needing to help each person find his or her proper way of participating in the ecclesial community, and thus to experience being touched by an ‘unmerited, unconditional and gratuitous’ mercy” (AL 297). And further: “The divorced who have entered a new union, for example, can find themselves in a variety of situations, which should not be pigeonholed or fit into overly rigid classifications leaving no room for a suitable personal and pastoral discernment” (AL 298).

... [T]he Pope states that “the baptized who are divorced and civilly remarried need to be more fully integrated into Christian communities in the variety of ways possible, while avoiding any occasion of scandal”. “Their participation can be expressed in different ecclesial services… Such persons need to feel not as excommunicated members of the Church, but instead as living members, able to live and grow in the Church… This integration is also needed in the care and Christian upbringing of their children” (AL 299).

In a more general vein, the Pope makes an extremely important statement ... :“If we consider the immense variety of concrete situations, … it is understandable that neither the Synod nor this Exhortation could be expected to provide a new set of general rules, canonical in nature and applicable to all cases. What is needed is simply a renewed encouragement to undertake a responsible personal and pastoral discernment of particular cases, one which would recognize that, since ‘the degree of responsibility is not equal in all cases’, the consequences or effects of a rule need not necessarily always be the same” (AL 300).... 

Crux has also posted an analysis of the document

Hospital Offered Reasonable Accommodation To Employee Rejecting Flu Shot

In Robinson v. Children's Hospital Boston, (D MA, April 5, 2016), a Massachusetts federal district court dismissed a Title VII and state discrimination claim by a hospital emergency room worker who refused on religious grounds to be immunized for influenza. Plaintiff, who was apparently a follower of Nation of Islam, initially refused the vaccine because it contained pork products, but the hospital offered her a non-gelatin vaccine.  She continued to refuse on religious grounds, was granted a temporary medical leave and was allowed to look for a non-patient area position in the hospital. When she was unable to find another position, she was terminated.  The court held that the hospital had offered plaintiff reasonable accommodation and that  allowing her to remain in the patient area unvaccinated would have posed an undue hardship. Boston Herald reports on the decision.

Court Says Cross on County Seal Is Unconstitutional

In Davies v. Los Angeles County Board of Supervisors, (CD CA, April 6, 2016), a California federal district court granted a permanent injunction requiring removal of a cross from the Los Angeles County Seal.  Under threat of a lawsuit in 2004, the County redesigned its Seal replacing a cross that was on it with a depiction of the San Gabriel Mission. Subsequently the San Gabriel Mission added a cross on its building and the County Board voted to add the cross to the Mission's depiction on the Seal. The district court held that the addition of the cross violates both the Establishment Clause and the California Constitution's No Aid clause. Los Angeles Times reports on the decision.

Suit Challenges Constitutionality of Tax Code Parsonage Allowance

In a lawsuit filed this week, the Freedom From Religion Foundation is again challenging the constitutionality of the Internal Revenue Code's parsonage allowance.  The complaint (full text) in Gaylor v. Lew, (WD WI, filed 4/6/ 2016), contends that Section 107 of the Internal Revenue Code--which allows clergy to exclude from taxable income a housing allowance paid as part of their compensation-- violates the Establishment Clause.  The suit was brought by two FFRF officers who also received housing allowances.  One of the plaintiffs is an ordained minister who in prior years when employed by a church was able to claim the allowance.  In 2014, the 7th Circuit dismissed a similar suit on standing grounds because plaintiffs had not sought to exclude their FFRF allowances on their federal income tax returns or claim a tax refund. (See prior posting.) This time plaintiffs did file amended returns seeking a refund of taxes paid on their housing allowances. FFRF issued a press release announcing the filing of the lawsuit. [Thanks to Steven H. Sholk for the lead.]

FFRF Sues Connecticut City Over Refusal To Allow Winter Solstice Banner

A suit was filed two weeks ago by the Freedom From Religion Foundation challenging the refusal by Shelton, Connecticut authorities to allow FFRF to place a Winter Solstice display in a city park. The complaint (full text) in Freedom From Religion Foundation v. City of Shelton, Connecticut, (D CT, filed 3/22/2016) alleges that the city allows the American Legion to place a "heralding angels" religious display in Constitution Park every Christmas season. However the city refused to allow FFRF to put up a banner reading in part: "At this season of the Winter Solstice, let reason prevail. There are no gods, no devils, no angels, no heaven or hell...." The city thought the banner would be offensive to many. The complaint alleges free speech and equal protection violations.  FFRF issued a press release announcing the filing of the federal lawsuit. Yesterday WSHU News had a longer report on the lawsuit.

Court Says Minister Can Move Ahead With Challenge To Ban on His Transitional Housing Project

Martin v. Houston, (MD AL, April 6, 2016), involves an attempt by the Alabama legislature to close down a transitional housing arrangement consisting of a group of mobile homes for male sex offenders being released from prison.  The facility was set up by a Christian minister who imposed behavior standards on residents and required them to attend church services. The Alabama legislature passed a statute tailored only to apply to this facility. The law, whose coverage was limited to one county, declared a facility where more than one sex offender lived together to be a public nuisance.  In a suit by the minister operating the facility, an Alabama federal district court held that plaintiff had adequately alleged free exercise, bill of attainder and due process claims.  It held that the complaint had not adequately alleged a RLUIPA violation because the law does not involve government making individualized assessments of proposed property use.

9th Circuit: Denial of Exemption For Use of Cannabis Does Not Impose Substantial Burden On Religious Exercise

In Oklevueha Native American Church of Hawaii v. Lynch, (9th Cir., April 6, 2016), the U.S. 9th Circuit Court of Appeals held that a church and its founder were properly denied an exemption from federal laws that prohibit the possession and distribution of cannabis. Under RFRA, denial of an exemption does not impose a "substantial burden" on plaintiffs' exercise of religion because the primary sacrament of the church is peyote.  Plaintiffs consume cannabis only as a substitute. They do not claim that peyote is unavailable or that cannabis serves a unique religious function.

Episcopal Church Still Holds Title To Property of Break-Away Diocese

In Diocese of San Joaquin v. Gunner, (CA App., April 5, 2016), a California state appeals court held that applying neutral principles of law, the property of a break-away diocese still belongs to the Episcopal Church. It held that while the trial court wrongly held that diocese held the property in trust for the Episcopal Church, nevertheless the property still belongs to the Episcopal Church because the purported transfer of the property to the break-away diocese was invalid:

Schofield [bishop of the break-away diocese] was attempting to change the title holder of the property in dispute from the corporation sole known as The Protestant Episcopal Bishop of San Joaquin to the corporation sole known as The Anglican Bishop of San Joaquin. However, because the amendment changing the name of the corporation sole to The Anglican Bishop of San Joaquin was invalid, no corporation sole known as The Anglican Bishop of San Joaquin existed when these deeds were executed and recorded. 

New Study Surveys Restrictions On Women Wearing Religious Attire

The Pew Research Center yesterday released a report (full text) titled Restrictions on Women's Religious Attire.  It concludes:

50 of the 198 countries and territories included in the study had at least one law or policy regulating women’s religious attire in 2012 and 2013..... About three-quarters of those countries (39 of the 50, or 78%) had a law or policy limiting women’s ability to wear religious attire, while about a quarter (12 of the 50, or 24%) had at least one law or policy requiring women to wear particular attire. Some of these laws or policies applied nationwide, while others were imposed at the provincial, state or local level.   One country – Russia – had [both in different areas].

The study also found that in 2013, some 50 countries had at least one incident where women were harassed by private individuals either for wearing religious dress, or for not conforming to local customs concerning religious dress.

Tennessee Legislature Passes Bill Making the Holy Bible the Official State Book

Yesterday the Tennessee General Assembly passed HB615, designating the Holy Bible as the state's "official book." AP reports:

Sponsors argue the bill seeks to honor the historical significance of the Bible in Tennessee's history rather than serving as a government endorsement of religion.

But opponents say the measure trivializes the Bible by placing it alongside other Tennessee symbols like the small mouth bass as the state sport fish, the cave salamander as the state amphibian and the honeybee as the state agricultural insect.

The state's Attorney General in an Opinion issued in April (full text) concluded that the bill is unconstitutional, and Governor Bill Haslam has expressed doubts about the bill. It is unclear whether or not he will veto it.

Mississippi Governor Signs "Freedom of Conscience" Bill Protecting Anti-LGBT Practices

CBS News reports that Mississippi Governor Phil Bryant today signed into law House Bill 1523, the Freedom of Conscience From Government Discrimination Act passed last week by the legislature. The law protects various actions of government and private businesses based on religious or moral beliefs that marriage is a union of one man and one woman, that sexual relations should be reserved to heterosexual marriage, or that gender is an immutable characteristic determined at birth. (See prior posting). In his signing statement (full text), Bryant said in part:

This bill does not limit any constitutionally protected rights or actions of any citizen of this state under federal or state laws.

Reacting to the governor's statement, the ACLU said (full text) in part:

This is a sad day for the state of Mississippi and for the thousands of Mississippians who can now be turned away from businesses, refused marriage licenses, or denied housing, essential services and needed care based on who they are. This bill flies in the face of the basic American principles of fairness, justice and equality and will not protect anyone's religious liberty.

Brazilian Court Trains Clergy As Mediators

Religion News Service reports on an experimental mediation program instituted by the courts in the Brazilian state of Goias.  In a program called "Mediar e Divino" ("To Mediate is Divine"), the court is training evangelical pastors, Catholic priests and Protestant ministers to mediate in family law cases and disputes among neighbors. Brazilian courts face massive backlogs of cases.  In Goias state alone, 800,000 new cases were filed last year.

Army Grants Sikh Soldier Accommodation After His Preliminary Court Victory

As previously reported, last month the D.C. federal district court issued a preliminary injunction barring the Army from subjecting Sikh Army officer Simratpal Singh to any non-standard or discriminatory testing for his helmet and gas mask.  Now without mentioning the court decision, the Army has issued a Memorandum (full text) dated March 30 granting Singh an accommodation, subject to various conditions. The Memorandum from Assistant Secretary of the Army Debra Wada to Singh reads in part:

I have considered your request for a religious accommodation to permit you to wear a beard, turban, and uncut hair in observance of your Sikh faith.... I grant your request for an exception to Army personal appearance and grooming standards, subject to the limitations described below....

While assigned or performing non-hazardous duties, you may wear a beard, turban, and uncut hair in a neat and conservative manner that presents a professional and well-groomed appearance. The bulk or your hair, beard, or turban may not be such that it impairs your ability to wear the Army Combat Helmet ... or other protective equipment....

Because of the Army's strong interest in maintaining good order and discipline, the Army intends to develop clear uniform standards applicable to Soldiers who have received a religious accommodation. Until such standards are published, you may wear a black turban (or under turban, as appropriate).... 

The Memorandum goes on to specify precise hair and beard lengths, and says that Singh's commander is to provide quarterly assessments of the effect of the accommodation on unit cohesion and morale, good order and discipline, health and safety, and individual and unit readiness. West reports on the Army's action.

UPDATE: Stars and Stripes reported on April 11 that 3 additional Sikh enlistees have been granted similar accommodations.

Wolcott Replaces Glendon On USCIRF

In a March 21 press release, the U.S. Commission on International Religious Freedom announced that at the recommendation of Senate Majority Leader Mitch McConnell, on March 14 Ambassador Jackie Wolcott was appointed for a two-year term to USCIRF to succeed Commissioner Mary Ann Glendon whose term expires on May 14. During most of 2015, Wolcott served as USCIRF's executive director. Prior to that she held a number of State Department positions including a Deputy Assistant Secretary position in which she was responsible for human rights issues arising in the United Nations.

Qualified Immunity For Commissioners Asking Religious Questions To Constable Candidate

In Lloyd v. Birkman, (WD TX, April 1, 2016), a Texas federal district court held that members of the Williamson County (Texas) Commissioners' Court enjoyed qualified immunity in a suit by an unsuccessful candidate for County Constable.  The position was normally an elected one, but the current Constable resigned and the next election was over one year away. Thus under state law the Commissioners had the power to appoint a new Constable to serve until the next general election.  During interviews for the position, Commissioners asked candidates about their church membership, views on gay marriage and abortion, and political ideology. Plaintiff contended that these questions violated his rights of free expression and association, as well as the free exercise and establishment clauses. The court, however, concluded that there was not "clearly established law" that this line of questioning was improper in the context of private interviews for an interim appointment to a normally elective position. (See prior related posting.)

Business Owner Unsuccessful In Suing Churches That Opposed New Strip Club

In Harrington v. Hall County Board of Supervisors, (D NE, March 31, 2016), a Nebraska federal district court dismissed a number of claims brought by the owner of an adult entertainment company against two churches that circulated a petition opposing attempts to open a strip club in Hall County, Nebraska. The court also dismissed claims against a director of one of the churches.  The adult entertainment company owner alleged that the churches engaged in a conspiracy to adopt and enforce an unconstitutional zoning resolution. Plaintiff also alleged violations of the antitrust laws, defamation, tortious interference with business relationships, infliction of emotional distress, and negligence.  The court additionally rejected the claim that individual members of the County Board of Supervisors violated the Establishment Clause when at a public hearing they thanked supporters of the petition for supporting Christian values.

Recent Articles of Interest

From SSRN:

• Paul Horwitz, Against Martyrdom: A Liberal Argument for Accommodation of Religion, (Notre Dame Law Review, Vol. 91, No. 4, 2016).
• Tim S. Braimah, Divorcing Sexual Orientation from Religion and Politics: Utilizing the Convention Grounds of Religion and Political Opinion in Same-Sex Oriented Asylum Claims, (International Journal of Refugee Law, 2015).
• John D. Blum, Restoring the Parameters of Public Health in a Time of Hobby Lobby and Ebola: The Case for a Wellness Account, (2 Belmont Law Review 119 (2015)).
• John Fahner, Free Conscience in Decline: The Insignificance of the Free Exercise Clause and the Role of the Religious Freedom Restoration Act in the Wake of Hobby Lobby, (2 Belmont Law Review 185 (2015)).
• M. Cathleen Kaveny, Law, Religion, and Conscience in a Pluralistic Society: The Case of the Little Sisters of the Poor, (Boston College Law School Legal Studies Research Paper No. 394, March 2016).
• Vincy Fon, A Talmudic Bankruptcy Solution: The CCC Principle, (March 21, 2016).

From elsewhere:

• Justice, The Legal Magazine of the International Association of Jewish Lawyers and Jurists, No. 57, Winter 2015-2016.

Recent Prisoner Free Exercise Cases

In Navarro v. Herndon, 2016 U.S. Dist. LEXIS 39682 (ED CA, March 25, 2016), a California federal magistrate judge recommended that a Native American inmate be allowed to move ahead with his complaints regarding denial of access to a sweat lodge, to a  spiritual advisor and to religious property.

In Seagraves v. Treachler, 2016 U.S. Dist. LEXIS 40992 (D NJ, March 29, 2016), a New Jersey federal district court permitted a Muslim inmate to move ahead with his free exercise and RLUIPA claims that the prison chaplain denied his request for vegetarian meals.

In Bey v. Pennsylvania Board of Probation & Parole, 2016 U.S. Dist. LEXIS 41017 (MD PA, March 29, 2016), a Pennsylvania federal district court adopted a magistrate's recommendations that an inmate who was a member of the Moorish Science Temple of America and objected to the Therapeutic Community program in which he was required to participate can move ahead with an establishment clause, but not a free exercise clause, claim.

In Presley v. Scott, 2016 U.S. Dist. LEXIS 40107 (ND AL, March 28, 2016), an Alabama federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 41087, March 2, 2016) and dismissed for failure to exhaust administrative remedies a Native American inmate's complaint that authorities seized his medicine bag and the refused to allow him to retrieve religious objects when he was transferred.

In Hoever v. Bellelis, 2016 U.S. Dist. LEXIS 41168 (ND FL, March 29, 2016) a Florida federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 41174, Feb. 24, 2016) and dismissed an inmate's complaint that he was denied his English version of the Bible and two devotional books for 26 days.  During that time he had his own Spanish Bible and could pray.

In Givens v. Vaughn, 2016 U.S. Dist. LEXIS 41208 (SD IL, March 29, 2016), an Illinois federal district court allowed an African American Hebrew Israelite inmate to move ahead with complaints regarding denial of group Sabbath day services and ending of his kosher diet as well as retaliation and equal protection claims.

In Thomas v. Dakota County Law Enforcement Center, 2016 U.S. Dist. LEXIS 41596 (D MN, March 29, 2016), a Minnesota federal district court held that because plaintiff, a Muslim inmate, named defendants only n their official capacities, his only claim that can move forward is one that the county had a policy of prohibiting Muslim prisoners from holding religious gatherings.

In Uduko v. Cozzens, 2016 U.S. Dist. LEXIS 42048 (ED MI, March 30, 2016), a Michigan federal district court, while dismissing claims against a number of defendants, allowed an inmate who was Nigerian and a Protestant to move ahead with claims based on retaliation and discrimination against the prison chaplain who barred defendant from leading Protestant services or Bible or study groups, and later barred him from prophesying or praying for others in group services.

In Sanders v. Cain, 2016 U.S. Dist. LEXIS 42069 (MD LA, March 28, 2016), a Louisiana federal district court dismissed an inmate's complaint that Mormons could not worship together on Sundays at the main prison complex and were denied club status, and that his transfer to another part of the prison prevented him from congregating or holding fund raisers with other Mormons.

In Johnson v. Ely State Prison, 2016 U.S. Dist. LEXIS 42378 (D NV, March 30, 2016), a Nevada federal district court, while disagreeing in part with a magistrate's reasons, agreed that material facts remain for the fact finder on a Muslim inmate's complaint that he was prevented from attending Jum'ah for three years while held as a high risk inmate serving disciplinary sanctions.