Court Allows Challenges To NJ Law On Sale of Headstones To Proceed

In Roman Catholic Archdiocese of Newark v. Christie, (D NJ, April 29, 2016), a New Jersey federal district court refused to dismiss some of the challenges by the Catholic Archdiocese to a New Jersey statute making it illegal for religious groups that operate cemeteries to also sell monuments or private  mausoleums.  The court held that, even though the statute is subject only to rational-basis review, it is premature to dismiss claims that the law violates the equal protection and due process clauses of the U.S. Constitution.  The court did however dismiss plaintiffs' contracts clause and privileges or immunities clause challenges. The statute was enacted last year (see prior posting) after the Archdiocese went into competition with for-profit monument makers. New Jersey Law Journal reports on the decision. [Thanks to Steven H. Sholk for the lead.]

5th Circuit: Texas Prisons' Grooming and Headwear Policies Violate RLUIPA

Reflecting the approach taken last year by the U.S. Supreme Court in Holt v. Hobbs (see prior posting), yesterday the U.S. 5th Circuit Court of Appeals in Ali v. Stephens, (5th Cir., May 2, 2016) held that the Texas prison system's grooming and headwear policies violate a Muslim inmate's rights under RLUIPA.  The court affirmed the trial court's grant of declaratory and injuctive relief to allow an observant Muslim inmate to grow a 4-inch beard and wear his kufi throughout the prison facility.

Cert. Denied In Challenge To Alabama Prisoner Grooming Restrictions

The U.S. Supreme Court yesterday denied review in Knight v. Thompson, (Docket No. 15-999, cert. denied 5/2/2016). (Order List.) In the case, the U.S. 11th Circuit Court of Appeals upheld the Alabama prison system's grooming requirement that prohibited Native American inmates from wearing long hair, even for religious reasons. (See prior posting.) AP reports on the denial of certiorari.

USCIRF Issues 2016 Annual Report On Religious Freedom Abuses Around the World

The U.S. Commission on International Religious Freedom today released its 2016 Annual Report (full text). The Report recommends that the Secretary of State re-designate 9 countries as "countries of particular concern," i.e. countries that engage in or tolerate systematic, ongoing and egregious violations of religious freedom: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, Turkmenistan, and Uzbekistan. It also recommends adding 8 other countries as CPC's: Central African Republic, Egypt, Iraq, Nigeria, Pakistan, Syria, Tajikistan, and Vietnam. (In fact on April 14, the State Department did add Tajikistan. See prior posting.)

USCIRF designated 10 countries as Tier 2 nations that have serious religious freedom issues, but which do not rise to the level of CPC's: Afghanistan, Azerbaijan, Cuba, India, Indonesia, Kazakhstan, Laos, Malaysia, Russia, and Turkey.

In making its recommendations, USCIRF said in part:

Non-state actors, such as transnational or local organizations, are some of the most egregious violators of religious freedom in today’s world. In some places, such as the Central African Republic and areas of Iraq and Syria, governments are either non-existent or incapable of addressing violations committed by non-state actors. USCIRF has concluded that the CPC classification should be expanded to allow for the designation of countries such as these, where particularly severe violations of religious freedom are occurring but a government does not exist or does not control its territory. Accordingly, USCIRF’s CPC recommendations reflect that approach. 

Recent Articles of Interest

From SSRN:

• Caroline Mala Corbin, Speech or Conduct: The Free Speech Claims of Wedding Vendors, (Emory Law Journal, Vol. 65, No. 241, 2016).
• Elizabeth Sepper, Gays in the Moralized Marketplace, (7 Ala. C.R. & C.L. L. Rev. 129 (2015)).
• Mark L. Movsesian, Of Human Dignities, (Notre Dame Law Review, Vol. 91, No. 4, 2016).
• Richard W. Garnett, Wrongful Discrimination? Religious Freedom, Pluralism, and Equality, (Timothy Shah, Thomas Farr & Jack Friedman, eds., Religious Freedom and Gay Rights: Emerging Conflicts in North America and Europe (Oxford University Press 2016)).
• Udo Schuklenk & Ricardo Smalling, Why Medical Professionals Have No Moral Claim to Conscientious Objection Accommodation in Liberal Democracies, (Journal of Medical Ethics 2016 doi:10.1136/medethics-2016-103560).
• Mahalia Jackman, They Called it the ‘Abominable Crime’: An Analysis of Heterosexual Support for Anti-Gay Laws in Barbados, Guyana and Trinidad and Tobago, (Sex Res Soc Policy, Vol. 13:130–141 (2016)).
• Annyssa Bellal, Beyond the Pale? Engaging the Islamic State on International Humanitarian Law, (Yearbook of International Humanitarian Law (Forthcoming)).
• Norman P. Ho, Confucian Jurisprudence, Dworkin, and Hard Cases, (Washington University Jurisprudence Review, Vol.10.1, Forthcoming).

From SmartCILP:

• Michael Scaperlanda, Scalia's Short Reply To 125 Years of Plenary Power, 68 Oklahoma Law Review 119-136 (2015).
• Symposium: Christianity and Human Rights. Articles by John Witte, Jr., Justin J. Latterell, Desmond M. Tutu, Nigel Biggar, Stanley Hauerwas, Robert M. Franklin, John Witte, Jr., Jean Porter, Russell Hittinger and Helen M. Alvare, 30 Journal of Law & Religion 353-495 (2015).

Recent Prisoner Free Exercise Cases

In Isakhanova v. Muniz, 2016 U.S. Dist. LEXIS 55649 (ND CA, April 26, 2016), a California federal district court allowed a suit by the mother of a Muslim inmate to proceed.  While visiting her son in prison, the mother was held for several hours on suspicion of passing tobacco to her son. While being held she was questioned extensively about her religious beliefs and practices.

In Sims v. Wegman, 2016 U.S. Dist. LEXIS 56251 (ED CA, April 27, 2016), a California federal magistrate judge allowed an inmate to move ahead with a complaint that he was denied a diet that complies with Nation of Islam requirements and was also denied a kosher diet as an alternative.

In Beaudette v. Winfrey, 2016 U.S. Dist. LEXIS 56275 (ND CA, April 26, 2016), a California federal district court dismissed with leave to amend an inmate's claim that some of his Christian Identity religious material was removed when he was moved to administrative segregation, and the material was never returned to him.

In James v. Taylor, 2016 U.S. Dist. LEXIS 55811 (MD GA, April 27, 2016), a Georgia federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 56612, March 22, 2016) and dismissed a Muslim inmate's claim against the prison warden alleging that plaintiff was denied vegan meals required by his religion during a Mental Health Evaluation.

In Williams v. Cox, 2016 U.S. Dist. LEXIS 56714 (SD GA, April 28, 2016), a Georgia federal magistrate judge recommended dismissing as moot a complaint by a Hebrew Israelite inmate that he was refused a work proscription for the Messianic/Sabbatarian date (as opposed to the Jewish date) for observance of Shavuot.

In Davilla v. Watts, 2016 U.S. Dist. LEXIS 56721 (SD GA, April 28, 2016), a Georgia federal magistrate judge recommended  that plaintiff be allowed to move ahead with free exercise, RFRA and equal protection objections to the elimination of "Spiritual Mass" for Santeria inmates and other interferences with Santeria practices.

In Wolcott v. Board of Rabbis of Northern & Southern California, 2016 U.S. Dist. LEXIS 56847 (ED CA, April 28, 2016), a California federal magistrate judge granted an inmate leave to file a third amended complaint alleging that Jewish inmates are allowed to possess Tefillin and a Tallit Katan only once a week in the chapel.

In Bayadi v. United States, 2016 U.S. Dist. LEXIS 57232 (WD VA, April 29, 2016), a Virginia federal district court dismissed as frivolous an inmate's claim that language in the state constitution establishes Christianity as the state religion.

In Evans v. Aramark Food & Commissary Services, 2016 U.S. Dist. LEXIS 57418 (SD NY, April 28, 2016), a New York federal court dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint that he was served insufficient amounts of food during Ramadan.

When Are Prison Chaplains "State Actors"?

In an opinion recommending dismissal of an inmate's First Amendment and RLUIPA claims, a California federal magistrate judge held that some decisions by prison staff chaplains do not amount to "state action" for constitutional purposes.  In Wolcott v. Board of Rabbis of Northern and Southern California, 2016 U.S. Dist. LEXIS 57528 (ED CA, April 29, 2016), plaintiff sued the former and current Jewish chaplains at the California Substance Abuse Treatment Facility because he was not allowed to convert to Judaism.  The refusal to allow his conversion stemmed from policies of the Southern California Board of Rabbis and the California Commission of Jewish Chaplains -- to whom the various Department of Corrections Jewish Chaplains report-- that disallow conversion by inmates serving life sentences. The court concluded that the chaplains were not state actors, finding that neither the "public function" nor the "joint action" doctrines applied here. The opinion reads in part:

Whether an inmate is a follower of a particular religion is an ecclesiastical answer to a religious doctrine, not an administrative determination; whereas a decision whether an inmate should be put on an internal prison list as following a particular religion is an administrative determination..., and Plaintiff does not allege that he is not on the list identifying him as Jewish for purposes within the facility, nor do his allegation imply this....

The only religious activities that Plaintiff alleges have been infringed on are that he was not allowed to attend [clergy visits from] the Aleph Institute ... [or] purchase religious packages [from] the Aleph Institute that regarded him as a non-Jew.... Plaintiff was prohibited from engaging in religious activities in these instances by the Aleph Institute -- which is an outside, religious organization that has not been, and cannot be, pursued in this action.

Christian Retreat Center Not Subject To Hotel Room Tax

In Susquehanna County Commissioners v. Montrose Bible Conference, (PA Commonwlth. Ct., April 21, 2016), a 3-judge appellate court panel upheld a lower court's ruling that a retreat center operated by a Christian religious organization is not subject to the county's hotel room rental tax.  While most of the decision focused on a procedural issue, in a footnote the court set out the substantive conclusion:

Even if the County had preserved its issue in a post-trial motion, the trial court properly concluded that MBC is not subject to the hotel tax because the County failed to establish that MBC is a “hotel.”... [S]ection 3 of the Ordinance defines a “hotel” as a structure that holds itself out “as being available to provide overnight lodging . . . for consideration to persons seeking temporary accommodations.” Here, MBC holds itself out as a religious facility and does not provide lodging to persons merely seeking overnight accommodations.

PennRecord reports on the decision.

GITMO Judge Defers Lifting Order Accommodating Muslim Detainees After Remarks By Top Brass

As previously reported, early last year a military judge at Guantanamo Bay issued an interim order requiring authorities to stop using female guards to move 5 defendants held in a top-secret Guantanamo unit back and forth to meetings with their lawyers. Defendants had been refusing to meet with counsel because physical contact with the female guards violates their Muslim religious beliefs.  AP now reports that this past Thursday the military judge, Army Col. James Poh, issued a 39-page ruling (not yet publicly released) saying that he will eventually lift the order.  However he postponed doing so for six months to show his displeasure at criticism of the original order leveled by Defense Secretary Ash Carter and Joint Chiefs of Staff Chairman Gen. Joseph Dunford during testimony before Congress in October. They called the judge's order outrageous.  Poh says that this kind of statement could be seen as an improper attempt to influence the Military Commission.  In his ruling, he said in part:

These comments were entirely inappropriate. They crossed the line. Senior military leaders should know better than to make these kinds of comments in a public forum during an ongoing trial.

He added that he did not take this step lightly, and might lift the order sooner if senior military officials took "appropriate action."

UPDATE: Here is the full text of the Military Commissions' ruling in United States v. Khalid Shaikh Mohammad, (MCTJ, April 28, 2016).

President Sends Greetings For Orthodox Christian Easter

In a White House press release (full text) yesterday, President Obama sent greetings to members of the Orthodox Christian community who are celebrating the Orthodox Easter this week end, saying in part:

Michelle and I extend our best wishes to members of the Orthodox Christian community here in America and around the world as they observe Holy Friday and the Feast of the Resurrection....

We lift up in prayer the members of the Orthodox community who have been persecuted for their faith and subjected to unspeakable acts of violence, and we seek the release of those who have been kidnapped.   We remember those who have been driven from their homelands and who have seen their religious institutions desecrated or destroyed. 

Michigan City Restores Cross On Sand Dune-- Sort Of...

As previously reported, in a controversial move last year that was unsuccessfully challenged by citizens, the city of Grand Haven, Michigan agreed to remove a 48 foot cross that had been displayed periodically on a city-owned sand dune for 50 years. The city turned the cross into a Coast Guard anchor. However, according to a report in the Washington Free Beacon, this week the Grand Haven City Council (with one of last year's councilmen having lost re-election) has now voted 3-2 to add a yardarm to a flag pole on the sand dune.  When the side arm is extended, the flag pole will look like a cross. That will happen on several holidays each year.

EEOC Sues Hospital Over Arbitrary Deadline For Religious Accommodation Requests

The EEOC announced today that it has filed a religious discrimination lawsuit against Mission Hospital based in Asheville, North Carolina.  At issue are requests by 3 employees for religious exemptions from the hospital's requirement that all employees receive the flu vaccine by December each year.  The hospital allows religious exemptions, but requires that the request be made by Sept. 1. The employees here made their requests after the deadline. The requests were denied and the employees were fired.  According to the EEOC:

An arbitrary deadline does not protect an employer from its obligation to provide a religious accommodation. An employer must consider, at the time it receives a request for a religious accommodation, whether the request can be granted without undue burden.

Alabama City Outlaws Restroom Use Conforming To Gender Identity That Differs From Birth Certificate

In the latest chapter in the "bathroom wars," on Tuesday the Oxford, Alabama City Council unanimously passed Ordinance No. 2016-18 (full text) barring anyone from using rest rooms or changing facilities that do not correspond to the gender stated on the person's birth certificate. A violation is punishable by a $500 fine and up to 6 months in jail.  As reported by the Anniston Star, Council's action came in response to last week's announcement by the department store chain Target that their employees and customers are welcome to use the restroom or fitting room facility that corresponds with their gender identity. Target has a store in Oxford.  Prosecutions under the new ordinance will only occur only if a violation is reported by a witness or committed in the presence of a police officer.  After passage of the ordinance, city council president Steven Waits read from a prepared statement, saying in part that the ordinance was enacted "to protect our women and children."

Secretary Kerry Speaks on Impact of Religion on U.S. Foreign Policy

On Tuesday, Secretary of State John Kerry delivered a lengthy address (full text) (video) at Rice University's Baker Institute for Public Policy focusing on the impact of religion on U.S. foreign policy. He said in part:

Religion today remains deeply consequential, affecting the values, the actions, the choices, the worldview of people in every walk of life on every continent and, obviously, also here at home. It is a part of what drives some to initiate war, others to pursue peace; some to organize for change, others to cling desperately to old ways, resist modernity; some to reach eagerly across the borders of nation and creed, and others to build higher and higher walls separating one group from the next.

But religion is not only pervasive; it is also complex, especially when viewed from the ground up. Most religions are internally diverse, reflecting multiple schools of thought, regional variations, and complicated histories. And the actions of religious communities, like all communities, are embedded in the political, economic, and cultural environment in which they are carried out. That is why religion as it is actually lived does not always look the way that we expect or have the impact that we anticipate. It is also why our engagement with religious actors has to extend beyond designated leaders to the rank and file.

Now, historically the State Department has tended to downplay the role of religion or pay attention only when religion is deemed a problem, a threat, a challenge. The department has not traditionally had the resources or made the necessary commitment to systematically analyze the importance that religion holds for the success or failure of our foreign policy.... Now that has changed, and the purpose of my remarks tonight is to explain what we now do differently and why those differences matter.

[Thanks to Blog from the Capital for the lead.] 

Armed Forces Court of Appeals Hears Oral Arguments On Court Martial For Refusing To Remove Religious Signs

Yesterday the U.S. Court of Appeals for the Armed Forces heard oral arguments in United States v. Sterling. In the case, the U.S. Navy-Marine Corps Court of Criminal Appeals upheld a court martial conviction of a marine corps member for disobeying a lawful order to remove signs containing Biblical verses that she had taped up around her desk.  (See prior posting.)  Stars and Stripes summarizes some of yesterday's argument:

Keller [representing the government] argued the Sterling was not punished for putting up religious signs, but rather for defying orders....

He also argued because Sterling never sought a religious accommodation and only raised the religious protections issue later, there was no argument that her religious freedoms were “substantially burdened” under the Religious Freedom Restoration Act.

Clement [representing Lance Cpl. Monifa Sterling] rebutted that because she invoked religious freedom later doesn’t mean that it’s not a fair consideration.

One Suit Against Scientology Proceeds As Leader Threatens Another (Unrelated) Lawsuit

In Los Angeles yesterday, a California state trial court judge refused to dismiss a suit brought against the Church of Scientology International and its Religion Technology Center by former church member Laura Ann DeCrescenzo.  According to MyNews L.A., plaintiff, who began to volunteer for the Church at age 6 or 7 and later became a member of its elite Sea Org, alleges that she was forced to work long hours before she was a teen and was forced to have an abortion at age 17.  The suit also sets out claims of false imprisonment, intentional infliction of emotional distress, unfair business practices and wage-and-hour violations.

Meanwhile, lawyers for Scientology's leader David Miscavige are threatening to file suit against the publisher of a book coauthored by Miscavige's own father titled Ruthless: Scientology, My Son David Miscavige, and Me. According to the Christian Examiner, the book is scheduled to be released in the United Kingdom next week. A demand letter from Miscavige's lawyers says that the book contains false, malicious, misleading and highly defamatory statements.

Christian Group Sues Challenging University's Speech Permit Policy

A Christian student organization at North Carolina State University this week filed suit against University officials challenging the school's Speech Permit Policy that requires students to obtain prior written permission before distributing leaflets or soliciting passersby. According to the complaint (full text) in Grace Christian Life v. Woodson, (ED NC, filed 4/26/2016), Grace Christian Life's members and staff initiate conversations with students about religion. These conversations take place in and around the Student Union. University officials informed the group that the University's Speech Permit Policy applies to these conversations. Plaintiffs allege that the Policy has not been similarly enforced against other groups, and contends that the policy and its enforcement infringe Christian Life's 1st and 14th Amendment rights. the Raleigh News & Observer, reporting on the case, quotes University officials as claiming that the suit is "frivolous and without merit."

European Court Says Turkey Violated Rights of Alevi Community

In  İzzettin Doğan and Others v. Turkey, (ECHR, April 26. 2016), the European Court of Human Rights in a Grand Chamber judgment held that Turkey violated Article 9 (freedom of religion) and Article 14 (prohibition on discrimination) of the European Convention on Human Rights when it refused to recognize and grant support to the Alevis (the country's second largest faith group) as a separate religious community. As described in the court's press release on its decision, the lawsuit by 203 Turkish nationals asked that

the Alevi community be provided with religious services in the form of a public service; that Alevi religious leaders be recognised as such and recruited as civil servants; that the cemevis (the places where Alevis practise their religious ceremony, the cem) be granted the status of places of worship; and that State subsidies be made available to their community. Their requests were refused on the grounds that the Alevi faith is regarded by the authorities as a religious movement within Islam, more akin to the “Sufi orders”.

The court found the Art. 9 violation by a vote of 12-5 and the Art. 14 violation by a vote of 15-1. According to AFP, there have been improvements in the Alevis position since the suit was first filed in 2010, with a Turkish court in August ruling that the government should cover all the expenses of Alevi places of worship. Daily Sabah says that last year Prime Minister Ahmet Davutoğlu said that Cemevis will be granted legal status. (See prior related posting.)

Indian Court Says Muslim Women Taking Pre-Med Test May Wear Hijabs

In the Indian state of Kerala yesterday, a High Court judge issued an order allowing Muslim women to wear a hijab while taking the All India Pre-Medical Test (AIPMT-2016). However they must present themselves a half hour early for frisking.  NDTV reports that the order came during a hearing on a challenge to the dress code for the test prescribed by the Central Board of Secondary Education.  The court said that the prescribed dress code amounts to a restriction on religious liberty.

Amicus Briefs In Support of Petitioner In Trinity Lutheran Case Are Now Available

Next term, the U.S. Supreme Court will hear oral arguments in Trinity Lutheran Church of Columbia, Inc. v. Pauley challenging Missouri's exclusion under its "no aid" clause of churches from its secular grant program for playground improvements. (See prior posting.) The deadline for amicus briefs in support of petitioner has now passed, and 25 briefs in support of Trinity Lutheran Church have been filed, along with one amicus brief in support of neither side. Links to all of the amicus briefs are available from the SCOTUSblog case page for the case.  Respondent's brief is not due until June 28, with amicus briefs supporting respondent due a week after that.