Florida Appeals Court Hears Oral Arguments In Scholarship Tax Credit Challenge

A Florida state appeals court on Tuesday heard oral arguments (video of full oral arguments) in McCall v. Scott, a constitutional challenge to the state's Tax Credit Scholarship Program.  A trial court dismissed the case, finding that plaintiffs lacked standing. (See prior posting.) Daily Business Review reports on the oral arguments.

Judge Orders Church To Hold New Election

In Rock Church, Inc. v Venigalla, (Sup. Ct. NY Cnty, May 3, 2016), a New York state trial court ordered conflicting factions in a small upper East Side nondenominational Christian church to hold a new special meeting of the Church's membership to vote for a Board of Trustees.  The court found that a previous election was invalidly held.  The court concluded that a second ballot after most members thought a membership meeting had ended resulted in a sham election without adequate notice to the membership, in violation of the Church's By-Laws. At issue is a dispute over whether the faction that supports the church's pastor, Daniel Iampaglia, or the faction seeking his dismissal will be elected.  At one point, one of the opponents of Pastor Iampglia filed a police complaint charging him with petit larceny for taking funds from the church offeratory collections.  Iampaglia says the funds were used for church expenses as was the custom. New York Daily News reports on the decision.

4th Circuit Hears Oral Arguments In Graduation Prayer and Venue Case

On Tuesday, the U.S. 4th Circuit Court of Appeals heard oral arguments in American Humanist Association v. Greenville County School District. (Audio of full oral arguments.) At issue was the graduation ceremony prayer policy of the Greenville County, South Carolina school district, as well as its practice of holding some graduation ceremonies at a religious chapel on a local college campus. (See prior posting.) Greenville News reports on the oral arguments.

Ecclesiastical Abstention Requires Dismissal of Suit Over Sikh Temple Membership

In Singh v. Sandhar, (TX App., May 10, 2016), a Texas appellate court, on the basis of the ecclesiastical abstention doctrine, dismissed a suit contesting the membership list that was used by a Sikh temple in determining who was eligible to vote in an election to select members of the temple's 7-member executive committee known as the Prabandhak Committee. The court held:

The temple’s alleged failure to follow its bylaws on a matter of internal governance involves ecclesiastical concerns, and civil courts may not interfere in these matters when disposition of church property is not at stake. 

The Citadel Refuses Religious Accommodation In Uniform Requirement

Washington Post reported yesterday on a controversial decision by The Citadel to refuse a religious accommodation to its strict student uniform requirement.  The South Carolina public military college will not allow a Muslim student who has been admitted to wear her hijab. According to the paper:

[T]he fact that [the school] was considering an exception ... set off shock waves among alumni. The idea pleased some in the close-knit corps, who felt it could be an important symbol of religious freedom and inclusiveness. But it upset others who felt it would clash with the mission and ideals of the Citadel, where loyalty, teamwork and uniformity are paramount.

At the Citadel, students are expected to leave behind their individuality ... and form opinions based on character rather than appearance. Allowing one student to wear something completely different struck many as antithetical to that mission. And some objected, as well, because exceptions have apparently not ever been made for other religions. Christian cadets have been told not to display crosses, for example.

That the exception was being considered at a time when the role of Islam in U.S. culture is so polarizing ...  made the issue particularly incendiary far beyond the Charleston, S.C., campus.

Suit Challenges Maryland County Ten Commandments Monument

In March, a lawsuit was filed in federal district court in Maryland challenging a Ten Commandments monument located on the courthouse lawn in Cumberland, Maryland.  The complaint (full text) in Davis v. Allegany County Commissioners, (D MD, filed 3/8/2016), recounts plaintiff's efforts since 2004 to have the monument removed.  Apparently defendants were not actually served in the case until sometime between April 29 and May 6.  The Cumberland Times-News last week reported on the reaction of county officials to the lawsuit. They complain that plaintiff is not even a resident of the county and are obtaining free legal assistance in defending against the suit. One county commissioner added:

These items were manufactured and put out by (filmmaker) Cecil B. DeMille.  They sent these things out as promotional items for the [Ten Commandments] movie. It was never in a church. It is an historic monument in an historic area.

[Thanks to Bob Ritter for the lead.]

Minister Can Sue His Church For Disability Benefits

In Bigelow v. Sassafras Grove Baptist Church, (NC App., May 10, 2016), the North Carolina Court of Appeals held that neither the ministerial exception doctrine nor the ecclesiastical abstention doctrine bars a minister from suing his church for contractually promised disability compensation and benefits.  The court said in part:

because plaintiff’s complaint does not challenge the Church’s decision to terminate his employment, but instead seeks to enforce a contractual obligation regarding his compensation and benefits, we hold that the ministerial exception does not apply and is not a basis for dismissal of plaintiff’s claims....

because a court can decide plaintiff’s contract-based claims applying “neutral principles of law,” without entangling the Court in an ecclesiastical dispute or interpretation, we hold that the ecclesiastical abstention doctrine does not require dismissal of plaintiff’s complaint.

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

Italian Court Overturns Convictions For Eid al-Adha Sacrifice

An Italian appeals court last week overturned the animal cruelty conviction of two Romanian travelers who had been fined by a lower court for the public slaughter of a young goat to mark the Muslim festival Eid  al-Adah (the Feast of the Sacrifice). The Local yesterday reported on the decision by the appellate court in Genoa:

In overturning the conviction, judge Mauro Amisano wrote that animal cruelty charges “presume the lack of any valid motive which renders the cruelty abject and futile.”

Amisano added that the sacrifice had a valid motive as it was part of a religious festival and had been carried out according to longstanding tradition.

“As part of a religious practice, one can assume the men did not expose the animal to any additional suffering,” he added.

“It cannot be considered illegal because it is a practice which is permitted by the freedom of religious expression.”

Justice Department Sues North Carolina Over Transgender Bathroom Access

In a counter-suit to one filed by the governor of North Carolina (see prior posting), U.S. Attorney General Loretta Lynch announced yesterday that the Justice Department has filed suit against  the state of North Carolina, the University of North Carolina, and the North Carolina Department of Public Safety over H.B. 2, the state's new transgender bathroom law.  The complaint (full text) in United States v. State of North Carolina, (MD NC, filed 5/9/2016) seeks a declaratory judgment that in complying with H.B. 2,  defendants are discriminating on the basis of sex in violation Title VII and Title IX, and on the basis of sex and gender identity in violation of the Violence Against Women Act.  The suit also asks for injunctive relief.

Lawsuit Challenges Mississippi's New Freedom of Conscience Law

ACLU of Mississippi announced yesterday that it has filed suit against the state's Registrar of Vital Records on its own behalf and on behalf of a same-sex couple challenging recently enacted Mississippi H.B. 1523, the Freedom of Conscience From Government Discrimination Act.  While the Act broadly 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), the lawsuit largely focuses on provisions allowing county clerks to recuse themselves from issuing marriage licences. The complaint (full text) in Alford v. Moulder, (SD MS, filed 5/9/2016) seeks declaratory and injunctive relief that the law violates the equal protection and due process clauses of the 14th Amendment.  It argues that the requirement for the Registrar of Vital Records to keep a list of those who have opted out of performing same-sex marriages amounts to creation of a "no-same-sex couples allowed" list.  Alluding to the other provisions of the law, the complaint adds:

HB 1325 subjects same-sex married couples in Mississippi to a lifetime of potentially humiliating denials of ordinary assistance and places a badge of inferiority upon their marriages each time they celebrate one of the ordinary incidents of family life.

North Carolina Sues Feds In Transgender Bathroom Dispute

As previously reported, last week the U.S. Department of Justice sent a letter to North Carolina Governor Pat McCrory warning that compliance with North Carolina's recently enacted House Bill 2 on transgender bathroom access places the state in violation of Title VII of the 1964 Civil Rights Act, and threatens millions of dollars in federal funding.  The letter called for a response from the state by today.  As reported by the Washington Post, this morning Gov. McCrory filed suit against the federal government challenging its interpretation of the federal civil rights laws.  The complaint (full text) in McCrory v. United States, (ED NC, filed 5/9/2016) asserts that the Justice Department's position constitutes "a baseless and blatant overreach."  It argues in part:

This is an attempt to unilaterally rewrite long-established federal civil rights laws in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation  by the Courts. The overwhelming weight of legal authority recognizes that transgender status is not a protected class under Title VII. If the United States desires a new protected class under Title VII, it must seek such action by the United States Congress.... Moreover, the Department has similarly overreached in its interpretation of the Violence Against Women Reauthorization Act of 2013 (“VAWA”).

The University of North Carolina, which was also warned by the Justice Department in connection with its obligations under Title IX, was not one of the plaintiffs in the lawsuit.

Resource On Eagles Ten Commandments Monuments

Many of the cases challenging Ten Commandments displays have involved one of the 186 Ten Commandments monuments donated to state and local governments since 1954 by the Fraternal Order of Eagles.  Bob Ritter at the Jefferson Madison Center now has posted links to photos of 173 of the FOE monuments. His website also has other information on the Eagles monuments and the litigation challenging them.

Recent Articles of Interest

From SSRN:

• Thomas C. Berg, Partly Acculturated Religious Activity: A Case for Accommodating Religious Nonprofits, (Notre Dame Law Review, Vol. 91, Forthcoming).
• Robert A. Katz, The Role of Public Reason in Obergefell v. Hodges, (FIU Law Review 117 (2016)).
• Linda H, Edwards, Hearing Voices: Non-Party Stories in Abortion and Gay Rights Advocacy, (2015 Mich. St. L. Rev. 1327).
• Linda Sugin, Rhetoric and Reality in the Tax Law of Charity, (Fordham Law Review, Vol. 84, No. 101, 2016).
• Evelyn Brody, The 21st Century Fight Over Who Sets the Terms of the Charity Property Tax Exemption, (Exempt Organization Tax Review, Vol. 77, No. 4, 2016).

From SSRN (Non-U.S. Law):

• Benjamin Shmueli & Yuval Sinai, Victim Pays Damages to Tortfeasor: The When and Wherefore,  (McGill Law Journal, Vol. 61, No. 2, 2015).
• Benjamin Shmueli, Tax, Don't Ban: A Comparative Look at Harmful But Legitimate Islamic Family Practices Actionable Under Tort Law, (Vanderbilt Journal of Transnational Law, 2016).
• Victor M. Muniz-Fraticelli & Lawrence David, Religious Institutionalism in a Canadian Context, (Osgoode Legal Studies Research Paper No. 43/2016 (2015)).
• Jens T. Theilen, The Long Road to Recognition: Transgender Rights and Transgender Reality in Europe, (Gerhard Schreiber (ed.), Transsexualität in Theologie und Neurowissenschaften. Ergebnisse, Kontroversen, Perspektiven (De Gruyter 2016)).
• Rebecca Christianne Lee, Forced Sterilization and Mandatory Divorce: How A Majority of Council of Europe Member States’ Laws Regarding Gender Identity Violate the Internationally and Regionally Established Human Rights of Trans* People, (Berkeley Journal of International Law 33:1 (2015)).

Suit Claims Sheriff Used Official Facebook Page To Proselytize

American Atheists announced Friday that it has filed suit against Bradley County, Tennessee Sheriff Eric Watson for using the sheriff department's Facebook page to promote the sheriff's Christian religious beliefs.  The complaint (full text) in American Atheists, Inc. v. Watson, (ED TN, filed 5/6/2016), alleges that the sheriff posted an Easter message and other messages that proselytized and deleted or blocked visitor comments on Facebook that were critical of the sheriff or his religion or policies.

Recent Prisoner Free Exercise Cases

In Robinson v. Wetzel, (3d Cir., May 3, 2016), the 3rd Circuit affirmed the dismissal of a complaint by a Christian inmate held in the highest level of security that he was not allowed to view church services, Bible study and religious programming by closed-circuit television.

In Garnica v. Washington Department of Corrections, (9th Cir., May 5, 2016), the 9th Circuit affirmed the dismissal of a suit complaining that prison officials inadvertently provided plaintiff a low-calorie meal on the first day of Ramadan 2010 before correcting the error.

In Williams v. Does, (2d Cir., May 6, 2016), the 2nd Circuit reversed the district court and held that a Muslim inmate plausibly alleged a free exercise violation stemming from several of his Ramadan meals being served to him before sunset.

In Bradford v. Kramer, 2016 U.S. Dist. LEXIS 58067 (SD IL, April 29, 2016), an Illinois federal district court permitted a Sunni Muslim pre-trial detainee to move ahead with his claim that 24-hour camera surveillance of him in his cell violates his religious belief that he can be seen nude only by his wife.

In Halsey v. Armstrong, 2016 U.S. Dist. LEXIS 58436 (D OR, April 28, 2016), an Oregon federal magistrate judge dismissed for failure to exhaust administrative remedies a complaint by a Muslim inmate that an officer insulted his religion; that he was wrongly removed from the Ramadan fast list because of false reports that he had broken the fast; and that he was subsequently precluded from engaging in any religious activities.

In Valerio v. New Hampshire Department of Corrections, 2016 U.S. Dist. LEXIS 59237 (D NH, May 3, 2016), a New Hampshire federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 59515, April 1, 2016) and, while dismissing a number of claims, allowed an inmate to move ahead with his complaint that his free exercise rights were infringed by a group strip search following a Christian revival event. His religious beliefs bar his being nude in front of other men.

In Bausman v. California Department of Corrections and Rehabilitation, 2016 U.S. Dist. LEXIS 59514 (ED CA,May 3, 2016), a California federal magistrate judge allowed an inmate to proceed with his complaint that a change in regulations reduced the kinds of religious and cultural items that Native American inmates can possess.

In Hoffmann v. Price, 2016 U.S. Dist. LEXIS 59520 (ED CA, May 3, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that during a cell search officer went through his kosher food bags and placed his Torah open and face-down on the floor and leaving a boot print on it.

In Hampton v. Chaplin, 2016 U.S. Dist. LEXIS 59583 (SD IN, May 4, 2016), an Indiana federal district court dismissed an inmate's suit claiming $1 million in damages for emotional distress when he was removed one time from religious services.

In Blankenship v. Setzer, 2016 U.S. Dist. LEXIS 59862 (WD NC, May 5, 2016), a North Carolina federal district court dismissed a Christian inmate's complaint that his Bible was confiscated under jail policies that barred possession of books without covers, and that he was not permitted to take his Bible during transfers between jails.

Judicial Inquiry Commission Files Complaint Against Alabama CJ

As reported by AP, the Alabama Judicial Inquiry Commission yesterday filed a Complaint (full text) against Alabama Supreme Court Chief Justice Roy Moore contending that Moore abused his authority and acted in violation of the Code of Judicial Ethics when in January he issued an administrative order to all probate judges telling them that they had a duty under Alabama law to continue to refuse to issue marriage licenses to same-sex couples. (See prior posting.)  Moore's action ignored federal court orders to the contrary.

Church Sues Over Misrepresentation of Its Views On Same-Sex Marriage

A Hudsonville, Michigan church this week filed a false-light invasion of privacy lawsuit in Michigan state court against a gay rights activist whom it accuses of falsely representing that the church supports same-sex marriage. The complaint (full text) in Jenison Bible Church, Inc. v. VanderLey, (MI Cir. Ct., filed 5/3/2016), contends that when Bradlee Dean, a controversial Christian speaker opposed to same-sex marriage, was scheduled speak in the area, defendant Daniel VanderLey arranged a demonstration against him and sought to have local churches join it.  VanderLey sent demand letters to local churches, including Jenison Bible Church, telling them that unless they affirmatively opted out, VanderLey would arrange to have a sign saying that the church "stands for love not hate" displayed at the anti-Bradlee Dean rally.  The complaint contends that this public distortion of Jenison Bible Church's views on same-sex marriage and sexual immorality negatively impacts its ability to share the Gospel and damages its reputation in the eyes of other churches, it neighbors, and those potentially interested in joining the church. The suit seeks an injunction, a published retraction and a public apology. [Thanks to Brian D Wassom for the lead.]

Lawsuit Charges Restaurant With Discriminating Against Muslim Patrons

The Orange County Register reported yesterday on the messy facts surrounding a discrimination lawsuit filed by 7 Muslim women against a Laguna Beach, California restaurant.  On April 22, the women, most of whom were wearing hijabs, were sitting at a table on the uncrowded outdoor patio near the restaurant entrance.  They  were asked to leave for violating the restaurant's rule against remaining at a table more than 45 minutes after eating. The Register report fills in further details:

 “The women were singled out and targeted because they appeared to be Muslim,” said attorney Mohammad Tajsar. “Urth Caffe targeted these women as a way of cleansing their location of women that appeared to be Muslim to appease the Islamaphobia in a predominantly white Laguna Beach community.”

Shallom Berkman, owner of Urth Caffe, disputed the claims. His wife, Jilla, who is Muslim, was the one who advised management to call police after the women became rude toward restaurant staff, he said.

Urth Caffe announced Wednesday that it is being represented by the American Freedom Law Center, a firm that specializes in faith-based lawsuits.

“Urth Caffe did not discriminate against the women who have filed this fraudulent lawsuit," said David Yerushalmi, co-founder and senior counsel for the center. “The lead plaintiff (Sara Farsakh) in the frivolous lawsuit is ... a college-age activist for Palestinian causes. We intend to sue Farsakh and her co-conspirators for trespass and to seek damages.”

Lawsuit Challenges School's Accommodation of Transgender Rights and DOE's Rules

In the escalating war over transgender rights, a lawsuit was filed in federal district court in Illinois this week by a group of  high school students and their parents challenging an agreement between a Cook County school district and the Department of Education to permit a transgender student in one of the high schools access to girls' locker rooms. The suit also challenges the school district's policy of allowing students to use restrooms that correspond to their gender identity.

The 83-page complaint (full text) in Students and Parents for Privacy v. Department of Education, (ND IL, filed 5/4/2016), says that the school district was threatened with the loss of $6 million in federal funding if it did not agree to the arrangement. It alleges that the locker room agreement and restroom policy cause students to lose their constitutionally protected right of privacy by requiring them to have their partially or fully unclothed bodies exposed to persons of the opposite sex.  The complaint contends that this also violates students' right under Title IX to an education that is free from a hostile environment based on sex, and infringes parents' rights to control the upbringing and education of their children.

The suit also contends that the Department of Education acted contrary to law when it interpreted Title IX's reference to "sex" discrimination as including "gender identity." Chicago Tribune reported on the lawsuit.

FFRF Sues House Chaplain Over Invocation Requirements

The Freedom From Religion Foundation yesterday filed suit in federal district court in Washington, D.C. against the U.S. House of Representatives, its Chaplain and other House officials.  The complaint (full text) in Barker v. House of Representatives, (D DC, filed 5/5/2016), challenges the criteria used by the current House Chaplain in approving guest chaplains who deliver some 40% of the invocations opening House sessions. The House Chaplain requires that the guest chaplain be sponsored by a member of the House, be ordained, and deliver an invocation addressed to a "higher power."  Plaintiff Daniel Barker, co-president of the Freedom From Religion Foundation, says he meets all these requirements, but was not permitted to deliver an invocation on the ground that his ordination is not in a religion that he now practices. The complaint alleges more generally that "the guest chaplain requirements are inherently discriminatory against the nonreligious and minority religions." The suit seeks declaratory and injunctive relief.

FFRF issued a press release announcing the filing of the lawsuit, saying in part:

FFRF is asking the ... Court ... to declare that barring atheists and other nonreligious individuals from the position of guest chaplain violates the Constitution and RFRA, and that requiring guest chaplains to invoke a supernatural power violates Article VI. The organization is also bringing an Establishment Clause claim under the First Amendment of the Constitution, pointing out the chaplain's office is showing an unconstitutional preference for religion over nonreligion.

"We take some satisfaction in filing this lawsuit on the National Day of Prayer, an unconstitutional law enacted at the behest of the Rev. Bill Graham in 1952 requiring the president to issue an annual proclamation exhorting citizens 'to turn to God in prayer, at churches,'" says Barker.