Recent Articles of Interest

From SSRN:

• Petr Agha, The Burqa Ban's Dark Side – Uncovering Face Covering Bans, (June 1, 2016).
• Andrew Koppelman, A Free Speech Response to the Gay Rights/Religious Liberty Conflict, (Northwestern University Law Review, Forthcoming).
• M. Christian Green, Apostasy Through Doubt and Dissent, (Forthcoming in the Journal of Law and Religion, July 2016).
• M. Christian Green, 'Graceful Pillars': Law, Religion, and the Ethics of the 'Daughter Track', (Forthcoming in the Journal of Law and Religion, July 2016).
• Rex Ahdar, Companies as Religious Liberty Claimants, (Oxford Journal of Law and Religion, 2016).
• Marc O. DeGirolami, Substantial Burdens Imply Central Beliefs, (St. John's School of Law Legal Studies Research Paper Series, 16-0014 (2016)).
• M. Christian Green, Jean Bethke Elshtain, (Christianity and Family Law, Chapter 24, Forthcoming).
• Debbie Kaminer, Religious Accommodation in the Workplace: Why Federal Courts Fail to Provide Meaningful Protection of Religious Employees, (Texas Review of Law & Politics, Vol. 20, No. 107, 2015).
• Robert W. McGee, Toilets, Transgenders, and Property Rights, (June 9, 2016).
• Suneal Bedi, Fully and Barely Clothed: Case Studies in Gender and Religious Employment Discrimination in the Wake of Citizens United and Hobby Lobby, (Hastings Business Law Journal, Vol. 12, No. 2, 2016).
• Rex Ahdar, Charity Begins at the Politically Correct Home? The Family First Case, (Otago Law Review (2015) 14(1) 171-189).

From SmartCILP:

• Neil Hamilton, Madeleine Coulter & Marie Coulter, Professional Formation/Professionalism's Foundation: Engaging Each Student's and Lawyer's Tradition on the Question "What Are My Responsibilities to Others?" 12 University of  St. Thomas Law Journal 271-338 (2016).
• Brett R. McCaw, Pro Deo et Patria: The Greek Catholic Church and Ukrainian National Life--Past and Present. 9 University of St. Thomas Journal of Law & Public Policy 94-124 (2014).
• Kent Greenawalt, McElroy Lecture. Granting Exemptions from Legal Duties: When Are They Warranted and What Is the Place of Religion?, 93 University of Detroit Mercy Law Review 89-117 (2016).
• Mark Strasser, Free Exercise and the Definition of Religion: Confusion in the Federal Courts, 53 Houston Law Review 909-937 (2016).
• Symposium: Human Rights and the Sexualization of Culture, 2 Journal of Global Justice & Public Policy 173-258 (2015).
• The Morality of Market Mechanisms. Leslie Carothers, moderator; Lucia Ann Silecchia, Bob Perciasepe, Caroline Farrell, participants. [Abstract], 46 Environmental Law Reporter News & Analysis 10005-10016 (2016).

Ohio School District Sues Feds Over Accommodation For A Transgender Student

A lawsuit was filed today in federal district court by an Ohio school district challenging the Justice Department and Department of Education's interpretation of Title IX as it applies to transgender students.  Unlike the broad-ranging lawsuit filed last month by eleven states challenging the same interpretation, today's suit focuses on accommodation, inconsistent with the new federal guidelines, already made by one school for a transgender student. The student began transitioning from male to female identity between kindergarten and first grade. The school allows the student to use single use staff restrooms, and encourages others students in the class to do likewise. The student's legal custodian has complained, and the Department of Education has investigated and proposed that the school change its policy to allow the transgender student to use sex-specific facilities. The complaint (full text) in Board of Education of the Highland Local School District v. U.S. Department of Justice, (SD OH, file 6/10/2016), says:

Highland has acceded, and will continue to accede, to the requests of Student A’s legal custodian to respect Student A’s gender-identity choice by not interfering with Student A’s current gender expression. But Highland will not accede to requests that adversely impact the dignity, privacy, safety, well-being, or rights of other students.

If the government were to deny federal funding because of a violation of Title IX, this would cost the school district $1.12 million. ADF issued a press release announcing the filing or the lawsuit.

Court Denies Preliminary Injunction To Require Inclusion of Parochial Schools In Voucher Program

According to the Denver Post, a Colorado federal district court in a ruling from the bench  yesterday refused to issue a preliminary injunction to require the Douglas County (Colorado) School District to include religiously affiliated schools in its School Choice Grant Program.  The court held that it was unclear that plaintiffs would ultimately succeed on the merits of their claim that excluding sectarian schools from the voucher program amounts to government hostility toward religion. At any rate, plaintiffs had not shown irreparable harm since plaintiffs could always seek monetary damages if they ultimately prevail. Also no schools had yet agreed to participate in the grant program. Private religious schools were excluded from the grant program after the Colorado Supreme Court last year struck down an earlier school choice program adopted by the county which included religious schools. (See prior related posting.)

IRS Advisory Committee On Non-Profits Submits Report

The Advisory Committee on Tax Exempt and Government Entities this week presented its 2016 report (full text) providing recommendations to the Internal Revenue Service.  Its subcommittee on exempt organizations noted that common themes emerged in conversations with regulators and other experts:

a need for coordinated action among regulators; better communication between regulators and those regulated entities; efficient and effective platforms for communication and dissemination of information; the need for transparency, particularly around enforcement; and, above all, the need to be user-focused throughout the regulatory and enforcement cycle.

BNA Daily Report for Executives [subscription required] has more on the recommendations.

Another "Church Plan" Lawsuit Filed

This week, another lawsuit was filed challenging the right of a religiously-affiliated hospital to rely on the "church plan" exemption from ERISA for its pension plan.  The complaint (full text) in Butler v. Holy Cross Hospital, (ND IL, filed 6/26/2016), alleges that HCH's pension plan violated a number of provisions in ERISA.  When HCH terminated it plan, it was underfunded by $31 million. The complaint alleges in part:

the HCH Plan is not a church plan because HCH is not a church. In fact, even if the law permitted certain non-church entities to establish church plans, the HCH Plan does not meet the various other requirements of a church plan. And if the HCH Plan did meet all the statutory requirements for church plan status, the statute would then be, to the extent, and as applied to HCH, an unconstitutional accommodation under the Establishment Clause of the First Amendment.

British Parliamentary Group Releases Report On Asylum Claims By Migrants Claiming Religious Persecution

In Britain, the All Party Parliamentary Group for International Freedom of Religion or Belief this week released a 35-page report titled Fleeing Persecution: Asylum Claims in the UK on Religious Freedom Grounds. Here is an  excerpt from the Executive Summary:

While the law is clear that religious persecution constitutes grounds for asylum, assessment of religion based asylum applications is complex and challenging due to the inherently internal and personal nature of religion and belief. This is compounded by the fact that persecution on the basis of religion or belief encompasses a wide range of human rights violations and relates to complex dynamics of communal identities, politics, conflicts and radical organisations....

... [T]here is a disparity between Home Office policy guidelines and what is actually happening in practice.... [W]hile it is clear that a lack of understanding of religion and belief is a primary cause of the disparity between good policy guidelines and practices of decision-makers within the UK asylum system, such ignorance might have been formalised through unpublished ‘crib sheets’ given to decision-makers.

Further evidence submitted by a number of stakeholders revealed that Christian and Christian convert asylum seekers are still being asked detailed factual “Bible trivia” questions which is too simplistic a way to judge if an individual is, for example, a genuine convert. Furthermore anecdotal evidence has shown that some people are learning as much as they can so they can be prepared for the Home Office interview.

Donald Trump On His Religious Beliefs

Syndicated columnist Cal Thomas yesterday interviewed Republican presumptive nominee Donald Trump on several issues.  Here is the portion of the full transcript relating to Trump's religious beliefs:

CT: Every president has called upon God at some point. Lincoln spoke of not being able to hold the office of the presidency without spending time on his knees. You have confessed that you are a Christian …

DT: And I have also won much evangelical support.

CT: Yes, I know that. You have said you never felt the need to ask for God’s forgiveness, and yet repentance for one’s sins is a precondition to salvation. I ask you the question Jesus asked of Peter: Who do you say He is?

DT: I will be asking for forgiveness, but hopefully I won’t have to be asking for much forgiveness. As you know, I am Presbyterian and Protestant. I’ve had great relationships and developed even greater relationships with ministers. We have tremendous support from the clergy. I think I will be doing very well during the election with evangelicals and with Christians. In the Middle East — and this is prior to the migration — you had almost no chance of coming into the United States. Christians from Syria, of which there were many, many of their heads … chopped off. If you were a Muslim from Syria, it was one of the easiest places to come in (to the U.S.). I thought that was deplorable. I’m going to treat my religion, which is Christian, with great respect and care.

CT: Who do you say Jesus is?

DT: Jesus to me is somebody I can think about for security and confidence. Somebody I can revere in terms of bravery and in terms of courage and, because I consider the Christian religion so important, somebody I can totally rely on in my own mind.

LDS Church Sued In Tribal Court Over Child Abuse

St. George News yesterday reported on a suit filed this week against the Mormon Church and several of its affiliates alleging that LDS leaders did not take adequate steps in the 1970's to protect Native American children from sexual abuse after they were placed in Mormon foster homes. The suit stems from "Indian Placement Program" or "Lamanite Placement Program" which operated from the late 1940's until around 2000 and took children from their Navajo homes in order to convert them to Mormonism. Plaintiff contends that the LDS Church workers told him to remain in his Mormon foster home in northern Utah until the end of the school year even though he complained that his foster father was sexually abusing him.  Interestingly the suit was filed in Navajo Tribal Court in order to avoid statute of limitations issues that would otherwise arise under Utah law. Three other Native American plaintiffs have previously filed similar lawsuits, beginning in March of this year.  Last week, the LDS Church filed suit in Utah federal district court to enjoin the Tribal Court from proceeding in those suits, arguing that Tribal Courts lack jurisdiction over  nonmember activity that occurred outside the reservation.

District Court Again Enjoins Enforcement of Alabama's Same-Sex Marriage Ban

In Strawser v. Strange, (SD AL, June 7, 2016), an Alabama federal district court, noting actions by the Alabama judiciary seeking to defy the U.S. Supreme Court's Obergefell decision, issued a permanent injunction barring the enforcement of Alabama’s laws that bar same-sex marriage.  Rejecting defendants' assertion that the claim against them is moot, the court said:

Although Attorney General Strange is already subject to a permanent injunction from another case in this Court, Searcy v. Strange, ... the other Defendants in this case are not subject to that injunction and the Plaintiffs in this case lack standing to enforce the Searcy injunction. It is also apparent that certain Alabama state courts do not view this Court’s ruling in Searcy as binding precedent....

The Court notes that the Supreme Court of Alabama denied the pending mandamus petitions and entered judgment in Ex parte State of Alabama ex rel. Alabama Policy Institute.... However, the Alabama Supreme Court did not vacate or set aside its earlier writ of mandamus directing Alabama’s probate judges to comply with the Alabama laws that were held unconstitutional by this Court.... Chief Justice Moore also stated that the Eleventh Circuit’s finding that the Alabama Supreme Court's order was abrogated by the Supreme Court's decision in Obergefell “is plainly wrong.”...

This Court is aware that Chief Justice Moore is currently suspended from his position and is facing charges before the Alabama Court of the Judiciary. However, even if Chief Justice Moore is not reinstated to his position as Chief Justice, the concurring opinions of several other Alabama Supreme Court Justices also expressed disagreement with Obergefell.... It is clear that the decision by the United States Supreme Court in Obergefell does not provide certainty that the alleged violations will not recur.

A press release from Americans United has more on the decision.

Required Use of Social Security Number Not a Free Exercise Violation

In Earl of the Family Cox v. St. Mary's County Department of Social Services, 2016 U.S. Dist. LEXIS 74402 (D MD, June 7, 2016), a Maryland federal district court in a brief opinion rejected the argument by a pro se plaintiff that required use of  his Social Security number in the child support program violates his 1st Amendment free exercise rights.

European Court Says Turkish Objector Not Covered By European Convention on Human Rights

In Enver Aydemir v. Turkey, (ECHR, June 7, 2016) (full text of opinion in French), the European Court of Human Rights in a Chamber Judgment held that Article 9 (Freedom of thought, conscience and religion) of the European Convention on Human Rights does not protect a Turkish conscientious objector.  Enver Aydemir asserted that he objects to military service for the secular Republic of Turkey, but would serve under a system based on the Qur'an and subject to its rules. A press release by the Court summarized the Court's reasoning:

Mr Aydemir’s complaints did not involve a form of manifestation of a religion or belief through worship, teaching, practice or observance within the meaning of Article 9 § 1. Accordingly, the Court concluded that Mr Aydemir’s opposition to military service was not such as to entail the applicability of Article 9 of the Convention, and that the evidence before it did not suggest that his stated beliefs included a firm, fixed and sincere objection to participation in war in any form or to the bearing of arms.

The Court did find, however, that Mr. Ayedmir was subjected to inhuman and degrading treatment in violation of Article 3 of the ECHR in the investigation of charges against him, charges brought against him and mistreatment of him during confinement. The Court awarded Ayedmir damages of 15000 Euros plus 3000 Euros for costs and expenses.

EEOC Sues Over Firing of Seventh Day Adventist

The EEOC announced yesterday that it has filed suit against Greenville Ready Mix Concrete, Inc., a North Carolina based company, for refusing to accommodate the religious observances of a Seventh Day Adventist employee.  Michael Cole, a truck driver for the company, was baptized as a Seventh-Day Adventist in February 2014, after which he asked not to work on Saturdays.  The company nevertheless scheduled him for a Saturday, and fired him when he refused.

Suit Challenges Tennessee Law Allowing Counselors To Refuse To Counsel Gays

AP reports that a state court lawsuit has been filed in Clinton, Tennessee by two gay rights activists challenging HB 1840, a new Tennessee law that allows therapists to assert their conflicting sincerely held principles to refuse to counsel clients on goals or behaviors.  The suit contends that the law violates the equal treatment provisions of the Tennessee Constitution.

Court Again Denies Minister Right To File Amended Complaint In Building Code Dispute

In Salman v. City of Phoenix, (D AZ, June 6, 2016), an Arizona federal district court denied a motion by an Arizona minister to file a fourth amended complaint in a suit challenging Phoenix's application of its building code to his use of his house for weekly Bible study meetings and worship.

Appeal Planned In Pakistan Court's Expansion of Grounds For Christian Divorce

Christians in Pakistan  (May 26) reports that a Christian leader will appeal to Pakistan's Apex Court a ruling handed down on May 23 by the Lahore High Court that expanded the grounds for Christian divorce in the country.  The Pakistan's Christian Divorce Act of 1869 allowed Christians to divorce in accordance with the procedures of British law.  However in 1981 General Zia-ul-Haq annulled that provision and limited the grounds for Christian divorce to adultery.  Now a High Court judge has ruled that the 1981 change was unconstitutional, reviving the ability of Christian couples to divorce on additional grounds found in British law, including divorce if the marriage has become irreparable. As reported by Christian Daily (May 26), some Christians feel that the expanded grounds for divorce mar the sanctity of marriage.

Israel's High Court Upholds Chief Rabbinate's Monopoly On Kosher Certification

In Israel on Monday, a 3-judge panel of the High Court of Justice in a 2-1 ruling upheld the official Chief Rabbinate's monopoly on kosher certification.  As reported by the Times of Israel, at issue was the ability of restaurants to use a alternative private kosher supervision service which issues certificates that do not use the term "kosher" in attesting to compliance with Jewish religious dietary requirements. The restaurants involved only displayed the Private Supervision certificate on their websites.  However, the High Court majority held:

a business is prohibited from presenting its kashrut status in writing, whether by using the word kosher or not, unless it was given a kosher certificate by the body authorized by law to do so.

The majority however said that the Chief Rabbinate would have to make reforms in its certification process within two years to eliminate the requirement that restaurants pay the salaries of inspectors who certify them.  The restaurants say they will seek review of the ruling by an expanded bench of the High Court.

Court Issues Preliminary Injunction Against College's Speech Permit Policy

In Grace Christian Life v. Woodson, (ED NC, June 4, 2016), a North Carolina federal district court issued a preliminary injunction barring North Carolina State University from enforcing its non-commercial speech permit policy that requires students to obtain prior written permission before distributing leaflets or soliciting passersby on campus. The suit was brought by a Christian student organization that proselytizes on campus. (See prior posting.) According to a press release by ADF, the court issued the preliminary injunction two days after a hearing in the case.  The court adopted plaintiff's allegations as its findings of fact. The preliminary injunction allows the University to still ban disruption of University activities, obstruction of buildings or sidewalks, or interference with educational activities or ceremonies.

In UK, Proposed Counter Extremism Bill Will Include Provisions Aimed At Unregistered Orthodox Jewish High Schools

The Independent reported Saturday that a Counter Extremism Bill being drafted by Britain's Home Office will contain new provisions aimed at unregistered Orthodox Jewish high schools which educate boys only in religious subjects.  Classes are taught in Yiddish. Former pupils have alleged that physical beatings are common and teachers often encourage students to enter arranged marriages at age 18.  Some students leave school unable to speak English. The schools serve the ultra-Orthodox Jewish community of north London.  Apparently Hackney Council officials have been aware of the schools for several years, but cooperated with religious schools to destroy records of students disappearing from the rolls of registered schools.  Britain's Department of Education says it is intensifying investigations into unregistered schools. The new focus by the government apparently stemmed from a report published in April by The Independent. [Thanks to Law & Religion UK for the lead.]

EEOC Sues Claiming Inadequate Accommodation of Refusal To Take Flu Shot

The EEOC announced last week that it has filed suit in a Massachusetts federal district court against Baystate Medical Center in Springfield, Massachusetts for failing to accommodate an employee who, for religious reasons, refused to get a flu vaccination.  The medical center allows employees with religious objections to instead wear a mask at work.  Stephanie Clarke, a recruiter in Baystate's human resources department, initially wore the mask, but job applicants could not understand her when they spoke to her. So she removed her mask and requested Baystate to find a different accommodation. Instead Baystate put her on indefinite, unpaid leave, and when she complained it terminated her employment. EEOC argues that an accommodation under Title VII must both respect the employee's religious beliefs and permit her to do her job effectively. Here she was terminated because she complained about religious discrimination. BNA Daily Labor Report has more on the suit.

County Settles Lawsuit By Removing Cross Decals From Sheriff's Cars

Austin American-Statesman reports that last week Brewster County, Texas commissioners approved a settlement in Freedom From Religion Foundation, Inc. v. Brewster County, Texas, which had been filed in federal district court in March.  In the case, FFRF sued challenging 8-inch tall Latin cross decals placed by the sheriff on six county law enforcement vehicles. (See prior posting.)  Three weeks after the suit was filed, the county Commissioners Court approved a ban on all political, religious, commercial and personal symbols and messages on county vehicles. In the proposed consent decree (full text) embodying the settlement, the court will enjoin the county from displaying Latin cross decals on Sheriff's Office vehicles, order defendants to pay plaintiffs' attorneys' fees and cost totaling slightly over $22,000, and award nominal damages of $1 each to two individual plaintiffs in the lawsuit.