Indiana's Bar On Name Changes By Non-Citizens Challenged As Violating Transgender Rights

Yesterday the battle over transgender rights-- which has often had religious overtones-- took a different turn with the filing of a federal court lawsuit by a transgender male from Mexico who was granted political asylum in the United States and who lives in Indiana.  At issue is an Indiana law that prohibits non-citizens from obtaining a legal change of name. The complaint (full text) in Doe v. Pence, (SD IN, filed 9/13/2016), contends that the law violates plaintiff's 1st and 14th Amendment rights, saying in part:

For a transgender person, a change of name is in many cases a necessary part of treatment for Gender Dysphoria....  Transgender people face a heightened risk of discrimination, harassment, and violence when their transgender status is known to others. Being referred to by or having to identify oneself by a name traditionally associated with the person’s sex assigned at birth, rather than with the person’s lived gender, can “out” a transgender person to others, revealing their private medical information and putting them at serious risk of harm.

Plaintiff asserts, in in addition to equal protection, autonomy and privacy claims, a free speech right to change his name:

Indiana Code Section 34-28-2-2.5(a)(5) violates the First Amendment right to freedom of speech by compelling speech from Plaintiff that betrays and falsely communicates the core of who he is.... For transgender persons, communicating their name and expressing their gender is speech protected by the First Amendment. Plaintiff’s adoption of the traditionally masculine name “John” conveys the message that he is a man, an essential component of personal identity.

MALDEF issued a press release announcing the filing of the lawsuit. Wall Street Journal reports on the lawsuit.

Social Security Employee Fighting LGBTQ Awareness Training On Religious Grounds

A new controversy pitting Christian religious beliefs against LGBTQ rights has erupted at the Social Security Administration.  LGBTQ Nation reports today that David Hall, a 14-year employee at the Social Security office in Champaign, Illinois, has been suspended for two days and anticipates being fired for refusing to watch a training video on LGBTQ awareness.  Hall, a Christian, was refused a religious accommodation to excuse him from the requirement to sign a form acknowledging that he had completed the awareness training.  Hall, who has hired a lawyer, says: "I am not going to certify sin." He argues that the video is "promoting an agenda and lifestyle" that he does not agree with. Hall says he has LGBTQ friends and family and is not judging anyone.  He says: "I’m simply trying to live out my life, my faith and be obedient to the will of God."

Speeches To Value Voters Summit Now Online

The annual Value Voters Summit was held last week in Washington, D.C.  Videos of speeches by more than 25 political and religious leaders to the conservative Christian attendees at the Summit are available online.  Speakers included Donald Trump, Mike Pence, Reince Priebus, Oliver North and Rick Santorum.

Cert Petition Filed In "Sister Wives" Challenge To Polygamy Law

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Brown v. Buhman.  In the case, U.S. 10th Circuit Court of Appeals dismissed on mootness grounds the constitutional challenge to Utah's bigamy law that had been filed by the polygamous family from the television show "Sister Wives." (See prior posting). A federal district court had held most of Utah's plural marriage ban unconstitutional. (See prior posting.) Jonathan Turley who represents petitioners discusses the filing on his blog.

Title VII's Religious Organization Exemption Protects Salvation Army

In Garcia v. Salvation Army, (D AZ, Sept. 12, 2016), an Arizona federal district court dismissed a Title VII religious discrimination claim brought against the Salvation Army by a former social services coordinator for the organization.  Plaintiff claimed that she was subjected to discrimination, retaliation, and hostile work environment after she stopped attending services at the Salvation Army’s Estrella Mountain Corps where she was employed.  The court held that Title VII's religious organization exemption applies to plaintiff's claim, and that the Salvation Army did not waive the defense by failing to assert it as an affirmative defense.

2nd Circuit: Students Lack Standing To Challenge Diversion of Dollars To Religious Schools

In Montesa v. Schwartz, (2d Cir., Sept. 12, 2016), the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision, held that plaintiffs-- dozens of students in the East Ramapo Central School District in New York state-- lack standing to sue over funds allegedly diverted by the school board to Orthodox Jewish schools.  The students claim that the diversion-- in part through manipulation of payments under the Individuals With Disabilities Education Act-- led to less funding for the public schools they attend.  In denying standing, the majority said in part:

We have not found a case ... where an appeals court has recognized [plaintiffs'] theory of direct exposure—where the plaintiffs’ exposure is the loss of a favored governmental service or benefit caused, in part, by a diversion of public resources away from such service or benefit to support a preferred religion....  The Student‐Plaintiffs’ injury arises out of being enmeshed in an underfunded school system, not out of being directly exposed to the alleged unconstitutional IDEA Settlements themselves. An alleged causal connection between the underfunding of the school district’s budget and the alleged unconstitutional expenditures is insufficient to give rise to a direct injury. To hold otherwise would impermissibly expand the concept of direct exposure to include injuries that are unrelated to the challenged governmental act but which flow in fact from a government’s decision to fund one program or service at the expense of another.  This is a theory of indirect injury and recognizing it would allow plaintiffs who are only incidentally affected by a challenged governmental expenditure to assert Establishment Clause claims.

Judge Reiss dissented. Courthouse News Service reports on the decision.

Canadian Appeals Court Allows Review of Church's Expulsion of a Member

In Wall v Judicial Committee of the Highwood Congregation of Jehovah's Witnesses, (Alberta Ct. App., Sept. 8, 2016), the Court of Appeals of the Canadian province of Alberta held, in a 2-1 decision, that Canadian civil courts have jurisdiction to review a formal decision by a Jehovah's Witness congregation to disfellowship one of its members. The congregation's Judicial Committee took the action against the member, Randy Wall, on the basis of charges of drunkeness.  A church Appeal Committee upheld the decision over Wall's defense that his action resulted from stress over the church's previous disfellowshipping of his 15 year old daughter and the requirement that he shun aspects of his relationship with her.

The majority held that civil courts have jurisdiction to review the decision of a religious organization where the decision impacts property or civil rights, or if a breach of the rules of natural justice is alleged.  Here Wall alleged sufficient procedural irregularities to give jurisdiction to determine if rules of natural justice were breached.  The appeals court majority also held that Wall can submit new evidence to the trial court on whether the impact of shunning by fellow congregants will result in an economic impact on his real estate business.

Judge Wakeling dissenting said in part:

Relying on basic constitutional principles, I have concluded that, presumptively, religious associations – and more importantly, the constituent members – have the constitutional right to select their own members – those with whom they will worship. This decision to exclude a person from the group may be attributable to irreconcilable religious differences or perceived unacceptable forms of behaviour. One should not have to undertake such an intensely personal pursuit with those with whom they do not wish to associate. A religious association must be solely responsible for this class of decisions.

A civil court must decline to review membership decisions of a religious association....

[S]tate intervention in the affairs of religious organizations is not only contrary to the interests of a democratic community, it is also inimical to the welfare of both religious organizations and their congregants.  Whether a religion prospers and attracts new members and has influence in the greater community should be the product of the efforts of adherents of a religion and the values of the religion, not the level of support provided by state apparatus, including the judicial branch of government.

... Courts have neither the mandate nor the expertise to resolve religious doctrinal disputes.

Where one appellate judge dissents on an issue of law, an appeal as of right to Canada's Supreme Court is available. (Background.)  National Post reports on the decision.

Company Settles With EEOC Over Firing of Seventh Day Adventist

The EEOC announced last week that North Carolina-based Greenville Ready Mixed Concrete, Inc., has agreed to a $42,500 settlement in the EEOC's suit (see prior posting) against it for firing a Seventh Day Adventist employee who refused a Saturday work assignment. The company has also agreed to a 5-year consent decree requiring it to create an anti-discrimination policy, engage in employee training, post notice about the lawsuit and submit periodic reports to the EEOC.

Illinois Court Recognizes Muslim Divorce In India Through Khula

Times of India reported yesterday on a June 28 opinion handed down by a Cook County, Illinois circuit court judge recognizing that a Muslim woman's first marriage had been validly dissolved in India in 2007 through the little-known wife-initiated Sharia law procedure of khula.  The issue arose when the woman's second husband raised as a defense in a divorce proceeding the argument that their marriage was never valid because the wife was never divorced from her first husband.

Recent Articles of Interest

From SSRN:

• Steven Menashi, How Great is the Threat to Religious Freedom, Really?, (Mosaic Magazine, August 17, 2015).
• Michael W. McConnell, Mark E. Schneider, Jay P. Lefkowitz & Steven Menashi, Brief of Amici Curiae Former Justice Department Officials in Support of Petitioners in Zubik v. Burwell, (2016).
• Shachar Eldar & Elkana Laist, The Irrelevance of Motive and the Rule of Law, (New Criminal Law Review, Forthcoming).
• Marc O. DeGirolami, Religious Accommodation, Religious Tradition, and Political Polarization, (Lewis & Clark Law Review, Forthcoming).
• Christopher C. Lund, Religious Exemptions, Third-Party Harms, and the Establishment Clause, (Notre Dame Law Review, Vol. 91, p. 1375, 2016 (symposium)).
• John C. Eastman, No Free Lunch, But Dinner and a Movie (and Contraceptives for Dessert)?, (10 N.Y.U. J. L. & Liberty 282 (2016)).
• Robert Corn-Revere, Hate Speech Laws: Ratifying the Assassin's Veto, (Cato Institute Policy Analysis No. 791 (2016)).

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

• Effie Fokas, Directions in Religious Pluralism in Europe: Mobilizations in the Shadow of European Court of Human Rights Religious Freedom Jurisprudence, (Oxford Journal of Law and Religion, Vol 4, No.1, 54-74 (2015)).
• Luke Beck, The Case against Improper Purpose as the Touchstone for Invalidity under Section 116 of the Constitution, (Federal Law Review, Vol. 44, No. 3, Forthcoming).
• Gbohou Gnantin Hilaire Tegnan & Saldi Isra, Rule of Law and Human Rights Challenges in South East Asia: A Case Study of Legal Pluralism in Indonesia, (April 1, 2016).
• Preethi Kumar Mokshagundam, Dr. Ambedkar's Concept of Social Justice and Indian Constitution Protection for Dalits – A Recent Day Analysis, (August 23, 2016).
• Paul Dermine, Towards the Recognition of a Pan-European Right to Same-Sex Marriage – What If Light Came from the United States?, (June 1, 2016).
• Matthew S. Erie, Sharia, Charity, and Minjian Autonomy in Muslim China: Gift Giving in a Plural World, (American Ethnologist 43(2): 311-423 (2016)).

From SmartCILP:

• Walter C. Long, The Constitutionality and Ethics of Execution-Day Prison Chaplaincy, [Abstract], 21 Texas Journal on Civil Liberties & Civil Rights 1-33 (2015).
• Michael Stokes Paulsen, The Unconscionable War on Moral Conscience (reviewing Robert P. George, Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism), 91 Notre Dame Law Review Rev. 1167-1195 (2016).
• Mark Strasser, Hobby Lobby, RFRA, and Family Burdens, [Abstract], 25 Boston University Public Interest Law Journal 239-264 (2016).
• Special Issue: A Thousand Years of Infamy: The History of the Blood Libel. Edited by Richard H. Weisberg; preface by Richard H. Weisberg; articles by Jeffrey Mehlman, Hannah R. Johnson, Richard H. Weisberg, David Fraser and Vivian Grosswald Curran. 28 Law & Literature 1-95 (2016).

Ethiopia Pardons Muslims Convicted of Opposing Government's Moderate Push

AP reports that in Ethiopia on Saturday, the chief prosecutor pardoned around 1,000 convicts upon the approach of the Ethiopian New Year and Eid al-Adha.  Among them were 135 Muslims convicted on anti-terrorism charges of religious extremism.  The pardoned convicts had participated in months-long anti-government protests in 2012 when the government encouraged the teaching of the moderate Al-Ahbash form of Islam and required that it be taught in an Addis Ababa religious school. [Thanks to Scott Mange for the lead.]

Recent Prisoner Free Exercise Cases

In Begnoche v. Derose, 2016 U.S. Dist. LEXIS 119747 (MD PA, Sept. 2, 2016), a Pennsylvania federal district court dismissed an inmate's claim that the Therapeutic Community program involved religious content and interfered with his ability to practice his Native American religious beliefs.

In Shakur v. Thomas, 2016 U.S. Dist. LEXIS 119767 (ND NY, Sept. 6, 2016), a New York federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 72707, June 2, 2016)(see prior posting), finding a plausible showing that an inmate's position as a Muslim Shia inmate facilitator is protected 1st Amendment speech or conduct for purposes of a retaliation claim. The court also adopted uncontested recommendations that plaintiff be allowed to move ahead with various claims of denial of Ramadan and festival meals and participation in congregational prayer.

In Espinosa v. Stogner, 2016 U.S. Dist. LEXIS 120646 (D NV, Sept. 6, 2016), a Nevada federal district court dismissed an inmate's complaint that prison authorities violated the Free Exercise and Establishment clauses by refusing to recognize his "secular/religious Humanism" as an accepted faith group. However the court granted plaintiff leave to amend his complaint to allege "how his brand of humanism differs from tradition secular moral philosophy in a way sufficient to qualify as a religion under the Free Exercise Clause."

In Wilson v. Avertest, 2016 U.S. Dist. LEXIS 121593 (MD PA, Sept. 7, 2016), a Pennsylvania federal magistrate judge recommended dismissal of free exercise and 4th Amendment complaints by plaintiff who under a house arrest and alcohol monitoring program was required to undergo a below-the-waist strip search.  Plaintiff claimed that his Jewish faith requires that he "not to bare his nakedness for any unnecessary reason."

In Wilkes v. Hunter, 2016 U.S. Dist. LEXIS 121707 (ND CA, Sept. 8, 2016), a California federal district court dismissed, with leave to amend, plaintiff's claim that jail deputies refused to allow him to bring a Christian cross into jail.

In Brown v. Mohr, 2016 U.S. Dist. LEXIS 122292 (SD OH, Sept. 9, 2016), an Ohio federal magistrate judge recommended refusing to dismiss a Jewish inmate's claim that he was denied a kosher diet for 10 weeks, but recommended dismissing his complaint that he was housed in a cell with a neo-Nazi inmate.

Court Rejects Sioux Challenge To Pipeline On Sacred Land, But Feds Delay Permission

In Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, (D DC Sept. 9, 2016), the D.C. federal district court refused to enjoin construction of the Dakota Access Pipeline near the Standing Rock Indian Reservation on sacred ancestral lands of the Sioux Tribe. (See prior related posting.) Summarizing its 58-page decision, the court said:

The Tribe fears that construction of the pipeline, which runs within half a mile of its reservation in North and South Dakota, will destroy sites of cultural and historical significance. It has now filed a Motion for Preliminary Injunction, asserting principally that the Corps flouted its duty to engage in tribal consultations under the National Historic Preservation Act (NHPA) and that irreparable harm will ensue. After digging through a substantial record on an expedited basis, the Court cannot concur. It concludes that the Corps has likely complied with the NHPA and that the Tribe has not shown it will suffer injury that would be prevented by any injunction the Court could issue.

However, shortly after the decision was handed down, the Department of Justice, the Department of the Army and the Department of the Interior issued a joint statement (full text) reading in part:

The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws.  Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time.  The Army will move expeditiously to make this determination, as everyone involved — including the pipeline company and its workers — deserves a clear and timely resolution.  In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.

Furthermore, this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects.  Therefore, this fall, we will invite tribes to formal, government-to-government consultations on two questions:  (1) within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights; and (2) should new legislation be proposed to Congress to alter that statutory framework and promote those goals....

In recent days, we have seen thousands of demonstrators come together peacefully, with support from scores of sovereign tribal governments, to exercise their First Amendment rights and to voice heartfelt concerns about the environment and historic, sacred sites.  It is now incumbent on all of us to develop a path forward that serves the broadest public interest.

CNN reports on developments.

Settlement Ends Long-Running Dispute Over Control of Sikh Temple In California

A long-running dispute over control of a Sikh Temple in Yuba City, California, appears to have come to an end after a court-ordered election of new board members resulted in a cooperative transition of leadership.  According to yesterday's Appeal-Democrat, the election (ordered by the court to be held without regard to the Temple by-laws quorum requirements) led to victory by a slate of 73-board members who were opposed to the incumbent directors. The parties then entered a settlement agreement covering all four of the pending cases growing out of the controversy. The agreement was presented to the court yesterday.  Under the settlement, the new directors take office immediately and they will amend the Temple's bylaws to reduce from 8 to 4 years the term of board members. During a board meeting yesterday evening, the new board received the keys and financial records of the Temple.

Another Suit Challenges Feds' Interpretation Of Title IX To Protect Transgender Rights

On Wednesday, another lawsuit was filed-- this time by a group of Minnesota parents-- challenging the Department of Education and Department of Justice's recent Guidance declaring that Title IX protects transgender students from discrimination and requires that they be permitted to use restrooms and locker rooms consistent with their gender identity. The complaint (full text) in Privacy Matters v. U.S. Department of Education, (D MN, filed 9/7/2016) contends that the Guidance violates the Administrative Procedure Act, Title IX, the right to privacy and to control the upbringing of one's children.  It also contends that the Guidance infringes plaintiffs' religious free exercise rights under the state and federal constitutions and RFRA, saying:

Some Student Plaintiffs have a sincere religious belief that they must practice modesty, which includes a requirement that they not undress or use the restroom with the opposite sex.

Some Parent Plaintiffs have a sincere religious belief that they must teach their children to practice modesty and protect the modesty of their children. This includes a requirement that their children not undress or use the restroom with the opposite sex.

ADF issued a press release announcing the filing of the lawsuit.

Muslim Police Officer Sues For Religious Accommodation

A Muslim police officer in the Town of West New York, NJ, filed a religious discrimination lawsuit this week in New Jersey federal district court alleging that he was not provided a religious accommodation to the police department's Appearance Policy.  The complaint (full text) in Awadallah v. Town of West New York, (D NJ, filed 9/7/2016), alleges that plaintiff wears a light beard as part of his Muslim religious beliefs. It contends that defendants initially denied the possibility of an accommodation and then delayed action on his request.  He was not permitted to work overtime while he was wearing his beard, and was required to submit proof of his religious beliefs. Ultimately his accommodation request was denied. Plaintiff alleges this violates Title VII and the New Jersey Law Against Discrimination. [Thanks to Jeff Pasek for the lead.]

6th Circuit Dismisses Suit Over Catholic Bishops' Health Care Directives

In Means v. U.S. Conference of Catholic Bishops, (6th Cir., Sept. 8, 2016), the U.S. 6th Circuit Court of Appeals affirmed a Michigan federal district court's dismissal of a suit against the U.S. Conference of Catholic Bishops (USCCB) and against three individuals who served as chairs of the Catholic Health Ministries-- the sponsor of a health care system that includes the Catholic hospital at which plaintiff Tamesha Means claims she was inadequately treated.  Means visited the hospital when she prematurely went into labor at 18 weeks into her pregnancy.  The hospital, complying with the USCCB's  Catholic health care directives, did not give Means the option of terminating her pregnancy, even though her physician suspected she had a serious bacterial infection that can cause infertility and even death.  After the statute of limitations on medical malpractice had run, Means sued the entities responsible for promulgating and adopting the Catholic health care directives, charging them with negligence.

The 6th Circuit dismissed the USCCB from the case for lack of personal jurisdiction.  As to the other defendants, the court said in part:

Means asks us to recognize a duty under Michigan law on the part of a religious organization to a specific patient to adopt ethical directives that do not contradict the medical standard of care. Whether such a duty exists is far from certain, especially if the standard of care violates the organization’s religious beliefs. Nevertheless, even if the CHM defendants had such a duty, Means’s factual allegations do not create the plausible inference that any breach of that duty proximately caused any injury to Means within the strictures of Michigan negligence law.... 

Means alleges—and we do not doubt—that she suffered physical and mental pain, emotional injuries, a riskier delivery, shock and emotional trauma from making funeral arrangements for her dead child, and other “discomforts and pain.” But these allegations are not sufficient to state an injury under Michigan negligence law. In Michigan, “present physical injury” is necessary to state a claim for negligence.

[Thanks to Tom Rutledge for the lead.] 

Two Charged With Conspiracy In Plan To Coerce Jewish Religious Divorce

On Wednesday, the U.S. Department of Justice announced the filing of a criminal complaint against an Israeli rabbi connected with the Satmar Hasidic community in Kiryas Joel, New York, as well as against a 25-year old Kiryas Joel resident, charging them with conspiracy to commit kidnapping and conspiracy to commit murder for hire.  The plot, revealed to authorities by a confidential source ("CS") who was contacted by the two, started as a planned kidnapping in order to coerce the victim into granting a Jewish religious divorce ("get") to the intended victim's wife.  The plot developed into one of possible murder of the victim.  The criminal complaint (full text) in United States v. Liebowitz, (SD NY, filed 9/6/2016), charges Rabbi Aharon Goldberg and Shimen Liebowitz with advancing over $57,000 to have the plan carried out. JTA reports on the case.

Sioux-- and Green Party Candidate-- Protest North Dakota Pipeline Across Sacred Land

The Washington Post this week reported on the showdown between members of the Standing Rock Sioux Tribe and the company building the Dakota Access crude-oil pipeline across North and South Dakota.  The tribe claims that the pipeline will run through sacred ancestral lands which were taken from the tribe over the years. It will cross the Missouri River just a mile north of the Standing Rock Indian Reservation.  Thousands of Native Americans have traveled to North Dakota over the past weeks to join the protest. As reported by CBS News, on Tuesday Green Party Presidential candidate Jill Stein visited the protest site and, at the urging of activists, spray painted a  message on a bulldozer blade. In response, yesterday a warrant was issued for Stein's arrest, charging her with misdemeanors-- criminal trespass and criminal mischief.  On Tuesday, a judge issued a temporary restraining order halting construction only on part of the land. A ruling on the Tribe's request for an injunction is expected Friday. (NPR News).

In Canada, Gay Activists Sue Christian Group That Infiltrated Pride Parade

Last month in Canada, two LGBT activists filed a class action lawsuit against a group of Christian conservatives who, calling themselves the "Gay Zombies Cannabis Consumers Association," registered under false pretenses to march in the 2016 Toronto Pride Parade.  According to the complaint (full text) in Hudspeth v. Whatcott, (Ont. Super. Ct., filed 8/11/2016), the Gay Zombies, wearing green costumes that disguised their identities, handed out 3000 flyers showing graphic pictures of sexually transmitted diseases and vilifying homosexuality.  Alleging civil conspiracy, intentional infliction of mental distress, and defamation, the suit seeks an injunction to bar defendants from future participation in or attendance at the Toronto Pride Parade; an order barring them from further distribution of the offensive flyers; and damages totaling $103 million (Canadian). Daily Xtra (Aug. 12) reported on the lawsuit.