Full Text of Complaint In 2011 Discrimination Suit By Family of Alleged NY/NJ Bomber

As reported today by CNN, the family of Ahmad Khan Rahami-- the alleged New York/ New Jersey bomber-- filed a federal lawsuit in 2011 claiming religious, racial and national origin discrimination by Elizabeth, New Jersey and its police department.  At issue was the city's repeated attempts to apply a 10:00 pm closing ordinance to the Rahami's chicken restaurant, while the family contended that the restaurant came within one of the exemptions in the ordinance.  Here is the full text of the complaint filed by the family in Rahami v. City of Elizabeth,(D NJ, filed 4/6/2011). Alleged bomber Ahmad Rahami was not one of the named plaintiffs in the case.

Obama Appoints Delegation To Babi Yar Commemoration

Yesterday President Obama announced the appointment of a Presidential Delegation to attend the Commemoration of the 75th Anniversary of the Babyn Yar Massacre in the Ukraine. The 4-person delegation is headed by Marie Yovanovitch, U.S. Ambassador to Ukraine, and also includes the chairman of the U.S. Holocaust Memorial Council.  The History Channel summarizes the events in Kiev in 1941:

The German army took Kiev on September 19, and special SS squads prepared to carry out Nazi leader Adolf Hitler’s orders to exterminate all Jews and Soviet officials found there. Beginning on September 29, more than 30,000 Jews were marched in small groups to the Babi Yar ravine to the north of the city, ordered to strip naked, and then machine-gunned into the ravine. The massacre ended on September 30, and the dead and wounded alike were covered over with dirt and rock.

Perhaps reflecting current international tensions in the area, the White House announcement used the Ukrainian term (Babyn Yar) rather than the more commonly used Russian name (Babi Yar) for the site.

European Court: Greece Violated Rights of Conscientious Objector

In Papavasilakis v. Greece, (ECHR, Sept. 15, 2016) [full text in French], the European Court of Human Rights in a Chamber Judgment found that a Jehovah's Witness' freedom of thought, conscience and religion (Art. 9 of the European Convention on Human Rights) were infringed by procedures used in Greece to consider his application to perform alternative civilian service instead of military service. As summarized by the Court's English-language press release:

Domestic law provided that the Special Board, when it examined applications for exemption from military service for conscientious objectors, had to be composed of two university professors, one senior or other advisor at the State Legal Council and two high-ranking army officers. Accordingly, if at the time it interviewed Mr Papavasilakis the Special Board had sat with all of its members present, the majority would have been civilians. However, only the two officers and the chairman were present on that day. In the Court’s view Mr Papavasilakis could thus have legitimately feared that, not being a member of a religious community, he would not succeed in conveying his ideological beliefs to career officers with senior positions in the military hierarchy.

A Chamber Judgment may be appealed to the Grand Chamber.

USCIRF Gets Acting Executive Director

Last week, the U.S. Commission on International Religious Freedom announced the appointment of Erin D. Singshinsuk as its Acting Executive Director while it searches for a person to fill that position on a permanent basis. The new appointee has been affiliated with several organizations having an international focus including the U.S. Institute for Peace where she served as the Vice President for Management and CFO.  Singshinsuk replaces Jackie Wolcott, the previous executive director, who was appointed to be a member of the Commission in March. (See prior posting.)

Court Employee Sues Under Title VII When Fired For Refusing To Process Same-Sex Marriage Licences

A Title VII lawsuit was filed earlier this month in a Florida federal district court by an employee of the Broward County, Florida clerk's office who was fired because she refused to process marriage license applications for same-sex couples. The complaint (full text) in Parker v. Forman, (SD FL, filed 9/9/2016), contends that plaintiff Yanicka Parker, as a Christian, has a sincere religious belief "that persons of the same sex cannot and should not be morally or legally recognized as husband and wife, and that God will judge individual Christians, as well as the society of which they are a part, who condone or institute same sex marriages."  The complaint asserts:

There were many other clerks available, willing and able to perform same sex marriages.

... Given that issuing marriage licenses to same sex couples was a miniscule part of the clerk’s job and overall responsibilities, and Ms. Parker was willing and able to perform all other aspects of her job, Defendant ... could have easily accommodated her religious beliefs.

Plaintiff seeks an injunction and damages for defendants' refusal to accommodate her religious beliefs. Christian Post yesterday reported on the lawsuit.

Court Refuses To Bar Enforcement of Anti-Discrimination Law Against Wedding Invitation Designers

In Brush & Nib Studio LC v. City of Phoenix, (AZ Super. Ct., Sept. 19, 2016), an Arizona trial court refused to issue a preliminary injunction to prevent enforcement of Phoenix, Arizona's public accommodation anti-discrimination ordinance against a business that designs custom wedding invitations. Refusing to dismiss on ripeness grounds, the court held that the law does not violate plaintiffs' free speech or free exercise rights. Rejecting plaintiffs' compelled speech argument, the court said in part:

Here, there is nothing about custom wedding invitations made for same-sex couples that is expressive.... The printing of the names of a same-sex couple on an invitation or thank you note does not compel Plaintiffs to convey a government mandated message, such as an endorsement or pledge in favor of same-sex marriages, nor does it convey any message concerning same-sex marriage.... It is absurd to think that the fabricator of a wedding invitation for a same-sex couple has endorsed same-sex marriage merely by creating or printing that invitation. Moreover, there is nothing about the creative process itself, such as a flower or vine or the choice of a particular font or color, that conveys any pledge, endorsement, celebration, or other substantive mandated message by Plaintiffs in regard to same-sex marriage.

Responding to plaintiffs' free exercise challenge, the court said in part:

the sale of wedding invitations free of the names of same-sex couples clearly is not the exercise of religion, and certainly is not a burden on the free exercise of their religion. Nothing about the ordinance has prevented the Plaintiffs from participating in the customs of their religious beliefs or has burdened the practice of their religion in any way.

ADF which represented plaintiffs in the case issued a press release responding to the decision. The press release is accompanied by links to pleadings in the case and to the relevant city ordinances.

4th Circuit: Sectarian Invocations Led By County Commissioners Are Permissible

In a 2-1 decision today, the U.S. 4th Circuit Court of Appeals, reversing the trial court, upheld the practice in Rowan County, North Carolina Board of Commissioners of opening their meetings with an invocation led on a rotating basis by one of the commissioners.  In Lund v. Rowan County, North Carolina,  (4th Cir., Sept. 19, 2016), the majority in a 54-page opinion held that the Board's practice is constitutional under the U.S. Supreme Court's Town of Greece  decision, saying in part:

The Board’s legislative prayer practice falls within our recognized tradition and does not coerce participation by nonadherents. It is therefore constitutional.

The district court (see prior posting) had held that Town of Greece does not cover sectarian invocations delivered by the county commissioners themselves instead of invited clergy. The majority, however, said:

Nowhere did the [Supreme] Court say anything that could reasonably be construed as a requirement that outside or retained clergy are the only constitutionally permissible givers of legislative prayer.

Judge Wilkinson, dissenting, said in part:

This combination of legislators as the sole prayer-givers, official invitation for audience participation, consistently sectarian prayers referencing but a single faith, and the intimacy of a local governmental setting exceeds even a broad reading of Town of Greece.

Charlotte Observer reporting on the decision says that the ACLU, representing plaintiffs, will ask for en banc review.

Recent Articles and Upcoming Conference of Interest

From SSRN:

• James M. Oleske, A Regrettable Invitation to 'Constitutional Resistance,' Renewed Confusion Over Religious Exemptions, and the Future of Free Exercise, (20 Lewis & Clark L. Rev. in Symposium, 'Law and Religion in an Increasingly Polarized America', (Forthcoming)).
• Sarah M. Stephens, Employer Conscience after Hobby Lobby and the Continuing Conflict between Women's Rights and Religious Freedom, (2016).
• Richard W. Garnett, Justice Scala, Religious Freedom, and the First Amendment, Notre Dame Law School Legal Studies Research Paper No. 1637 (2016).
• Nuel Chinonyelum Oji, Obergefell v Hodges and the Problem of Judicial Legislation, (University of Nigeria Bar Journal(UNBJ) 3 (2016) 147).
• Catherine Jean Archibald, Transgender Bathroom Rights, (Duke Journal of Gender Law & Policy, Forthcoming).
• Riley Fredrick, Marriage Equality: The Paralleled Progress between Public Approval and Supreme Court Decision-Making, (Florida State University Law Review, Forthcoming).

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

• Paul Maginn & Graham Ellison, ‘Ulster Says No’: Regulating the Consumption of Commercial Sex Spaces and Services in Northern Ireland, (Urban Studies, Forthcoming).
• Aleksandra Gliszczynska-Grabias & Wojciech Sadurski, Law of Ritual Slaughter and the Principle of Religious Equality, (Journal of Law, Religion and State, Forthcoming).
• Jeffrey A. Redding, Transgender Rights in Pakistan?: Global, Colonial, and Islamic Perspectives, (September 11, 2016).
• Satvinder Juss, The Justiciability of Religion, (Forthcoming in the Journal of Law and Religion - Cambridge University Press).
• Howard Kislowicz, On Collective Constitutional Rights: Lessons for Religious Rights from Language Rights, ((2016) 75 S.C.L.R. (2d) 31).
• Solomon A. M. Ekwenze, Nigeria's Multi-Religious Platform: A Myth or Reality - Public Holidays a Question, (September 7, 2016).
• Federico Masera, State, Religiosity and Church Participation, (September 14, 2016).
• Connor M. Ewing, The Structural Articulation of 'Equal Dignity', (August 28, 2016).

From SmartCILP:

• Zachary Bray, RLUIPA and the Limits of Religious Institutionalism, (2016 Utah Law Review 41-103).
• Julia L. Ernst, How Should the South African Constitutional Court Approach Tensions Between Women's Rights and Religious Rights?, 60 New York Law School Law Review 493-516 (2015/16).
• Ruth C. Stern & J. Herbie DiFonzo, Dogging Darwin: America's Revolt Against the Teaching of Evolution, 36 Northern Illinois University Law Review 33-82 (2016).

Upcoming Conference:

• Religious Critiques of Law, Pepperdine University, March 9-10, 2017.

Recent Prisoner Free Exercise Cases

In Scarpinato v. Indiana State Prison, 2016 U.S. Dist. LEXIS 122795 (ND IN, Sept. 12, 2016), an Indiana federal district court dismissed an inmate's complaint that he was not allowed to have a Bible in his cell during periods he was in segregation.

In Thomas v. Lakin, 2016 U.S. Dist. LEXIS 123182 (SD IL, Sept. 12, 2016), an Illinois federal district court allowed a Muslim inmate to move ahead with claims that jail authorities denied his request for a copy of the Qur'an, a prayer mat, religious worship services, and a religious diet.

In Hanson v. New Hampshire State Prison Literary Review Commission, 2016 U.S. Dist. LEXIS 123935 (D NH, Sept. 12, 2016), a New Hampshire federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 123936, Aug. 17, 2016) and dismissed an inmate's complaint that he was not allowed to receive a package containing the religious book The Shaolin Grandmasters' Text, and a non-religious book, Sailing a Serious Ocean, sent along with it.

In Gayle v. Harmon, 2016 U.S. Dist. LEXIS 124565 (ED PA, Sept. 13, 2016), a Pennsylvania federal district court, dismissing a case, held that restrictions on attending religious services for those in administrative segregation are rationally related to a legitimate penological interest.

In Stocking v. Semple, 2016 Conn. Super. LEXIS 2210 (CT Super. Ct., Aug. 10, 2016), a Connecticut state trial court dismissed an inmate's complaint that he was continually denied access to religious services.

In Aiello v. West, 2016 U.S. Dist. LEXIS 124739 (WD WI, Sept. 14, 2016), a Wisconsin federal district court allowed a Jewish inmate to move forward with his RLUIPA challenge to the ban on inmate-led group religious services, but dismissed plaintiff's 1st Amendment challenge to that ban as well as his challenges relating to availability of ritual foods for the Passover seder and to changes in the kosher meal menu.

In Munson v. Butler, 2016 U.S. Dist. LEXIS 124817 (SD IL, Sept. 13, 2016), an Illinois federal district court dismissed a Buddhist inmate's complaint that he was not able to receive a low soy lacto-ovo vegetarian diet.

In Beamon v. Dittmann, 2016 U.S. Dist. LEXIS 124879 (ED WI, Sept. 14, 2016), a Wisconsin federal district court upheld a prison's ban on Nations of Gods and Earths material despite plaintiff's claim that his beliefs were derived from various religious traditions.

In Salgado v. NYS Department of Corrections & Community Supervision, 2016 U.S. Dist. LEXIS 126659 (WD NY, Sept. 14, 2016), a New York federal magistrate judge recommended that a Muslim inmate be allowed to proceed with his complaint that he was not allowed to wear his Dihk'r prayer beads outside of his cell.

Inmate Has Broader Damage Remedy Under RFRA Than Under RLUIPA

In Crowder v. Lariva, 2016 U.S. Dist. LEXIS 122966 (SD IN, Sept. 12, 2016), an Indiana federal district court permitted a Hebrew Israelite inmate to move ahead against one of the prison chaplains on his complaint that he was denied a kosher diet. Because plaintiff was a federal inmate, he sued (in addition to his 1st Amendment claim) under RFRA instead of RLUIPA, and the court held that he had broader remedies as a result:

Jones [the chaplain] also argues that because the Seventh Circuit in Nelson v. Miller, 570 F.3d 868, 887 (7th Cir. 2009), held that the similarly-worded RLUIPA does not allow for the collection of money damages against individuals, the same reasoning should apply to RFRA. But there are at least two important differences between RLUIPA and RFRA that compel a different conclusion. First, ... the statutory language of RFRA defines "government" as, among other things, an "official (or other person acting under color of law)." ...Congress thus envisioned at least some individual-capacity suits under RFRA.... Second, RFRA, which applies to federal action, and RLUIPA, which is applicable to state action, arise from different principles.,,, [T]he portion of RFRA that authorizes lawsuits against the states was held unconstitutional because such an application exceeded Congress's power under the Enforcement Clause of the Fourteenth Amendment in City of Boerne v. Flores.... RLUIPA was enacted in response to City of Boerne ... as an exercise of Congress's spending power[.] ...[I]nterpreting that statute to allow damages actions against state officials in their individual capacities would 'raise serious questions regarding whether Congress had exceeded its [constitutional] authority.'" ... [S]uch considerations are not at issue when applying RFRA because RFRA's application to federal action is not based on the Spending Clause.... For these reasons, the Court concludes that RFRA does allow for the recovery of monetary damages against officers in their individual capacities

Federal Court Dissolves TRO Against Native American Pipeline Demonstrators

According to a National Lawyers Guild press release, yesterday a North Dakota federal district court dissolved an ex parte temporary restraining order it had issued a month earlier against the Standing Rock Sioux Tribal Chairman and others who had participated in demonstrations against construction of the Dakota Access Pipeline.  Demonstrators claim that the pipeline corridor runs through and near many Lakota/ Dakota tribe sacred burial and historical sites. Last week a D.C. federal district court refused to enjoin construction of the pipeline, but federal agencies are considering whether or not to grant permits for the project. (See prior posting.) The effect of yesterday's the order is to leave dealing with demonstrations to local officials.

Happy Constitution Day!

Tomorrow is Constitution Day-- the 229th anniversary of the signing of the Constitution by the delegates to the Constitutional Convention. In many cities the event was celebrated today instead of on the weekend.  Of course the primary protections for religious liberty were not part of the document as signed in 1787, but instead were part of the First Amendment-- ratified two years later in 1789.  However the original body of the Constitution did contain some protection for religious liberty and religious pluralism through the provision in Article VI:

[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Happy Constitution Day!

Defendant Wears Religious Texts As Protest Against Judge

The New York Post reports (with accompanying photos) that on Wednesday a defendant charged with various drug offenses appeared in a Brooklyn, New York trial court wearing a shirt he had made from newsprint carrying Hebrew writings of the late Lubavitcher Rebbe. He also wore a paper hat carrying seven of the Ten Commandments.  Defendant Aaron Akaberi-- who has professed a series of different religious beliefs-- says he did this as a protest against the judge who had refused to allow him to read passages from Jewish texts into the record at an earlier pre-trial hearing. His hearing was adjourned to a later date.

Voyeuristic Rabbi's 6+ Year Sentence Upheld On Appeal

In Freundel v. United States, (DC Ct. App., Sept. 15, 2016), the D.C. Court of Appeals upheld the trial court's sentence totaling over 6 years in prison imposed on Rabbi Barry Freundel who, under a plea agreement, pleaded guilty to 52 counts of voyeurism. Freundel had secretly videotaped 150 women in the changing room of the mikveh (ritual bath) at Washington's Kesher Israel Synagogue. The trial court sentenced Freundel to consecutive 45-day sentences on each count. On appeal, Fruendel argued that the consecutive sentences violate the double jeopardy clause, contending that his offenses involved only a single course of conduct. The appeals court disagreed, saying in part:

Under Mr. Freundel’s interpretation, once a defendant unlawfully recorded one victim, all future voyeuristic recording, even of different victims with different recording devices in different locations and at different times, would not be separately punishable as long as the defendant in some sense had a single voyeuristic purpose....“This is surely not a result which the legislature intended.”

AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

Brooklyn District Elects First Hasidic Female Judge In New York

The Windsor Terrace Patch reports that Rachel Freier will become the first Hasidic Jewish woman elected as a judge in New York state.  Frier won 41% of the votes in a 3-way Democratic primary for 5th District Civil Court in Kings County.  The district encompasses various communities in Brooklyn.  Apparently Freier will be unopposed in the November election.  Freier, a mother of six and and attorney, is particularly known for her role in founding Ezras Nashim, an all-female volunteer EMT service for the observant Jewish community.

Salesperson Is Independent Contractor, So Title VII Does Not Apply

The Pittsburgh Tribune-Review reported yesterday that a Pennsylvania federal district court has dismissed a suit against a bathroom remodeling company brought by a woman who was fired from her sales position when she refused to continue to attend Bible-based sales training sessions.  A federal court jury Tuesday concluded that the plaintiff was an independent contractor rather than employee, so the religious discrimination provisions of Title VII and state law do not apply.

Court Upholds Modified Version of School's Annual Christmas Production

In Freedom From Religion Foundation v. Concord Community Schools, (ND IN, Sept. 14, 2016), an Indiana federal district court upheld against an Establishment Clause attack a modified version of the annual Christmas Spectacular put on by an Indiana high school. The court had previously issued a preliminary injunction against the 2014 and proposed 2015 versions that included a live Nativity Scene. (See prior posting.) The court now ordered the parties to submit briefs as to whether claims regarding those versions are now moot, and if they are not, what remedies are appropriate. The court then concluded that the version of the Christmas Spectacular actually performed in 2015 after the issuance of the preliminary injunction-- a version that modifies the nativity scene and adds Chanukah and Kwanzaa elements-- does not violate any of the Establishment Clause tests.  The court said in part:

At bottom, the endorsement test involves a holistic, qualitative assessment of the totality of the circumstances of a given display. Here, based on the circumstances and presentation of the show as a whole, and the way in which an objective, reasonable observer would likely perceive it, the Court finds that the Christmas Spectacular that was actually performed in 2015 did not convey a message of endorsement of religion.

An FFRF press release, which contains links to prior pleadings in the case, discusses yesterday's decision.

US Civil Rights Commission Issues Report On Religious Liberty vs. Civil Rights

Last week (Sept. 7), the U.S. Commission on Civil Rights released a 306-page briefing report titled Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties.  Here is a portion of the Commission's Findings:

The Commission endorses the briefing panelists’ statements as summarized at page 21 of the Report in support of these Findings.

(1) schools must be allowed to insist on inclusive values; 2) throughout history, religious doctrines accepted at one time later become viewed as discriminatory, with religions changing accordingly; 3) without exemptions, groups would not use the pretext of religious doctrines to discriminate; 4) a doctrine that distinguishes between beliefs (which should be protected) and conduct (which should conform to the law) is fairer and easier to apply; 5) third parties, such as employees, should not be forced to live under the religious doctrines of their employers [unless the employer is allowed to impose such constraints by virtue of the ministerial exception]; 6) a basic [civil] right as important as the freedom to marry should not be subject to religious beliefs; and 7) even a widely accepted doctrine such as the ministerial exemption should be subject to review as to whether church employees have religious duties.

Further, specifically with regard to number (2) above, religious doctrines that were widely accepted at one time came to be deemed highly discriminatory, such as slavery, homosexuality bans, and unequal treatment of women, and that what is considered within the purview of religious autonomy at one time would likely change.

Yesterday, the U.S. Catholic Bishop's Ad Hoc Committee on Religious Liberty released a statement (full text) highly critical of the statement in the Report by Commission Chairman Martin Castro.  The Bishops said in part:

For the current Chairman of the United States Commission on Civil Rights, religious liberty is reduced to "nothing except hypocrisy," and religion is being used as a "weapon… by those seeking to deny others equality." He makes the shocking suggestion that Catholic, evangelical, orthodox Jewish, Mormon, and Muslim communities are comparable to fringe segregationists from the civil rights era. These statements painting those who support religious freedom with the broad brush of bigotry are reckless and reveal a profound disregard for the religious foundations of his own work.

[Thanks to Jeff Ziegler for the lead.]

NYT: Russia Uses Orthodox Church To Extend Its Political Influence

The New York Times, in a front-page story posted online yesterday, explores how Russia is using the Russian Orthodox Church to extend the country's political influence.  Here is an excerpt:

While tanks and artillery have been Russia’s weapons of choice to project its power into neighboring Ukraine and Georgia, Mr. Putin has also mobilized faith to expand the country’s reach and influence. A fervent foe of homosexuality and any attempt to put individual rights above those of family, community or nation, the Russian Orthodox Church helps project Russia as the natural ally of all those who pine for a more secure, illiberal world free from the tradition-crushing rush of globalization, multiculturalism and women’s and gay rights.

Thanks to a close alliance between the Russian Orthodox Church and the Kremlin, religion has proved a particularly powerful tool in former Soviet lands like Moldova, where senior priests loyal to the Moscow church hierarchy have campaigned tirelessly to block their country’s integration with the West. Priests in Montenegro, meanwhile have spearheaded efforts to derail their country’s plans to join NATO.

But faith has also helped Mr. Putin amplify Russia’s voice farther west, with the church leading a push into resolutely secular members of the European Union like France.

Catholic Diocese and Franciscan Order Settle Abuse Lawsuits

AP reported yesterday that the Catholic Diocese of Youngstown, Ohio and a Franciscan order based in Hollidaysburg, Pennsylvania have agreed to pay $900,000 to settle lawsuits involving 28 claims of abuse committed by a now deceased Brother in the order, Joseph Baker.  The abuse occurred in Catholic schools in Warren, Ohio between 1986 and 1990. Baker committed suicide in 2013.