Favoring Religious Over Non-Religious Objections Is Not Religious Discrimination

In Brown v. Our Lady of Lourdes Medical Center, Inc., (NJ App., Oct. 3, 2016), a New Jersey state appellate court held that a community health educator who was fired for refusing to comply with a medical center's compulsory flu vaccination policy could not establish a prima facie case of religious discrimination under New Jersey's Law Against Discrimination.  Plaintiff argued that by permitting exemptions for those with religious objections, but not for those opposed to vaccination for other reasons, her employer had discriminated by favoring religious over non-religious grounds. According to the court:

[Plaintiff]  did not allege that the adverse employment action taken against her was because of her membership in a protected class. Without any allegation that she was a member of a protected class based upon her race, color, religion, sex, or national origin, plaintiff's LAD discrimination claim was futile.

New Jersey Law Journal reports on the decision.

Settlement Reached In Suit By College Researcher Who Claimed Anti-Creationism Discrimination

The College Fix today reports that a six figure settlement has been approved by a California state trial court in Armitage v. Board of Trustees of the California State University.  In the suit (see prior posting), a former electron microscope technician in the Biology Department of California State University Northridge claimed that he was terminated because of hostility to his published research findings supporting "young earth" creationist theory. The suit alleged infringement of plaintiff's free exercise and academic freedom rights.

Suit Claims Kaporos Violates California's Business Practices Law

A lawsuit was filed last week in a California federal district court by an animal rights group challenging the legality under California law of the pre-Yom Kippur ritual of kaporos (or kapparot) practiced by many observant Jews.  The ritual involves waving a live chicken overhead to symbolically transfer one's sins to it, and then slaughtering the chicken. The complaint (full text) in United Poultry Concerns v. Chabad of Irvine, (CD CA, filed 9/29/2016) alleges that the ritual as implemented by Chabad of Irvine constitutes an "unlawful business practice" under California's Business and Professions Code because the practice violates the state's ban on "intentional and malicious killing of animals" other than for use as food (California Penal Code Sec. 597(a), 599c).  The complaint adds:

taking out vengeance on an innocent animal for one’s own shortcomings is exactly the type of societal evil the legislature sought to prohibit in enacting this provision. 

According to the complaint Chabad charges $27 to each person for furnishing and disposing of the chicken, making a $25 profit per chicken. The suit seeks a preliminary and permanent injunctions and declaratory relief. On Monday, UPC issued a press release announcing the filing of the lawsuit.

New California Law Requires Disclosure of Title IX Exemptions

As reported by The Advocate, last Friday California's Gov. Jerry Brown signed S.B. 1146 (full text) into law.  The new law requires religiously affiliated schools in California that have obtained an exemption from any of the anti-discrimination provisions of Title IX or California's Equity in Higher Education Act to publicly disclose that fact.  The federal Department of Education has granted exemptions nationwide to some 43 colleges and universities (6 in California) from non-discrimination requirements that conflict with the schools' religious tenets. These variously include bans on discrimination on the basis of sexual orientation or gender identity, as well as on other grounds. California schools now must disclose this fact to students, faculty and applicants for admission in publications, student orientation and other specified ways. Information on exemptions must also be filed with California's Student Aid Commission.

Workplace Program Is A "Religion" Under Title VII

In EEOC v. United Health Programs of America, (ED NY, Sept. 30, 2016), a New York federal district court in a 102-page opinion held that programs called "Onionhead" and Harnessing Happiness" that were introduced into the workplace are religious for purposes of Title VII, and not merely a conflict resolution tool. The court also refused to dismiss reverse religious discrimination and hostile work environment claims by various former employees, as well as conventional religious discrimination claim by one former employee. UPDATE: Newsday reports on the decision.

Supreme Court Term Opens With Action On Cert. Petitions and More

The U.S. Supreme Court opened its October 2016 Term on Monday, with the first oral arguments this morning. Here is a round-up of a number of developments leading up to, and occurring on, opening day.

Last Thursday, in advance of opening day, the Court granted review in eight cases (Order List), one of which was McLane Co. v. EEOC, No. 15-1248 (cert. granted limited to one question, 9/29/2016). (SCOTUSblog case page).  While the case involves EEOC charges of gender and age discrimination, the procedural issue which the court will decide may affect EEOC religious discrimination cases as well.  At issue is whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, or whether an appellate court should instead give more deference to the district court's decision. SHRM reports on the case.

As reported by the National Law Journal, on Sunday, the annual Red Mass was held (photos) at the Cathedral of St. Matthew the Apostle in Washington, D.C.  It was attended by Chief Justice Roberts, and Justices Kennedy, Thomas, Alito and Breyer.  The late Justice Scalia's son gave a reading from the Bible at the ceremony.

On Monday, the Court issued its usual lengthy opening-day list of certiorari denials. This year's list of cases covered 64 pages of the 71-page Oct. 3 Order List.  Among the cases in which review was denied was Klingenschmitt v. United States, (Docket No. 15-1445). In a decision by the Court of Federal Claims (see prior posting) which was summarily affirmed by the Court of Appeals for the Federal Circuit, the court rejected claims by a Navy Chaplain that he was that he was wrongfully discharged from the Navy. The refusal to recertify Klingenschmitt as a chaplain culminated a long-running battle between him and the military over military regulations requiring chaplains to deliver inclusive prayers at military event.

Obama Holds Pre-Rosh Hashanah Call With 600 Rabbis

Rosh Hashanah begins this evening. As reported by JTA, last Monday President Obama held a pre-holiday conference call with over 600 rabbis from the Orthodox, Conservative, Reform and Reconstuctionist movements of Judaism.  In his opening remarks (full text), the President said in part:

... Rosh Hashanah is a time for reflection, and I'm not exempt from that. So, looking back on the last eight years, I'm both proud of what we've accomplished together, but also mindful of the work we have before us.....

... [W]e've still got a lot of work to do -- on the refugee crisis, on criminal justice reform, reducing violence, and creating a political culture in this country that’s a little more functional. But a new year brings new hope, and the community represented on this phone call has always known what it means to stand up for the less fortunate, the stranger, the immigrant, the refugee.

Recent Articles of Interest

From SSRN:

• Christopher C. Lund, RFRA, State RFRAs, and Religious Minorities, (San Diego Law Review, Vol. 53, p. 163, 2016 (symposium)).
• Pranoto Iskandar, The Human Right to Non-Religious Beliefs: A Prospectus, (September 23, 2016).
• Christopher C. Lund, Keeping Hobby Lobby in Perspective, (in The Rise of Corporate Religious Liberty (Micah Schwartzman, Chad Flanders, and Zoë Robinson eds., Oxford University Press, 2016)).
• Joel A. Nichols & John Witte, Religious Law and Religious Courts as a Challenge to the State (National Report for United States of America), (Religious Law and Religious Courts as a Challenge to the State: Legal Pluralism from a Comparative Perspective, Ed. Uwe Kischel (Verlag Mohr Siebeck, Tübingen, 2016), 83-111).
• Nelson Lund, Rousseau's Rejuvenation of Political Philosophy: A New Introduction, (Rousseau’s Rejuvenation of Political Philosophy, N. Lund, Palgrave, 2016).
• Michele Goodwin & Allison M. Whelan, Constitutional Exceptionalism, University of Illinois Law Review, 2016, (Forthcoming).
• Paul J. Heald, Christian Libertarianism and the Curious Lack of Religious Objections to the Patenting of Life Forms in the United States, (September 29, 2016).
• Engy Abdelkader, A Comparative Analysis of European Islamophobia: France, UK, Germany, Netherlands and Sweden, (UCLA Journal of Islamic and Near Eastern Law, Vol. 16, 2016).
• G. Michael Fenner, Same-Sex Marriage, Conscientious Objection and an Ambushed Pope, (Creighton Lawyer, Fall 2016).
• Katayoun Alidadi, The Limits of State Law in the Case of an Organized Secular-Humanist Community in the Southern Bible Belt: Model Behaviour Shaping Self-Restrained Law Use, (Rechtsphilosophie: Zeitschrift Fur Grundlagen Des Rechts, Forthcoming 2016).
• Jason N. E. Varuhas, Damages and Human Rights: Introduction, (Chapter 1 of JNE Varuhas, Damages and Human Rights (Hart Publishing, 2016)).
• Jeremy Waldron, What a Dissenting Opinion Should Have Said in Obergefell v. Hodges, (September 28, 2016).
• Iain T. Benson, Undazzling Equality, (September 24, 2016).
• Brian D. Galle, Valuing the Right to Sue: An Empirical Examination of Nonprofit Agency Costs, (September 28, 2016).

From SmartCILP:

• Rowan W. Dorin, "Once the Jews Have Been Expelled": Intent and Interpretation in Late Medieval Canon Law, 34 Law & History Review 335-362 (2016).
• Mohammad Rasekh, Sharia and Law in the Age of Constitutionalism, [Abstract], 2 Journal of Global Justice & Public Policy 259-276 (2016).

Recent Prisoner Free Exercise Cases

In a lengthy opinion in Jackson v. Crawford, 2016 U.S. Dist. LEXIS 130983 (WD MO, Sept. 26, 2016), a Missouri federal district court upheld the prison system's failure to include "atheism" as a religious preference on intake forms, but allowed an inmate to move ahead on his claim that he was not given a sufficient opportunity for a secular alternative to the standard substance abuse program.

In Mitchell v. Cicchi, 2016 U.S. Dist. LEXIS 131900 (D NJ, Sept. 26, 2016), a New Jersey federal district court allowed a Muslim inmate to move ahead with a claim for nominal damages asserting that his free exercise rights were infringed when he was not allowed to attend an Eid feast because he was in maximum custody status.

In Warrior v. Gonzalez, 2016 U.S. Dist. LEXIS 132639 (ED CA, Sept. 27, 2016), a California federal district court dismissed a suit by a Muslim inmate challenging unclothed visual body cavity searches of Muslim inmates during Ramadan before they were allowed to attend religious programming.

In Williams v. Blood, 2016 U.S. Dist. LEXIS 133517 (D UT, Sept. 27, 2016), a Utah federal district court refused to dismiss for failure to exhaust administrative remedies an inmate's complaint that authorities ended certain Islamic meetings and he was retaliated against for filing grievances about religious diet accommodations.

In Harris v. California Medical Forensic Service, 2016 U.S. Dist. LEXIS 133752 (ND CA, Sept. 28, 2016), a California federal magistrate judge dismissed an inmate's claim that denial of use of marijuana burdened the exercise of his Christian Fundamentalist beliefs.

In Epperson v. Crawford, 2016 U.S. Dist. LEXIS 134065 (WD KY, Sept. 29, 2016), a Kentucky federal district court dismissed a Muslim inmate's complaint that a correctional officer dragged his prayer rug across the floor, but allowed him to move ahead with a complaint alleging retaliation for filing a grievance over the incident.

In Brewer-El v. Beckstrom, 2016 Ky. App. Unpub. LEXIS 662 (KY App., Sept. 30, 2016), a Kentucky state appeals court upheld the dismissal of an inmate's complaint that his grievance would not be considered because he added the suffiix "EL" to his last name. He alleged this infringed his free exercise of religion.

In Williams v. Pollard, 2016 U.S. Dist. LEXIS 134509 (ED WI, Sept. 29, 2016), a Wisconsin federal district court dismissed an inmate's complaint over confiscation of his materials from Fruit of Islam, a subgroup (considered by authorities as a security threat group) within the religious group Nation of Islam. His retaliation claim was also rejected.

In Sharps v. Richardson, 2016 U.S. Dist. LEXIS 135297 (D MD, Sept. 29, 2016) a Maryland federal district court rejected a Muslim inmate's complaint that the vegetarian diet that complies with his religious requirements consists of a repetition of the same meals.

In Johnson v. Federal Bureau of Prisons, 2016 U.S. Dist. LEXIS 135434 (MD PA, Sept. 30, 2016), a Pennsylvania federal district court allowed a Muslim inmate to move forward with complaints that he was not permitted to engage in group prayer and was not allowed to pray in the prison library and at adult education classes.

In Elder v. Cook County Department of Corrections, 2016 Ill. App. Unpub. LEXIS 2117 (IL App., Sept. 30, 2016), an Illinois state appellate court upheld dismissal of a complaint by an inmate who was a follower of Hermeticism that his request for a copy of the Kybalion was ignored.

Constitutional Challenge Filed To Illinois Limits on Conscientious Objection By Doctors

A suit was filed this week in an Illinois federal district court by several pro-life pregnancy centers challenging the constitutionality recently enacted amendments to Illinois Health Care Right of Conscience Act. (See prior posting.)  The new amendments require doctors and health care facilities to inform patients of all health care options and, if the patient requests an option to which the physician has conscientious objections, the physician must refer or transfer the patient elsewhere for the procedure. The complaint (full text) in National Institute of Family and Life Advocates v. Rauner, (ND IL, filed 9/29/2016), alleges that the amendments violate their religious freedom rights and require them to engage in compelled speech:

It would violate the religious and moral beliefs and conscience of Plaintiffs and their staff to comply with SB 1564 § 6.1(1)’s requirement that for every pregnant woman they treat, they must “inform” her that abortion as a “legal treatment option,” and that they must describe “benefits” of abortion that they disagree with.

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

Suit Challenges Veterans' Memorial Featuring Cross

A suit was filed yesterday in a New Jersey federal district court challenging on Establishment Clause grounds a war memorial erected outside the Veterans Memorial public library in Roselle Park, New Jersey.  As pictured and described in a report on the lawsuit by NJ Advance Media, the memorial depicts a soldier kneeling over a grave marked by a cross. The complaint (full text) in American Humanist Association v. Borough of Roselle Park, (D NJ, filed 9/30/2016) alleges in part:

When the government displays an iconic religious symbol – the symbol of Christianity – on its property, it sends a strong message of endorsement and exclusion. This message of religious favoritism is even more problematic because the cross display purports to be a government memorial honoring war dead. No such monument should honor just one religious group, but the cross at issue here does exactly that: it exalts Christian veterans and excludes everyone else.

UPDATE: NJ Advance Media reports that on Oct. 6, in light of the litigation, the Roselle Park Borough Council voted unanimously to dismantle the statue outside the library.

Alabama Chief Justice Roy Moore Suspended From Office Over Same-Sex Marriage Order

Alabama's 9-member Court of the Judiciary today unanimously concluded that Alabama Supreme Court Chief Justice Roy Moore violated various Canons of Judicial Ethics in issuing an order to state probate judges telling them they had a duty under Alabama law to refuse to issue marriage licenses to same-sex couples despite the U.S. Supreme Court's decision finding that denial of marriage licences to same-sex couples is unconstitutional. The Court of the Judiciary also found that Moore should have recused himself in a subsequent case involving same-sex marriage.  The Court suspended Moore from office for the remaining two years of his term.  As reported by NPR, Moore's age will disqualify him from again running for the state Supreme Court in 2018.  A majority of the court voted to completely remove Moore from office, but removal rather than suspension requires a unanimous vote.  In the 50-page opinion in In re Roy S. Moore, (AL Ct. Jud., Sept. 30, 2016), the Court of the Judiciary also took into account the fact that Moore had in 2003 been the subject of proceedings that removed him from office after his resistance to court orders relating to a Ten Commandments monument.

Nevada Supreme Court Upholds School Choice Plan, But Invalidates Appropriations For It

In Schwartz v. Lopez, (NV Sup. Ct., Sept. 29, 2016), the Nevada Supreme Court gave a mixed victory to opponents of the state's school choice program.  The state's Educational Savings Account program is the most extensive in the country.  It allows parents of any child who has attended a public or charter school for at least 100 days to receive into an educational savings account a portion of the state's public school funding for use at an eligible alternative private (including religious) school. (See prior posting.) The Court held that the plan does not violate Art. 2, Sec. 11 of the Nevada Constitution that requires the legislature to provide for a uniform system of common schools. Nor does it violate Art. 11, Sec. 10 that prohibits use of public funds for sectarian purposes since the funds cease being public funds when deposited in a parent's educational savings account.

The Court however held that no valid appropriation had been made by the legislature to fund the Educational Savings Account program.  The state is using funds appropriated for public schools. Therefore the Court remanded to the trial courts the two cases under review ordering the issuance of declaratory judgments and permanent injunctions against implementing the Educational Savings Account program until the legislature makes a valid appropriation to cover its costs.

Justices Douglas and Perry dissented in part contending that the Court should not have reached the issue of whether the plan violates Art. 11, Sec. 10's prohibition on use of public funds for sectarian purposes. Las Vegas Sun reports on the decision.

Two RLUIPA Suits Over Rezoning For Islamic School Are Settled

According to the Ann Arbor News, Pittsfield Township, Michigan yesterday reached agreements to settle two related RLUIPA lawsuits challenging the township's refusal to rezone a vacant parcel of land for construction of a pre-K through 12 school by the Michigan Islamic Academy. One suit was brought by the Justice Department (see prior posting). The Consent Order (full text), which must still be approved by the court, is described in a DOJ press release:

As part of the settlement, the township has agreed to permit MIA to construct a school on the vacant parcel of land, to treat the school and all other religious groups equally and to publicize its non- discrimination policies and practices [by signage and on the Internet].  The township also agreed that its leaders and various township employees will attend training on the requirements of RLUIPA.  In addition, the county will report periodically to the Justice Department.

The other suit was brought by the Michigan Islamic Academy (see prior posting).  In settling that suit, Pittsfield Township's insurers will pay $1.7 million in damages and attorneys' fees.  CAIR-MI described this as "one of the largest-ever RLUIPA settlements."  As part of the settlement, Michigan Islamic Academy agreed to add a residential development with "significant landscape buffering" between the school and adjacent residential lots.

Muslim Palestinian Teacher's Discrimination Claims Survive Motion To Dismiss

In Hashem v. Hunterdon County, (D NJ, Sept. 20, 2016), a New Jersey federal district court refused to dismiss certain claims by a New Jersey high school history teacher that her school and her supervisors discriminated and retaliated against her on the basis of religion, race and national origin.  The teacher, Sireen Hashem, a Muslim Arab of Palestinian descent, was reprimanded for showing a video, at the suggestion of another teacher who had also shown it, featuring the young Nobel laureate Malala Yousafzai, the Pakistani girl's education advocate. Subsequently Hashem's contract was not renewed.  According to the court:

Hashem alleges that she was instructed not to "teach current events in the same manner as her non-Arab, non-Palestinian and non-Muslim colleagues." ...On a separate occasion, Hashem was allegedly told "not [to] mention Islam or the Middle East in her class, and that she "should not bring her culture, life experience or background into the classroom."

While dismissing a number of her claims, the court allowed the teacher to move ahead with claims for employment discrimination, disparate treatment, retaliation and discriminatory discharge.

Baptist Joint Committee Appoints New Executive Director

In a press release issued earlier this week, the Baptist Joint Committee for Religious Liberty announced that it has chosen Amanda R. Tyler as its next executive director. She will replace Brent Walker who is retiring.  The Baptist Joint Committee is a D.C.-based advocacy group that promotes both religious liberty and separation of church and state.

Appeals Court Upholds Ban On Father Discussing Religion During Child Visitation

In Koch v. Koch, (FL App., Sept. 28, 2016), a Florida state appellate court upheld a trial court's order in a parenting plan that was part of a divorce proceeding prohibiting the father from discussing any religious matters during his two hours per week visitation time with his 3 children.  The trial court had concluded that religiously-based admonishments, threats of damnation, and demonization of the children’s mother was abusive to the children, causing them anxiety and severe emotional distress.

Jewish Religious Court Lacks Standing To Appeal Bankruptcy Stay of Its Proceedings

As previously reported, last year a New York federal bankruptcy court held that the statutory automatic stay of proceedings against a debtor that is triggered by the filing of a petition in a bankruptcy reorganization applies to invalidate proceedings against a debtor and its principals brought in a Jewish religious court (bais din). In In re Congregation Birdchos Yosef, (SD NY, Sept. 27, 2016), a New York federal district court dismissed for lack of standing an appeal of the bankruptcy court's decision brought by the Jewish religious court involved:

 Any effect on the Bais Din from that decision is indirect, seeks to challenge orders directed at third parties, and is insufficient to confer standing.....

Appellant argues that “[t]he Bais Din is a gatekeeper who ensure [sic] that community members can seek to enforce community standards and Jewish law,” and that the Bankruptcy Court’s Order enforcing the automatic stay “interferes with this function.”... This contention underscores the lack of any direct, financial impact the Bankruptcy Court’s Order has had – or could have – on the Bais Din....

That the Bais Din claims that its or its constituents’ constitutional right to the free exercise of religion was impaired by the Bankruptcy Court’s ruling does not give it standing.

Supreme Court Calendar Adjusted This Year For Jewish High Holidays

National Law Journal reports that the U.S. Supreme Court has adjusted its argument calendar to accommodate the Jewish High Holidays which this year come in early October.  The first day of Rosh Hashana falls on Oct. 3-- the first Monday in October.  While 28 USC Sec. 2 requires the Supreme Court to begin its term on the first Monday in October, this year the Court will only hold a brief session that day for announcements and swearing in new members of the Supreme Court bar. The Court also will not sit at all on Yom Kippur, October 12.  Currently 3 Justices are Jewish-- Justices Ginsburg, Breyer, Kagan.  Supreme Court nominee Merrick Garland is also Jewish.

Islamist Sentenced By International Criminal Court For Destruction of Religious Sites In Mali

In In the Case of  The Prosecutor v. Ahmad Al Faqi Al Mahdi, (ICC,  Sept. 27, 2016), a trial chamber of the International Criminal Court sitting in The Hague unanimously found Ahmad Al Faqi Al Mahdi guilty of war crimes for directing attacks against religious and historic buildings-- primarily mausoleums that were UNESCO World Heritage sites-- in Timbuktu, Mali in 2012. The Chamber sentenced Al Mahdi, leader of a morality brigade known as the Hesbah, to 9 years in prison.  A summary issued by the International Court sets out background:

In early April 2012, following the retreat of Malian armed forces, the groups Ansar Dine and Al-Qaeda in the Islamic Maghreb (AQIM) took control of Timbuktu. From then until January 2013, Ansar Dine and AQIM imposed their religious and political edicts on the territory ... the Hesbah....

The mausoleums of saints and mosques of Timbuktu are an integral part of the religious life of its inhabitants.... These mausoleums are frequently visited by the residents – they are places of prayer and, for some, places of pilgrimage....

Mr. Al Mahdi expressed his opinion that all Islamic jurists agree on the prohibition of any construction over a tomb, but recommended not destroying the mausoleums so as to maintain relations between the population and the occupying groups. Nevertheless, Ag Ghaly [the Ansar Dine leader] gave the instruction to proceed.... Despite his initial reservations, Mr Al Mahdi accepted to conduct the attack without hesitation on receipt of the instruction.... He ... wrote a sermon dedicated to the destruction of the mausoleums, which was read at the Friday prayer at the launch of the attack. He personally determined the sequence in which the buildings were to be attacked.

The International Criminal Court issued a press release announcing the decision. AP reports on the case.