Saturday, October 15, 2016

Suit Charges Jehovah's Witness Congregation With Negligence In Employing Sexual Attacker

The Salt Lake Tribune reports on a suit filed in Utah state court last Wednesday against a Roy, Utah, Jehovah's Witness congregation, church leaders, and the Watchtower Bible and Tract Society charging negligence in allowing a man with a history of inappropriate sexual behavior to become an instructor in the church. Plaintiff alleges that she was sexually attacked by the instructor at least three times.  She also charges that the Roy church created a judicial committee to investigate whether the girl engaged in inappropriate sexual behavior, forcing plaintiff and her parents to listen to a 4-5 hour recording of one of the purported sexual attacks on her.

Buddhist Center Can Pursue Misrepresentation and As Applied, But Not Facial, RLUIPA, Challenges [CORRECTED]

In Thai Meditation Association of Alabama v. City of Mobile, 2016 U.S. Dist. LEXIS 142651 (SD AL, Oct. 12, 2016), an Alabama federal magistrate judge recommended dismissing facial claims under RLUIPA by a Buddhist meditation center whose zoning approval was denied.  The court rejected facial RLUIPA equal terms, discrimination and substantial burden challenges, but allowed plaintiff to proceed on its "as applied" challenges under RLUIPA.  The magistrate judge also recommended allowing plaintiff to move ahead with a negligent misrepresentation claim growing out of a zoning official's assurances that the meditation center would be treated as a house of worship for zoning purposes and that planning approval rather than seeking  use variance was the proper procedure to follow.

UPDATE: The magistrate's recommendations were adopted by the court in Thai Meditation Association of Alabama v. City of Mobile, 2016 U.S. Dist. LEXIS 150360 (SD AL, Oct. 31, 2016).

9th Circuit Upholds Required Disclosures By Pregnancy Clinics

In National Institute of Family and Life Advocates v. Harris, (9th Cir., Oct. 14, 2016, the 9th Circuit Court of Appeals upheld California's FACT Act which requires licensed pregnancy counseling clinics to disseminate a notice on the existence of publicly-funded family planning services, including contraception and abortion.  Unlicensed clinics must disseminate a notice that they and their personnel are unlicensed. The court affirmed the district court's denial of a preliminary injunction to three religiously-affiliated non-profits, rejecting free speech and free exercise objections. The court concluded that the required notice by licensed facilities is professional speech subject to intermediate scrutiny. UPI reports on the decision. [Thanks to Scott Mange for the lead.]

Friday, October 14, 2016

English Consistory Courts Deny Requested Headstone Inscriptions

In England, Consistory Courts are ecclesiastical courts with jurisdiction over Church of England property and churchyards.  Two recent Consistory Court opinions deny families' requests for inscriptions on tombstones.  Law & Religion UK reports on a September decision from the Diocese of Carlisle refusing to allow the addition of a Masonic symbol to a headstone, concluding it is in violation of Churchyard Regulations. In a second case, The Telegraph reported yesterday on a decision from the Diocese of Ely refusing to allow a sentimental statement from a wife on her husband's headstone. The court said: A memorial stone is not the right place for a statement about how members of the family feel about the deceased nor how they would address him or her were they still alive. Passages of scripture, which have a timeless quality, are to be preferred."

3rd Circuit Gives Muslim Inmate Victory On Retaliation and RFRA Claims

In Mack v. Warden, (3d Cir., Oct. 11, 2016), the U.S. 3rd Circuit Court of Appeals in a lengthy opinion gave an unusual victory to an inmate who claims that anti-Muslim harassment by two correctional officers caused him to refrain from praying while at his paid work assignment at a federal prison commissary.  He contends that he was terminated from his work assignment for orally complaining to a supervisor about the harassment.  The suit was filed pro se, and inmate Charles Mack lost at the trial court level.  However he prevailed on a number of his claims on appeal at which he was represented by law students from Duke University's Appellate Litigation Clinic.

One of the defendant officers slapped Mack on his back, sticking an "I Love Bacon" sign on him, and then threatened to have him fired when he later objected.  The appeals court held 2-1 that Mack's oral complaint to a prison guard about the mistreatment qualifies as a petition for the redress of grievances protected by the 1st and 14th Amendments.  It thus supports a 1st Amendment retaliation claim. Second the appeals court held unanimously that a claim for damages under RFRA (as opposed to RLUIPA) lies against individual officers for their ultra vires acts, even though a prison policy or regulation is not being challenged, and that the alleged conduct substantially burdened plaintiff's religious exercise. The court however refused to extend a Bivens damage remedy for 1st Amendment free exercise violations and also dismissed plaintiff's equal protection claim. Penn Live reports on the decision.

Thursday, October 13, 2016

Alabama Chief Justice Appeals Suspension With Cryptic Motion For Recusals

As previously reported, two weeks ago Alabama's Court of the Judiciary suspended Alabama Supreme Court Chief Justice Roy Moore for the remaining two years of his term on charges stemming primarily from his 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 controlling U.S. Supreme Court precedent to the contrary.  The decision has been followed by a series of appellate moves by Moore.  On Sept. 30, Moore filed a Notice of Appeal with the Alabama Supreme Court. Then on Oct. 10, Moore filed a Motion (full text) to recuse four current and three former Alabama Supreme Court Justices from hearing the appeal.  The grounds for seeking recusal of 6 of the 7 were filed only in a sealed affidavit with the following cryptic explanation:
Because Case No. 1150818 has been maintained under seal by the present and former justices who sat on that case, the argument for this section is not presented in this public filing. However, the facts presented in the attached Sealed Affidavit of Chief Justice Roy S. Moore amply demonstrate that the Justices, present and former, who sat on Case No. 1150818, have disqualified themselves by their biased and unconscionable actions in that case not only from participating in this case but also from playing any role in selecting a substitute Court.... Media organizations and members of the public, if they so choose, may intervene in Case No. 1150818 to demand that the records of that case be made public.
The motion also argued:
The selection of replacement Justices should be made by a random drawing from a pool of names consisting of all sitting circuit judges.
In an October 12 public statement, Moore urged the unsealing of the referenced case, saying in part:
I call upon the press to demand that the Alabama Supreme Court unseal Case No. 1150818 and, if necessary, to intervene in that case. The public has a right to know why I have requested that the justices, who participated in that case, be disqualified from playing any role in my appeal. The Court has refused my requests to unseal Case No. 1150818. I ask the Supreme Court and the media to act...

EEOC General Counsel Will Leave In December

According to the National Law Journal, earlier this week P. David Lopez announced that he will resign in December as general counsel of the U.S. Equal Employment Opportunity Commission. Lopez, who has held his position for six and one-half years, is the longest-serving general counsel in the agency's history.  His term was scheduled to end in 2018.  The EEOC enforces U.S. employment discrimination laws, including laws barring religious discrimination in employment.

Oklahoma Governor Declares Today "Oilfield Prayer Day"

On Oct. 10, Oklahoma Governor Mary Fallin issued a Proclamation (full text) declaring today "Oilfield Prayer Day." The Proclamation invites "people of all faiths to thank God for the blessings created by the oil and natural gas industry and to seek His wisdom and ask for protection." Americans United wrote the Governor asking her to withdraw the Proclamation. (Full text of letter).

Law and Religion Prof Seriously Injured In Attack

Above the Law reports that law professor Leslie Griffin, an expert and prolific writer in the area of law and religion, was seriously injured when she was attacked in a Henderson, Nevada park near her home last Friday.  The brutal attack, allegedly perpetrated by a man who was out of jail on supervised release after a domestic battery incident, occurred while Griffin was jogging.  Griffin is William S. Boyd Professor of Law at University of Nevada Law Vegas Law School.  We all wish Prof. Griffin a full and speedy recovery.

Wednesday, October 12, 2016

Churches Sue To Enjoin Massachusetts Ban on Gender Identity Discrimination

Four churches have filed a federal lawsuit alleging that recent changes to Massachusetts' public accommodation anti-discrimination law violate the churches' free exercise and free speech rights. As previously reported,  the law now bans discrimination on the basis of gender identity, and requires public accommodations to allow restroom use consistent with a person's gender identity. Last month, the Massachusetts Commission Against Discrimination released a Gender Identity Guidance setting out the Commission's interpretation of the new law and suggesting that in some situations, the anti-discrimination ban can apply to churches. The complaint (full text) in Horizon Christian Fellowship v. Williamson, (D MA, filed 10/11/2016), contends that all church activities, even ones not overtly religious, are expressions of the churches' religious mission.  The complaint focuses on provisions in the law that bar public accommodations from discriminating and from inciting others to discriminate.  It alleges:
22. The Churches desire to preach and post on their websites sermons addressing God’s design for human sexuality and the Churches’ beliefs about “gender identity,” but reasonably fear that if they were to do so they would violate the Act’s prohibitions.
23. The Act’s prohibitions would also apply to a church bulletin and website that included an explanation that the women’s restrooms are reserved for biological females, while the men’s restrooms are reserved for biological males.
Plaintiffs also filed a motion for a preliminary injunction and a memorandum in support of the motion (full text). ADF issued a press release announcing the filing of the lawsuit.

TRO Lifted In Challenge To Kaporos Ceremonies

Just as Yom Kippur was beginning on Tuesday evening, a California federal district court dissolved a TRO that it had issued last week (see prior posting) in a challenge under California's business practices law to the pre-Yom Kippur ritual of kaporos. In addition to lifting the TRO, the court ordered the parties to meet to set a date for a preliminary injunction hearing. (Full text of court order). The case has attracted significant attention, including the filing of an amicus brief by a Houston law professor Josh Blackman. AP reports on developments. The Atlantic says that the restraining order had no effect because defendants (Chabad of Irvine) had not scheduled a ceremony.  Instead Jews performed the koporos ceremony at a local slaughterhouse because of changes in California law.

Tuesday, October 11, 2016

Denver Archbishop Reflects on How a Catholic Should Vote in 2016

Last week, Denver Archbishop Samuel Aquila posted a lengthy discussion on the Archdiocese's website titled Voting as a Catholic in 2016: How Should a Catholic Vote. Recounting a dinner conversation he had recently had with a group of Catholics, Aquila said in part:
All pretty much agreed that, when it comes to life issues, Catholic politicians on both sides of the aisle have put party ideology before their faith and living their faith in the public square.
The Archbishop's comments focused primarily on issues of abortion, the Obamacare contraceptive coverage mandate and Proposition 106 on the Colorado ballot to legalize physician assisted suicide.

Federal Commission Issues Report on Human Rights In China

Last week, the Congressional-Executive Commission on China (created by law in 2000 to monitor China's international human rights compliance) released it 346-page 2016 Annual Report (full text). The letter transmitting the Report to President Obama includes a summary of findings on religious liberty:
The report notes the Chinese government’s efforts to expand political influence over the activities and growth of religious communities through both a national-level “sinicization” campaign and the convening of the first National Conference on Religious Work in 15 years. The report also notes the detention of Catholic clergy and Falun Gong practitioners, the ongoing demolition campaign targeting church buildings in Zhejiang province, and continued efforts to control the leadership of Tibetan Buddhism and restrict the religious practices of Uyghur Muslims. The report recommends expanded U.S. leadership on international religious freedom, through coordinated multilateral efforts and bilateral interactions that stress the strategic and economic value of promoting this fundamental freedom. The report also recommends that the Administration use existing law to restrict entry visa access for individuals complicit in severe religious freedom violations.
Crux has more on the Annual Report released on Oct. 6.

Muslim Caseworker Sues Charging Religious Discrimination

A Bangladeshi Muslim woman who was a social worker and had been employed as a case manager by a behavioral healthcare company filed suit in an Oregon state court last week charging religious, racial, national origin and disability discrimination in her termination.  The complaint (full text) in Rahman v. Cascade Behavioral Healthcare, Inc., (OR Cir., Ct., filed 10/7/2016), claims, in part, that adverse employment action against her stemmed from her refusing for religious reasons to shake hands with men (including her boss), her wearing of a hijab, and her praying at work up to three times per day. The Oregon Bureau of Labor & Industries had dismissed her complaint filed with them, finding inadequate evidence of discrimination. (Full text of OBLI order).  The Oregonian reports on the lawsuit.

Monday, October 10, 2016

Religious Comment Does Not Invalidate Civil Protection Order

In Majeed v. Majeed, (OH App., Oct. 7, 2016), an Ohio appellate court held that a religious comment made by a magistrate at the end of a hearing at which the magistrate agreed to issue a wife a domestic violence civil protection order was not grounds for overturning the order.  The wife, who testified that her husband was Muslim, had the following exchange with the magistrate at the end of the hearing at which the husband did not appear:
The Petitioner: Thank you very much for your time. The Court: Be careful. Take care of yourself. The Petitioner: Yes, with God’s help I’ve been depressed and it’s the worst feeling in the world to feel like Jesus is not real. I just got back with Jesus and I’d like it to stay there.  The Court: An[d] He would like you to stay there also. The Petitioner: Yes, ma’am. The Court: Thank you, ma’am. The Petitioner: God bless.
The appeals court said in part: "there is nothing in the record to indicate that religious beliefs affected the trial court’s issuance of a domestic violence CPO."

Recent Articles of Interest

From SSRN:

Sunday, October 09, 2016

California Court Issues TRO Against Kaporos Practices

As previously reported, in late September an animal rights group filed suit against Chabad of Irvine in a California federal district court challenging Chabad's promotion of the pre-Yom Kippur ceremony of kaporos that involves use of live chickens which are then slaughtered. (Complaint in United Poultry Concerns v. Chabad of Irvine, (CD CA, filed 9/29/2016)). The complaint contended that defendants are in violation of California's unfair business practices law. On Oct. 6, the court on its own motion ordered plaintiff to show cause why the case should not be dismissed for lack of standing. (Full text of court order.)  On Oct. 7, plaintiff filed a response (full text) arguing in part:
UPC has standing under the Unfair Competition Law based on its diversion of organizational resources spent addressing Defendants’ unlawful activity and attempting to convince authorities to take action. 
The court was apparently convinced.  It issued another order (full text) on Oct 7 granting plaintiff a temporary restraining order barring defendants from killing chickens or other animals in exchange for a fee or donation in violation of California Penal Code Sec. 597(a). It set a hearing on whether to order a preliminary injunction for October 13, the day after Yom Kippur-- effectively barring the pre-Yom Kippur practice by defendants for this year.

Recent Prisoner Free Exercise Cases

In Rush v. Malin, 2016 U.S. Dist. LEXIS 137779 (SD NY, Oct. 4, 2016), a New York federal district court denied a preliminary injunction to a Shi'a Muslim inmate who was not permitted to observe Muharram/Ashura separately from Sunni Muslims.

In Khan v. Barela, 2016 U.S. Dist. LEXIS 139052 (D NM, Sept. 30, 2016), a New Mexico federal magistrate judge dismissed a complaint by a Muslim inmate that prison officials failed to give him a requested daily prayer schedule and Islamic Observance Calendar and required him to remain in a pod while Christian sermons were being presented.

Saturday, October 08, 2016

No Religious Exemption To Immunization Requirements For Merely Moral Objections

In Watkins-El v. Department of Education, (ED NY, Oct. 6, 2016), a New York federal district court refused to grant a preliminary injunction, upholding a New York school's denial of a religious exemption from immunization requirements for plaintiff's children. An exemption is available only for "genuine and sincere religious beliefs...." The court said in part:
Although plaintiff asserts that his religion is "Islamism" and that he is a Moor, he does not claim that the tenets of Islamism or Moorish culture prohibit vaccinations.... Instead, Plaintiff bases his opposition on the assertion that these vaccines contain "monkey cells, pork derivatives, and aborted human fetuses," which Plaintiff's religion dictates he cannot consume.... Plaintiff's opposition to these substances may be genuine and sincere, but he has not demonstrated that it stems from a religious, rather than simply moral, belief.... Furthermore, Plaintiff presents no evidence that these vaccines in fact contain the substances to which he objects.

First Grade Teacher's Age Discrimination Suit Dismissed Under Ministerial Exception

In Ciurelo v. St. Regis Parish, (ED MI, Oct. 7, 2016), a Michigan federal district court held that federal (ADEA) and state (ELCRA) age discrimination claims brought by a former 1st grade teacher in a Catholic school are barred by the ministerial exception doctrine. The teacher's contract was not renewed after eight years of teaching. Finding that plaintiff was the type of employee to whom the doctrine applies, the court said in part:
While this Court has considered all the factors identified in the Hosanna-Tabor majority opinion, it concludes that the paramount factor of religious function ... provides the decisional pathway here. Plaintiff was unquestionably engaged in two important religious functions on a daily basis: religious teaching for 20 to 30 minutes and leading the morning prayers. These activities are the hallmark of religious exercises through which religious communities transmit their received wisdom and heritage to the next generation of believers. The First Amendment provides a shield to the church and her officials against a secular government’s incursion by way of its employment-law litigation process, which may undermine the freedom to appoint those entrusted with such matters of faith.