Preliminary Injunction Against Transgender Student Access To Restrooms Is Denied

In Students and Parents for Privacy v. U.S. Department of Education, (ND IL, Oct. 18, 2016), an Illinois federal magistrate judge issued a report and recommendation denying a preliminary injunction sought by plaintiffs who wish to require suburban Chicago schools to segregate restrooms and locker rooms on the basis of students’ biological sex assigned at birth. The suit also seeks to enjoin the federal government from enforcing its rule requiring transgender students have access to rest room and locker rooms that conform to their gender identity. The court said in part:

The law in the Seventh Circuit concerning the meaning of the term “sex” as used in Title IX may be in flux. Just last week, the Seventh Circuit vacated a decision by a panel of that court that adhered to a longstanding interpretation of the word “sex” in ... Title VII of the Civil Rights Act of 1964 ... as very narrow, traditional and biological. Plaintiffs relied heavily on the now vacated panel decision.... Recent rulings by courts around the country including a district court in the Seventh Circuit evince a trend toward a more expansive understanding of sex in Title IX as inclusive of gender identity. Therefore, the Court cannot say with confidence that Plaintiffs have a likelihood of success on the merits.... 

High school students do not have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs. In addition, sharing a restroom or locker room with a transgender student does not create a severe, pervasive, or objectively offensive hostile environment under Title IX given the privacy protections District 211 has put in place in those facilities and the alternative facilities available to students who do not want to share a restroom or locker room with a transgender student....

As previously reported, yesterday the U.S. Supreme Court agreed to review a case from the 4th Circuit raising similar issues.

Supreme Court Grants Review In Transgender School Bathroom Case

The U.S. Supreme Court today granted certiorari in Gloucester County School Board v. G.G., (Docket No. 16-273, cert. granted 10/28/2016) (Order List). The grant of review was limited to Questions 2 and 3 in the Petition for Certiorari.  In the case, the U.S. 4th Circuit Court of Appeals held that a Virginia school board's policy barring a transgender boy (who had not undergone sex-reassignment surgery) from using the boy's rest rooms at his school violates Title IX's ban on discrimination on the basis of sex. (See prior posting.)

NY Municipalities Settle Discrimination Suit Against Them Alleging Anti-Hasidic Bias

JTA reports that the upstate Village of Bloomingburg and the Town of Mamakating, New York have reached a settlement with a developer who sued claiming that the municipalities engaged in an anti-Semitic conspiracy to prevent more Hasidic Jews from moving into the area. The lawsuit filed in 2014 (see prior posting) claimed, among other things, that the municipalities violated the fair housing and civil rights laws in blocking the completion of a 396-unit townhouse project out of fear that would be occupied mostly by Hasidic families. Under the settlement, the developer's company Sullivan Farms II will be be paid by the municipalities' insurer $1.595 million on behalf of  Mamakating and $1.305 million on behalf of Bloomingburg.

European Parliament Lifts Jean-Marie Le Pen's Immunity To Allow Race Hatred Prosecution

AFP and The Forward report that on Tuesday the European Parliament lifted the legal immunity of Jean-Marie Le Pen, former head of France's far-right National Front Party. The move allows French prosecutors to put Le Pen on trial for inciting racial hatred.  The charges stem from a 2014 interview video posted on the National Front website in which Le Pen countered criticism from singer Patrick Bruel, who is Jewish, by using a reference to the Nazi gas chambers. Le Pen said Bruel should "go in the oven."

Synagogue Cited For Loud Siren Marking Start of Sabbath

According to a report yesterday from WABC-TV News, New York City's Department of Environmental Protection (DEP) has issued a citation to a Brooklyn synagogue because of the loud siren it uses weekly to announce the beginning of the Sabbath.  The 106-decibel siren installed this summer by Congregation Bais Yaakov Nechemia D'satmar is sounded for 90 seconds twice each Friday-- about 15 minutes apart. A DEP hearing is scheduled for November 22.

Elaborate Christmas Display Is Not Public Nuisance

According to the Broward County Sun Sentinel, a Florida state trial court judge yesterday dismissed a suit by the city of Plantation, Florida seeking to enjoin Mark and Kathy Hyatt from erecting the elaborate Christmas display that they have annually put up at their home. (See prior posting.) The court ruled that the city had failed to show that the display-- containing 200,000 lights, a movie screen a 30-foot tree and a Ferris wheel for stuffed animals-- constitutes a public nuisance.

3rd Circuit Judge Questions Religious Mix of Syrian Refugees

In Heartland Alliance National Immigrant Justice Center v. U.S. Department of Homeland Security, (7th Cir., Oct. 21, 2016), the U.S. 7th Circuit Court of Appeals in a Freedom of Information Act case upheld the government's refusal to disclose to an advocacy group for asylum seekers the names of so-called "Tier III terrorist organizations." Judge Daniel Manion filed a concurring opinion with extensive dicta questioning the religious mix of Syrian refugees who have been admitted to the country.  He said in part:

I write separately for a second, critical reason, which is my concern about the apparent lack of Syrian Christians as a part of immigrants from that country. It is possible that our case bears a direct link to this enigma.  It is well‐documented that refugees to the United States are not representative of that war‐torn area of the world. Perhaps 10 percent of the population of Syria is Christian, and yet less than one‐half of one percent of Syrian refugees admitted to the United States this year are Christian.... To date, there has not been a good explanation for this perplexing discrepancy.

This is not to suggest that any refugee group is more or less welcome: quite the contrary. The good people of this country routinely welcome immigrants from all over the world. But in a democracy, good data is critical to public debate about national immigration policy.

The Daily Signal reports on Manion's opinion.

Court Allows Suit Against Catholic Order and Diocese Over Pedophile Priest To Continue

In Doe v Congregation of the Mission of St. Vincent De Paul in Germantown, (Queens Cty. NY Sup. Ct., Sept. 13, 2016) a New York trial court in a decision published only this week refused to dismiss negligent hiring and retention, negligent training and supervision, and fraudulent concealment claims against the Vincentian Order and the Roman Catholic Diocese of Rockville Centre. The suit revolves around a priest, Augusto Cortez, who in 2009 was placed on 6 years' probation under a Personal Safety Plan administered by the Vincentians after he pleaded guilty to forcible touching of a 12 year old Brooklyn girl. Plaintiffs in this case allege that Cortez abused their young daughter beginning as early as 2009 (when she was 2 years old) and continuing until 2014 when the abuse was discovered. Cortez fled the country after being questioned by police about the allegations. A New York Times report when the suit was filed in 2015 elaborates:

After [Cortez's] arrest in 2008 ... the plaintiff’s mother sought the counsel of a priest of Mr. Cortez’s order who worked at a parish church in the Diocese of Rockville Centre. He told her that whatever had transpired between Mr. Cortez and the girl in Brooklyn “was just an accident”.... The girl’s mother accepted the priest’s interpretation, the lawsuit said, and “believed it was safe for her and her family” to continue their friendship with Mr. Cortez, who, like the girl’s parents, are from Guatemala.

IRS' Tax Exempt Division Getting New Leader

According to BNA Daily Report for Executives (Oct. 25) [subscription required], the Internal Revenue Service's Tax Exempt and Government Entities Division (TE Division) is undergoing another change in leadership.  Tamera Ripperda who replaced the embattled Lois Lerner as director and has apparently successfully streamlined the Division and eliminated a large backlog is moving to become acting deputy commissioner of the Small Business and Self Employed Division.  The new acting head of the TE Division beginning November 14 will be Margaret A. Von Lienen, who is now director of examinations for exempt organizations.

New York's Tax Exemptions For Religious Property Are Growing

The Lower Hudson Journal News this week is running a series on New York's tax exemption policy. An overview of the series reports in part:

Statewide: Thirty-one percent of New York's land value is tax exempt. Of its $2.8 trillion in land value, about $866 billion of it never gets billed.

Religious groups: The value of religious groups' land bypassed for taxation has nearly doubled from $14 billion to $26 billion between 1999 and 2015. Rochester (568 properties worth $141 million) and Ramapo (523 properties worth $265 million) are among the top five communities with the highest number of tax-exempt religious nonprofit properties in the state.

Yesterday's installment titled New York religious property tax breaks soar heavenward reports in greater detail on the increased amount of property receiving tax exemptions because of use by non-profit religious institutions.

Discovery Demand For Pastor's Sermons Generates Controversy

As previously reported, last April Eric Walsh, a doctor and public health expert, filed a religious discrimination suit against the Georgia Department of Public Health alleging that his termination shortly after he was hired was based on the content of sermons he had given as a Seventh Day Adventist lay minister. Now the Georgia Department of Public Health's discovery requests (full text) in the case have generated a new religious freedom controversy. Among the 22 categories of documents that plaintiff was requested to produce was:

Please produce a copy of your sermon notes and/or transcripts.

According to a First Liberty press release yesterday, Walsh will not turn over his sermons unless he is forced to do so, saying that no government has the right to require a pastor to turn over his sermons. Other advocacy groups have reacted in even stronger terms.  For example, Concerned Women for America captioned its press release "Georgia 'Gestapo' Combing Through Pastor's Sermons."

New Survey Findings On Religion and American Culture and Politics

The Public Religion Research Institute this week released its findings from the 2016 American Values Survey in a 48-page report titled The Divide Over America's Future: 1950 or 2050?. While the report is wide-ranging, portions dealt with religion and American culture and politics.Here are some excerpts from the report's Executive Summary:

Americans are divided about whether American culture and way of life have changed for worse (51%) or better (48%) since the 1950s.....

No group has a dimmer view of American cultural change than white evangelical Protestants: nearly three-quarters (74%) say American culture has changed for the worse since the 1950s....

In 2016, Americans’ social networks are strongly segregated by party loyalties.... There is also evidence that American churches are highly segregated by party. More than eight in ten (83%) Trump supporters who attend religious services at least weekly estimate that most of their fellow church members are supporting Trump. Similarly, more than three-quarters (78%) of Clinton supporters who attend religious services at least weekly estimate that most of their fellow church members are supporting Clinton.

Candidate's Religious Views Become Issue In Montana Supreme Court Race

The conservative Christian religious beliefs of one of the candidates for Justice of the Montana Supreme Court-- attorney and law professor Kristen Juras-- has become a campaign issue. In endorsing her opponent Dirk Sandefur, the Bozeman Daily Chronicle last week said in part:

In an email sent to a colleague at the UM she stated, “After lots of prayer I decided to run…I think there are going to be a lot of cases affecting religious freedom that arise over the next several years, and I’d like to be part of the decision-making body that will be addressing those issues.”

Juras was quoted earlier this year by the Montana Christian Journal: “It is important to elect justices who respect all of our fundamental rights, including the free exercise of religion, and who have not pre-determined that one right should outweigh another.”

Just like [Republican nominee for Montana governor] Greg Gianforte, Juras uses “religious freedom” as a dog whistle in attempts to deny civil rights to the LGBTQ community. Juras’ bias and lack of experience make her unfit for the Supreme Court. Dirk Sandefur is hard-working, fair, and the only qualified candidate.

The Missoulian also raises questions about the impact of Juras' religious views.

Complaint Filed Against Catholic Hospitals Over Refusal To Perform Sterilizations

The ACLU announced yesterday that it has filed an Administrative Complaint (full text) with the Department of Health and Human Services Office for Civil Rights against Ascension Health challenging its reliance on the U.S. Conference of Catholic Bishops Ethical and Religious Directives for Catholic Health Care Services. Specifically the complaint contends that the refusal by a Michigan hospital to perform sterilization (tubal ligation) during childbirth amounts to pregnancy-related discrimination. The Affordable Care Act prohibits discrimination on the basis of sex in any health care program or activity receiving federal funds. An ACLU press release announced the filing of the complaint.

Suit Challenges Utah's "Anti-Gay School Laws"

Suit was filed in Utah federal district court last week challenging Utah's so-called "Anti-Gay School Laws." As summarized in a press release from the National Center for Lesbian Rights:

The lawsuit challenges several Utah laws and regulations that prevent positive portrayals of gay, lesbian, and bisexual people in curricula, classroom discussions, and student clubs. The lawsuit claims that these discriminatory restrictions create a negative environment for LGBT students, perpetuate discrimination and bullying, and contribute to the high rates of anti-LGBT harassment in Utah schools. For instance, one plaintiff experienced severe physical and verbal harassment from other students in his kindergarten class based on his gender non-conformity. When his parents complained to school leaders about the harassment, they were told that the school district could not protect their son because of these discriminatory school laws.

The complaint (full text) in Equality Utah v. Utah State Board of Education,(D UT, filed 10/21/2016), contends that the statutes and regulations being challenged violate the 1st and 14th Amendments, as well as Title IX and the Equal Access Act.

Settlements Revealed In Abuse Cases Against Jewish School

A suit filed last week in state court in New York reveals information about the previously secret settlements by an Orthodox Jewish school in two cases of sexual abuse dating back to the 1970's. The Gothamist and the New York Post report that the settlements totaling $2.1 million were reached in 2014 with two plaintiffs who were abused as young boys by Rabbi Joel "Yehuda" Kolko who was kept on for 25 years as a teacher at Yeshiva Torah Temimah in Brooklyn. The settlements came to light when the victims now filed suit for $1 million of the promised settlements that have not been paid. It has been alleged that Rabbi Kolko had abused numerous other students, though an internal investigation by the school rejected the claims. In 2012 in a plea agreement, Kolko pleaded guilty to two misdemeanor counts of child endangerment.

Northern Ireland Appeals Court Upholds Anti-Gay Discrimination Finding Against Bakery

In a widely watched case, the Court of Appeal in Northern Ireland yesterday upheld the finding of a trial judge that a bakery had illegally discriminated on the basis of sexual orientation in the  provision of goods and services to the public when it refused an order for a cake for a private event marking the end of 'Northern Ireland Anti-homophobic Week' and the political momentum towards same-sex marriage legislation.  The cake was to feature a picture of 'Bert and Ernie' (the logo for QueerSpace) with the caption, "Support Gay Marriage."  In Lee v. McArthur, (NI CA, Oct. 24, 2016), the 3-judge panel rejected the religious freedom and compelled speech defenses advanced by Ashers Bakery.  The court rejected the notion that the cake forced the bakery to express approval for same-sex marriage, saying in part:

The fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either.

The court rejected broadly defendants' religious discrimination arguments, saying:

Anyone who applies a religious aspect or a political aspect to the provision of services may be caught by equality legislation, not because the legislation treats their religious belief or political opinion less favourably but because that person seeks to distinguish, on a basis that is prohibited, between those who will receive their service and those who will not....  In the present case the appellants might elect not to provide a service that involves any religious or political message. What they may not do is provide a service that only reflects their own political or religious belief in relation to sexual orientation.

The Guardian, reporting on the decision, says that the decision will be appealed to the UK's Supreme Court.

Recent Articles of Interest

From SSRN:

• Susanna Mancini, Global Religion in a Post-Westphalia World, (Handbook on Global Constitutionalism (A. Lang & A. Wiener eds.), Elgar Publishing (2017 Forthcoming)).
• Steven Aiello, Islamic and Jewish Law Approaches to Killing, (October 15, 2016).
• Rangita de Silva de Alwis & Indira Jaising, The Role of Personal Laws in Creating A 'Second Sex', (New York University Journal of International Law and Politics, Vol. 48, Pg. 1085, 2016).
• Alan C. Weinstein, Regulation of Religious Uses Under the Religious Land Use and Institutionalized Persons Act, (Local Government, Land Use, and the First Amendment, American Bar Association, 2017 Forthcoming).
• Effie Fokas, Banal, Benign or Pernicious? Religion and National Identity From the Perspective of Religious Minorities in Greece, (New Diversities, 2015, Vol. 17, No. 1, 47-62).
• Daphne Gilbert, Let Thy Conscience Be Thy Guide (But Not My Guide!): Physicians and the Duty to Refer, (McGill Journal of Law and Health 2016 10(2)).
• Neil Siegel, The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent, (Yale Law Journal Forum, Vol. 126, p.164 (2016)).
• Fatmir Halili & Arif Riza, The Betrothal and Marriage - According to Islamic Law (Shariah) and Under the Secular System, (October 15, 2016).

From SmartCILP and elsewhere:

• Gregory M. Lipper, The Contraceptive-Coverage Cases and Politicized Free-Exercise Lawsuits, University of Illinois Law Review, Vol. 2016. pp. 1331- 1346.
• Yifat Bitton, Suspension, Hu(wo)man Rights and Torts: Discriminatory Religious Practices and Hu(wo)man Rights Suspension Tactics in Remedying Feminine Suffering Through Tort Law, 14 Seattle Journal for Social Justice 669-726 (2016).
• Charles Leben, Hebrew Sources in the Doctrine of the Law of Nature and Nations in Early Modern Europe, 27 European Journal of International Law 79-106 (2016).
• Marvin Lim, Human Dignity and Punishment in Judaic and Islamic Law: War and the Death Penalty, [Abstract], 22 Southwestern Journal of International Law 303-358 (2016).
• Shlomo C. Pill, Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism and the Jewish Legal Tradition, 64 Buffalo Law Review 349-411 (2016).

Recent Prisoner Free Exercise Cases

In Peele v. Klemm, (3d Cir., Oct. 17, 2016), the 3rd Circuit affirmed the dismissal of a Muslim inmate's complaint that a Department of Corrections policy restricts rights to attend Eid al-Adha and Eid al-Fitr feasts. Inmates were required to pay for the feast and had to participate in all of Ramadan.

In Wilkins v. Lemon, 2016 U.S. Dist. LEXIS 143491 (ND IN, Oct. 17, 2016), an Indiana federal district court allowed a Muslim inmate to move ahead on claims for damages and injunctive relief for being denied halal meat, prayer oils and festive foods for the Eids.

In Biggins v. Coupe, 2016 U.S. Dist. LEXIS 143696 (D DE, Oct. 14, 2016), a Delaware federal district court held that an inmate's in forma pauperis free exercise claim is barred by the 3-strike rule even though it was brought as a mandamus action.

In Abreu v. Travers, 2016 U.S. Dist. LEXIS 145171 (ND NY, Oct. 20, 2016), a New York federal district court held because plaintiff failed to identify his religion, it could not determine if the denial of one kosher meal placed a substantial burden on his religious beliefs.

In Wallace v. Olivarria, 2016 U.S. Dist. LEXIS 146380 (SD CA, Oct. 21, 2016), a California federal district court dismissed an inmate's complaint that his religious practice was burdened by changing his schedule for his prison job.

"Blessing" Scam Leads To Hate Crime Charges

Last week, the Kings County (Brooklyn), New York district attorney announced that a 44-year-old woman has been indicted on charges of grand larceny as a hate crime for taking $160,000 in cash and jewelry from two Chinese women in separate incidents involving the same type of scam. The victims were told that they or family members would die because of a curse that could only be removed by gathering large sums of cash and jewels to be blessed. The victims were told to place the cash and jewels in a bag for the blessing.  When the victims later opened the bag, they found the cash and jewels gone. According to NBC News, the hate crime charges were based on the theory that the victims were targeted because of their Chinese ethnicity and because of their religious spiritual beliefs.