President Issues 2016 Thanksgiving Day Proclamation

Today is Thanksgiving.  President Obama issued the formal Thanksgiving Day 2016 Presidential Proclamation yesterday.  It reads in part:

The Pilgrims were grateful they could rely on the generosity of the Wampanoag people, without whom they would not have survived their first year in the new land, and together they celebrated this bounty with a festival that lasted for days and prompted the tradition of an annual day of giving thanks.

This history teaches us that the American instinct has never been to seek isolation in opposite corners; it is to find strength in our common creed and forge unity from our great diversity. On that very first thanksgiving celebration, these same ideals brought together people of different backgrounds and beliefs, and every year since, with enduring confidence in the power of faith, love, gratitude, and optimism, this force of unity has sustained us as a people. It has guided us through times of great challenge and change and allowed us to see ourselves in those who come to our shores in search of a safer, better future for themselves and their families.

Indiana Appeals Court Hears Oral Arguments In RFRA Defense To Tax Evasion

On Monday, the Indiana Court of Appeals heard oral arguments (video of full arguments) in Tyms-Bey v. State of Indiana. In the case, defendant charged with tax evasion filed notice that he intended to raise a religious freedom defense under Indiana's Religious Freedom Restoration Act. The trial court struck the defense and defendant filed this interlocutory appeal.  Washington Post reports in more detail on the case.

Court Says Teacher Was Not Fired Because of His Religious Beliefs

In Diss v. Portland Public Schools, (D OR, Nov. 22, 2016), an Oregon federal magistrate judge granted summary judgment to defendants in a suit by former public school teacher William Diss who claims that he was fired because of his religious beliefs.  Diss, a devout Catholic, was active in the anti-abortion movement. When his school principal arranged for representatives of a federally-funded Teen Outreach Program to speak to students in various classes, Diss would not allow them to speak to his students because the outreach program was administered by the local Planned Parenthood organization. Diss pointed to this and to the principal's asking him to refrain from using religious phrases such as "God bless" in professional communications as evidence of violation of his First Amendment rights.  However, the court concluded:

Defendants have shown that they had valid, non-discriminatory reasons to discipline and terminate Plaintiff.  The record contains multiple reports from administrators and colleagues describing Plaintiff's ineffective and rigid teaching style, as well as a pattern of complaints about Plaintiff's disrespectful and demeaning conduct towards his students, colleagues, and administrators.

Trump Picks School Choice Advocate For Secretary of Education

The Detroit News reports that Donald Trump has chosen Betsy DeVos, a national leader in the school choice movement as his nominee for Secretary of Education:

DeVos is chair of the American Federation for Children, a Washington, D.C.-based single-issue organization devoted to expanding school of choice options across the country....

DeVos is a former Michigan Republican Party chairwoman whose husband, Dick, unsuccessfully ran for governor in 2006.

The DeVos family, heirs to the Amway Corp. fortune, are the most prolific donors to the Michigan Republican Party, GOP officeholders and candidates....

In 2000, Betsy and Dick DeVos funded an unsuccessful statewide ballot initiative to amend the state Constitution to allow tax dollars to be used for private school tuition through education vouchers. They have since advocated for school vouchers in other states.

Earlier today, before the choice was publicly announced, Breibart News carried an article opposing DeVos which it headlined: Potential Trump Education Chief Pick Betsy DeVos Is Pro-Common Core, Family Donated To Clinton Foundation.

UPDATE: DeVos says she is not a supporter of Common Core, clarifying her position on her website.

Court Again Refuses To Narrow Injunction Against Title IX Transgender Guidelines

In State of Texas v. United States, (ND TX, Nov. 20, 2016), a Texas federal district court denied defendants' request for a partial stay of the court's previously issued nationwide preliminary injunction against enforcement of Department of Education Title IX Guidelines barring discrimination by schools on the basis of gender identity. This is the second time the court has refused to narrow its preliminary injunction. Defendants had sought removal of non-plaintiff states from the reach of the injunction. The court said in part:

The Court remains convinced that Plaintiffs, not Defendants, have shown a great likelihood of success on the merits of their claims....   The federal statutes prohibiting discrimination on the basis of “sex”—the scope and meaning of which Defendants claim now includes gender identity—were promulgated more than forty years ago.... The federal government did not articulate, much less enforce, the Guidelines’ interpretation of sex as including gender identity for nearly fifty years after Title VII was passed in 1964 and the Court views this delay as strong evidence that Defendants will suffer no irreparable injury if a stay is denied and enforcement of the Guidelines delayed until their legality is established.

Liberty Counsel issued a press release announcing the decision.

2d Circuit Rejects Teacher's Suit Over Classroom Religious Displays

In Silver v. Cheektowaga Central School District, (2d Cir., Nov. 7, 2016), the U.S. 2nd Circuit Court of Appeals affirmed the dismissal of a lawsuit brought by a Christian high school science teacher who was told to remove her classroom display of several Bible verses, other statements about God and a picture of three crosses on a hill. She was also told to prevent guest speakers from promoting religion religiously-themed postings from her classroom. (See prior posting.) The appeals court rejected the teacher's free speech, establishment clause and equal protection clause challenges. The Buffalo News last week reported on the decision.

Justice Department Sues Under RLUIPA Challenging Mosque Zoning Denial

Yesterday the Justice Department filed a civil lawsuit under the Religious Land Use and Institutionalized Persons Act against Bernards Township, New Jersey over the town's refusal to grant zoning approval for construction of a mosque. (DOJ press release). The complaint (full text) in United States v. Township of Bernards, New Jersey, (D NJ, filed 11/22/2016), contends that:

The mosque proposal met with vociferous public opposition. Flyers, social media, and websites denounced the mosque and were filled with anti-Muslim bigotry and references to terrorism and the 9/11 attacks....

The Planning Board ultimately held thirty-nine public hearings over three and a half years. The Planning Board had never held such a large number of hearings for any previous site plan application.... Since at least 1994, this was the first time that the Planning Board had denied a site plan application for a house of worship.

Suit Challenges Kentucky's Denial of "IM GOD" License Plate

The ACLU and Freedom From Religion Foundation yesterday announced the filing of a lawsuit in Kentucky federal district court challenging the state's refusal to approve an atheist's request for a personalized license plate carrying the letters "IM GOD".  The state said the proposed plate is "offensive to good taste and decency." The complaint (full text) in Hart v. Thomas, (ED KY, filed 11/22/2016), asserts both facial and as-applied challenges contending that the denial of the license-plate application amounts to content and viewpoint-based discrimination. The suit also challenges the Kentucky statute that allows denial of personalized plates that promote political or religious beliefs. WDRB reports on the case.

Kyrgyzstan Criminalizes Religious Marriage of Minors

According to Interfax, in Kyrgyzstan last week, President Almazbek Atambayev signed amendments to the country's Family and Criminal Codes banning religious consecration of marriages involving minors.  The new law makes it a criminal offense to enter into marriage with a minor and extends criminal punishment of 3 to 5 years in prison to both clergy and parents who participate in the religious marriage ceremony.  In recent years, increasing numbers of young girls in Kyrgyzstan have been married off in Muslim religious ceremonies, even though the marriage cannot be legally registered.

Bill Introduced In Congress To Bar Muslim Registry

In a press release yesterday, Congresswoman Suzan DelBene who represents the state of Washington in the U.S. House of Representatives introduced HR6382 the No Religious Registry Act. Introduced in response to statements suggesting that President-Elect Donald Trump favors a registry of Muslims in the U.S., the bill would bar the collection of information and the creation of a registry for classifying U.S. nationals, U.S. visa applicants or aliens lawfully present in the U.S. on the basis of religious affiliation,

Israel's High Court of Justice Enjoins Appointment of Military Chief Rabbi

Israel's High Court of Justice today issued an injunction temporarily preventing the Israel Defense Forces from appointing Col. Eyal Karim as the IDF's chief rabbi. As reported by Times of Israel, Karim has made very controversial statements in the past regarding rape of enemy women during wartime.  He also has written that women should not serve in the IDF, women should not sing at army events, and if they do religious soldiers should be permitted to leave. Apparently IDF Chief of Staff Lt. Gen. Gadi Eisenkot did not know of Karim's comments when he nominated him for the military's chief rabbi.  Today's temporary injunction is in response to a petition filed with the Court by the left-wing Meretz Party.  The Court has told Karim to file an affidavit on his past and present views on wartime rape and the role of women in the military. Right-wing Knesset members are encouraging Karim to stick with his views, attacking the right of a court to police the religious views of a rabbi.

Pope Francis Extends Priests' Authority To Forgive Abortion

As reported by Vatican Radio, Pope Francis yesterday issued an apostolic letter, Misericordia et Misera  (“Mercy and Misery”), which extends a number of initiatives begun in the just-ended Jubilee Year of Mercy.  One portion of the Pope's letter may color legal and political debate in the United States:

... [L]est any obstacle arise between the request for reconciliation and God’s forgiveness, I henceforth grant to all priests, in virtue of their ministry, the faculty to absolve those who have committed the sin of procured abortion. The provision I had made in this regard, limited to the duration of the Extraordinary Holy Year, is hereby extended, notwithstanding anything to the contrary. I wish to restate as firmly as I can that abortion is a grave sin, since it puts an end to an innocent life. In the same way, however, I can and must state that there is no sin that God’s mercy cannot reach and wipe away when it finds a repentant heart seeking to be reconciled with the Father. May every priest, therefore, be a guide, support and comfort to penitents on this journey of special reconciliation.

The Washington Post reports that in a press conference a Holy See official, Monsignor Rino Fisichella, said that the pronouncement covers doctors, nurses and others involved in an abortion, as well as the woman obtaining the procedure.

In a separate matter, the Pope's apostolic letter also validated continued hearing of confessions by priests of the controversial right-wing Society of St Pius X. (See prior related posting.)

Recent Articles of Interest

From SSRN:

• Amos A. Israel-Vleeschhouwer, The Mandate System as a Messianic Alternative in the Ultra-Religious Jurisprudence of Rabbi Dr. Isaac Breuer, (49(3) Israel Law Review 339-363 (2016)).
• Scott Altman, Taking Precautions When Shaping a Child's Values, (USC Law Legal Studies Paper No. 16-34 (2016)).
• Kathryn Chan, Corporate and Trust Law Dimensions of the Trinity Western University Law School Debate, (November 14, 2016).
• Mickell Branham, Listening to Victims, (in Death Penalty and the Victims, United Nations Human Rights Office of the High Commissioner, September 1, 2016).
• Brice Dickson & Conor McCormick,The Right to Education for Humanity, (67(4) Northern Ireland Legal Quarterly 409-432).
• Joe Pratt, The False Materialism of America's Death Penalty, (November 16, 2016).

From SmartCILP:

• Garrett Epps, Public Funding and the Road to Damascus: The Legacy of Employment Division v. Smith, 94 Oregon Law Review 659-671 (2016).
• Marion Goldman, Dave Frohnmayer and the Apocalypse that Evaporated, 94 Oregon Law Review 633-657 (2016).
• Symposium. My Religion, My Rules: Examining the Impact of RFRA Laws on Individual Rights. Foreword by Bryan A. Hum; articles by Shai Stern, Scott D. Pollock and Bill Piatt. 79 Albany Law Review 621-704 (2015/2016).
• Symposium on the Meaning of Religious Liberty in the Anglo-American Legal Tradition. Articles by Matthew J. Franck, Andy G. Olree, Jonathan Den Hartog, Scott A. Merriman and Jeffrey B. Hammond. 7 Faulkner Law Review 1-128 (2015).
• Imani Jaafar, Practical Islamic Estate Planning: A Short Primer, 42 Mitchell Hamline Law Review 925-939 (2016).
• Charles J. Russo, Religious Freedom in Faith-Based Educational Institutions in the Wake of Obergefell v. Hodges: Believers Beware, 2016 BYU Education & Law Journal 263-308.
• Colloquium: Religious Liberty after Hobby Lobby: A Panel of the 2014 Federalist Society National Lawyers Convention. Introduction by William L. Saunders; Hon. Diarmuid F. O'Scannlain, moderator; Kim Colby, William P. Marshall and Robin Fretwell Wilson, panelists. 48 Connecticut Law Review 969-1011 (2016) [Video of Panel Discussion].

Group Launches Annual "Friend or Foe" Christmas Campaign

Liberty Counsel announced last week that it has launched its fourteenth annual Friend or Foe Christmas Campaign, saying in part:

Liberty Counsel is actively monitoring cases across the country where there is intimidation by officials and groups to remove the celebration of Christmas in public and private sectors. These threats include atheist groups seeking to ban nativity scenes from public property, senior living centers that prohibit residents from singing Christmas carols, public schools that ban students from wearing the Christmas colors of red and green, school officials who censor religious words from Christmas carols and retailers which profit from Christmas while pretending it does not exist.

Its announcement links to a memorandum on legal issues and its annual "Naughty & Nice" list of retailers focusing on whether or not companies use the term "Christmas" in their advertising.

Recent Prisoner Free Exercise Cases

In Sanchez v. Mitchell, 2016 U.S. Dist. LEXIS 157853 (D MA, Nov. 15, 2016), a Massachusetts federal district court dismissed an inmate's complaint that his free exercise rights were infringed when he was removed from the kosher diet list because he had received 3 incident reports within 30 days.

In Demara v. Barker, 2016 U.S. Dist. LEXIS 158191 (ED CA, Nov. 15, 2016), a California federal magistrate judge dismissed with leave to amend a Native American inmate's complaint that authorities lost a religious package sent to him containing an engraved flute and ceremonial beads and instruments. This prevented him from attending flute ceremonies which caused him to be ostracized by his tribe.

In Kindred v. King, 2016 U.S. Dist. LEXIS 158203 (ED CA, Nov. 15, 2016), a California federal magistrate judge, while dismissing a number of claims by a Native American civil detainee of interference with his religious practices, permitted plaintiff to move ahead with a claim that two of the defendants denied him spiritual or sacred items that do not implicate safety and security concerns.

In Sirleaf v. Wall, 2016 U.S. Dist. LEXIS 158256 (ED VA, Nov. 15, 2016), a Virginia federal district court dismissed for failure to exhaust administrative remedies a complaint by an inmate who was "a member of the Common Wealth of Israel" that he was denied Ecumenical Pilgrim Feast, worship items and the right to celebrate the birthday and coronations of Emperor Haile Selaisse.

In Venkataram v. Bureau of Prisons, 2016 U.S. Dist. LEXIS 158767 (SD FL, Nov. 15, 2016), a Florida federal magistrate judge recommended dismissing with leave to amend a Hindu inmate's complaint that he was denied vegetarian meals that conform to his religious beliefs.

In Amaker v. Fischer, 2016 U.S. Dist. LEXIS 158785 (WD NY, Nov. 16, 2016), a New York federal magistrate judge allowed a Nation of Islam inmate to file an amended complaint alleging that a corrections officer prevented him from possessing his religious materials.

In Hearns v. Gonzales, 2016 U.S. Dist. LEXIS 159016 (ED CA, Nov. 15, 2016), a California federal magistrate judge refused to allow an inmate to amend his complaint to add a claim that a corrections officer poured bleach over his prayer rug and then confiscated it in retaliation for his filing this lawsuit.

In Feiger v. Smith, 2016 U.S. Dist. LEXIS 159731 (ED CA, Nov. 16, 2016), a California federal magistrate judge dismissed a Jewish inmate's claims under state law (Unruh Civil Rights Act and Bane Act) regarding problems with the kosher diet program and religious services, but rejected defendants' immunity defense.

In Olodumare v. U.S. District Court, 2016 U.S. Dist. LEXIS 160369 (SD FL, Nov. 17, 2016), a Florida federal magistrate judge dismissed as "a hodgepodge of unsupported assertions written in incomprehensible legalistic gibberish" a pleading captioned "All Writs of Habeas Corpus Declared by God."

Mother Challenges State's Law On Emancipation of Minors

In a suit filed earlier this week in a Minnesota federal district court, the mother of a 17-year old challenges the Minnesota statute that allows minors who are living separate and apart from their parents or legal guardians and who are managing their own financial affairs to alone consent to their own personal medical, dental, mental and other health services.  The complaint (full text) in Calgaro v. St. Louis County, (D MN, filed 11/16/2016), challenges the furnishing of medical treatment to the 17-year old-- including furnishing prescription drugs and clinical treatment for gender transition from male to female. The complaint also challenges a determination by the minor's school district of emancipation so that the mother is not entitled to the teen's school records or to participate in the minor's educational decisions.  Plaintiff claims that, because there is no procedure for the parent to challenge the determination of emancipation that was made without court order, this deprives her without due process of her parental rights to make decisions on the care of her child. Thomas More Society announced the filing of the lawsuit. NBC News reports on the litigation.

Missouri Appeals Court: Frozen Pre-Embryos Are Marital Property, Not Children

In McQueen v. Gadberry, (MO App., Nov. 15, 2016), a Missouri state appellate court in a 2-1 decision held that frozen pre-embryos created from the husband's sperm and the wife's eggs for the purpose of in vitro fertilization are to be treated as marital property in a divorce proceeding, rather than being treated as children. The appeals court upheld the trial court's award of the pre-embryos to the husband and wife jointly with the stipulation that they could be used only with the consent of both parties.  The wife had argued that because Mo. Rev. Statutes Sec. 1.205 declares that "the life of each human being begins at conception," the court should have treated the pre-embryos as children and awarded her custody so that she could have them implanted to become pregnant. The majority held, however, that applying this declaration to pre-embryos would infringe the father's right to privacy and his right not to procreate.  The majority observed:

We balance the interests of the parties in this case because the frozen pre-embryos are still in vitro and have not been transferred to or implanted in McQueen’s uterus, and therefore, the disposition of the frozen pre-embryos does not implicate McQueen’s right to bodily integrity in the area of reproductive choice under Roe which would outweigh any of Gadberry’s interests in avoiding parenthood.

Judge Dowd, dissenting, argued that the embryos should have been treated as children and the trial court should have applied the statutory provisions on child custody in awarding them. He argued that the father already made a reproductive decision in creating the embryos and so has no further reproductive decision to protect. AP reports on the decision.

NY Town Settles Construction Dispute With Sikh Temple

According to NBC News, on Wednesday a settlement agreement between the Town of Oyster Bay, New York and the Guru Gobind Singh Sikh Center was filed with a federal district court. The Sikh Temple had sued under RFRA claiming that the town's stop work and environmental review orders were issued to appease residents who are hostile to the temple and its worship. (See prior posting.) Under the settlement the temple agreed to make certain construction changes and the town board agreed that it would no longer be authorized to serve as the oversight committee for the site plan approval process.

Spanish Judge Clears Artist Who Used Stolen Consecrated Hosts

In Madrid, Spain, a trial court judge this week dismissed a suit which charges artist Abel Azcona with offending religious sentiments in violation of Spanish Penal Code Sec. 525.  The section prohibits publicly disparaging the dogmas, beliefs, rites or ceremonies of members of a religious confession. As reported by CNA:

Azcona stole more than 240 consecrated hosts from Masses celebrated in the cities of Madrid and Pamplona. He later took nude photos of himself arranging them on a floor to spell the word ‘pederasty.’ In November 2015, he displayed the photos as part of an art display in a city-owned exhibition hall available for public use. When that exposition was over, the would-be artist sold the consecrated hosts for more than $268,000....

The judge claimed Azcona made use of the hosts "discreetly, without his conduct being able to be characterized as disrespectful, offensive or irreverent." The exhibition of the artwork "does not constitute derision of the beliefs, rites or ceremonies of the Catholic Church nor is it an affront to those who profess or practice said beliefs," according to the judge.

 The Spanish Association of Christian Lawyers which filed the suit (see prior posting) says it will file an appeal.

Suit Challenging Indiana Anti-Discrimination Laws Moves Ahead

As reported by the Indianapolis Star, an Indiana state trial court judge is allowing a lawsuit filed by three conservative advocacy organizations to move ahead.  The suit challenges laws barring discrimination on the basis of sexual orientation.  The organizations assert that the laws infringe on their free exercise rights. The suit challenges the ordinances of four Indiana cities as well as the so-called "fix" to Indiana's Religious Freedom Restoration Act that prevents using RFRA to discriminate. The order (full text) in Indiana Family Institute, Inc. v. City of Carmel, Indiana, (IN Super. Ct., Nov. 16, 2016), however, requires plaintiffs to file an amended complaint adding the state of Indiana as a party. In a statement (press release), plaintiffs' counsel said:

Plaintiffs currently stand stripped of the heightened legal protection provided under RFRA and must host speakers and hire employees who advocate for same-sex marriage contrary to their religious beliefs. We believe in the constitutionally protected free-exercise of religion that affects people who advocate for traditional marriage, just as it protects all other religious beliefs.