Wedding Videographers Sue To Refuse Same-Sex Couples

The owners of a St. Cloud, Minnesota film and media production company filed suit yesterday in federal district court claiming that the Minnesota Human Rights Act violates their rights under the 1st and 14th Amendments by requiring them "to produce videos promoting a conception of marriage that directly contradicts their religious beliefs if they produce videos promoting marriages between one man and one woman."  The complaint (full text) in Telescope Media Group v. Lindsey, (D MN, filed 12/6/2016), alleges that Carl Larsen and Angel Larsen "desire to counteract the current powerful cultural narrative undermining the historic, biblically-orthodox definition of marriage as between one man and one woman by magnifying God’s beautiful design and purpose for marriage through their creative storytelling and promotional talents." Plaintiffs argue:

The First Amendment prevents the government from compelling people to create, express, support, or promote a message not of their own choosing or to speak when they would rather remain silent.

KSTP-TV News reports on the lawsuit.

Catholic Principal's Suit Dismissed On Ministerial Exception Ground

In Ginalski v. Diocese of Gary, 2016 U.S. Dist. LEXIS 168014 (ND IN, Dec. 5, 2016), an Indiana federal magistrate judge dismissed employment discrimination claims brought by a former principal of a Catholic high school whose contract was not renewed. The principal contended that she was fired because of her sex, age and disability.  The court held that the ministerial exception requires dismissal of her claims, saying:

requiring Andrean High School to reinstate Ginalski as principal or by punishing it for not renewing her contract would violate Andrean High School's freedom under the Religion Clauses to select its own ministers.

Probation Requirement To Stay Away From Church Is Too Broad

In People v. Saltekoff, (CA App., Nov. 30, 2016), a California appellate court reversed and remanded to the trial court a condition of probation imposed on Jonathan Saltekoff who pleaded guilty to attempted kidnapping of a 9-month old infant. The trial court had required that Saltekoff stay at least 100 yards away from Bethel Church, the church to which Saltekoff's parents belonged.  It was also the church in which the kidnapping victim's family was very active, and they did not want to have to worry about Saltekoff showing up. The appeals court said:

Here, we assume the challenged condition burdens defendant’s exercise of religion, because it bars him completely from going to his family’s church. This bar is in place regardless of whether the victim is present or not. The record supports a restriction on defendant’s occupying the same space as the victim at any given time, but it likely does not support banning defendant from his family’s church absent the victim’s presence there. Of course, the church itself may choose to place limits and restrictions on its attendees. But government restrictions on defendant’s free exercise of his religion must be narrowly tailored to support a compelling state interest.

Merkel Calls For Burqa Ban In Germany

The Los Angeles Times reports that yesterday German Chancellor Angela Merkel called for a ban in Germany on the burqa and niqab that fully cover the face of Muslim women who wear them.  In a policy speech to her party's congress, she said, "Here, we show our faces, so full veiling is not appropriate." She called for a ban to be enacted wherever it is legally possible, such as in courtrooms, public schools and universities, and at traffic stops and police checks. Focusing on the need for acceptance of German cultural norms, Merkel said:

Our law takes precedence over honor codes, tribal or family rules and over sharia law. That has to be spelled out clearly.

Britain Releases Report On Integration of Ethnic Communities

Britain's Department for Communities and Local Government yesterday released a report (full text) (Executive Summary) by Dame Louise Casey on integration and opportunity in isolated and deprived communities. It examines immigration and settlement patterns. As reported by BBC News, the report gives attention to the rapid increase in Britain's Muslim population which stands at 2.8 million-- a 72% increase from 2001 to 2011.  In its section on religion, the report says in part:

We remain an officially Christian country with our Head of State, Her Majesty the Queen, also Supreme Governor of the established Church in England, while at the 2011 Census, 59% of us described ourselves as Christian. But that figure had fallen significantly from 72% a decade earlier. And the Church of England has seen a steady decline in church attendance over the last half century, with the proportion of the population attending Sunday services now only one third of that in the 1960s.

At the same time there has been a shift away from mainstream Christian denominations and a growth in evangelical and Pentecostal churches, largely reflecting changes in ethnic diversity.

There has also been an increase in the variety of faiths being practiced. Fifty years ago, Judaism – at less than 1% of the population – was the largest non-Christian faith in the UK. Now it is the fourth largest non-Christian faith with 269,000 people identifying as Jewish in the 2011 Census behind Islam (2.8 million people), Hinduism (833,000), and Sikhism (432,000).

Congress Passes State Department Authorization Act Including Various Religious Liberty Provisions

Yesterday evening the U.S. House of Representatives passed S. 1635, the Department of State Operations Authorization and Embassy Security Act, Fiscal Year 2016 (full text). The bill, which had been passed by the Senate in April, now goes to the President for signature. The 160-page bill includes these provisions relating to religious liberty and religious discrimination:

• Section 105 calling for a report assessing the U.S.-China Dialogue, including among many other items an assessment the treatment of political dissidents, media representatives, and ethnic and religious minorities;
  
• Section 106 calling for a report which "(1) describes in detail all known widespread or systematic civil or political rights violations, including violations that may constitute crimes against humanity against ethnic, racial, or religious minorities in Burma, including the Rohingya people; and (2) provides recommendations for holding perpetrators of the violations described in paragraph (1) accountable for their actions."
  
• Section 107 appropriating $500,000 "to be used in support of efforts by American and European Jewish and other civil society organizations, focusing on youth, to combat anti-Semitism and other forms of religious, ethnic, or racial intolerance in Europe."
  
• Section 122 which expresses the sense of Congress opposing anti-Israel and anti-Semitic incitement in the Palestinian Authority.
  
• Section 131 authorizing an Interagency Atrocities Prevention Board.
  
• Section 133 authorizing a bilateral joint action plan with the European Union to combat prejudice and discrimination.
  
• Section 141 sense of Congress calling for additional sanctions against North Korea including "specific designations relating to human rights abuses."
  
• Section 215 barring racial, ethnic or religious discrimination in assignments of foreign service personnel to work in particular geographic areas.
  
• Section 223: requiring an international religious freedom training program for Foreign Service Officers be developed and implemented.

Questions On Abortion and Gay Marriage Violated Rights of Constable Candidate

In Lloyd v. Birkman, (WD TX, Dec. 2, 2016), a Texas federal district court held that members of the Williamson County (TX) Commissioners' Court violated the equal protection rights of plaintiff when, in an interview for appointment as interim County Constable, they asked him his views on same-sex marriage, abortion and religious affiliation.  The Commissioners had argued that the purpose of their questions was to determine whether the appointee was likely to be electable for a full term to the position in the next popular election. KXAN News reports on the decision.

Azerbaijan and Jewish Groups Will Hold (Competing?) Hanukkah Party At Trump's Hotel

For a number of years, the White House has hosted an annual Hanukkah party.  Yesterday's Jerusalem Post reports that this year there will apparently be competition to President Obama's scheduled Dec. 14 event.  The nation of Azerbaijan, which has developed increasing ties with Israel, has booked space for Dec. 14 at the Trump International Hotel in Washington, D.C., not far from the White House for a Hanukkah Party that will be co-hosted by the Conference of Presidents of Major Jewish Organizations. Invitations for Azerbaijan's party say it will celebrate freedom and diversity. It is not clear from press reports whether the times of the two Hanukkah parties overlap. The Conference of Presidents is made up of over 50 Jewish organizations and represents the organized Jewish community to the Executive Branch.

Victory For Sioux: Army Says Dakota Pipeline Must Find Alternative Route

In a major victory for cultural and religious rights of the  Sioux Tribe, the U.S. Army announced yesterday that will not approve an easement that would allow the proposed Dakota Access Pipeline to cross under Lake Oahe in North Dakota. The pipeline, whose original route would run only a half mile from the Standing Rock Sioux reservation, impinged on sacred tribal burial and historical sites and also created oil spill concerns by the tribe.  Alternative sites will now need to be explored. The Minneapolis Star-Tribune reports on the Army's decision as well as on the background of the dispute. In September, a federal district court had refused to enjoin construction of the pipeline. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Bruce Ledewitz, The Role of Religiously Affiliated Law Schools in the Renewal of American Democracy, (University of Massachusetts Law Review, Forthcoming).
• Mario Ricca, A Modest Proposal: An Overgrown Constitutional Path to Cultural/Religious Pluralism in Italy, (CALUMET – Intercultural Law and Humanities Review, p. 1-46, 11.9.2016).
• Aziz Z. Huq, The Uses of Religious Identity, Practice, and Dogma in 'Soft' and 'Hard' Counterterrorism, (Forthcoming in Security and Human Rights, (Liora Lazarus & Benjamin Goold, eds. Hart Pub. 2017)).
• Jeffrey A. Redding, Formal Marriage, (60 St. Louis U. L.J. 671 (2016)).
• Raphael Cohen-Almagor, Discrimination Against Jewish Women in Halacha (Jewish Law) and in Israel, (British Journal of Middle Eastern Studies, December 2016).
• Jenni Millbank, Reflecting the ‘Human Nature’ of IVF Embryos: Disappearing Women in Ethics, Law, and Fertility Practice, (J Law Biosci (2016)).
• Nqobizwe Mvelo Ngema, Polygamy Versus Equality Rights: Is Polyandry a Solution?, (OIDA International Journal of Sustainable Development, Vol. 09, No. 07, pp. 11-14, 2016).
• Mark A. Drumbl, The Kapo on Film: Tragic Perpetrators and Imperfect Victims, (Washington & Lee Legal Studies Paper No. 2016-13 (2016)).
• Adam Parachin, Charity, Politics and Neutrality, (The Charity Law & Practice Review, Volume 18, 2015).

Recent Prisoner Free Exercise Cases

In Mikell v. Sibanda, 2016 U.S. Dist. LEXIS 163345 (WD PA, Nov. 28, 2016), a Pennsylvania federal magistrate judge dismissed a Muslim inmate's complaint that he did not receive Ramadan meals in 2012 even though he was on the Ramadan list.

In Bizzell v. King County Department of Adult & Juvenile Detention, 2016 U.S. Dist. LEXIS 163639 (WD WA, Nov. 28, 2016), a Washington federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 163725, Oct. 24, 2016) and dismissed without prejudice for failing to exhaust administrative remedies a Muslim inmate's complaint that his request to attend Jum'ah services was denied, as was his request for a kufi and his request to be added to the Ramadan meal list. However the federal magistrate indicated that had plaintiff exhausted his remedies the court would have found the denials of Ramadan meals under an all or none policy and denial of a kufi to violate RLUIPA.

In Hamrick v. Baird, 2016 U.S. Dist. LEXIS 164426 (SD IL, Nov. 29, 2016), an Illinois federal district court allowed an inmate to proceed with his claims that his free exercise, RFRA and equal protection rights were infringed by a policy that barred Muslim inmates from participating in group prayer or group religious activity.

In Salik v. Illinois Department of Corrections, 2016 U.S. Dist. LEXIS 166242 (SD IL, Dec. 1, 2016), an Illinois federal district court permitted a Muslim inmate to move ahead against some of the defendants on his complaint that he was removed from the Ramadan meal list for refusing to attend chapel services; and that he was initially denied a halal diet and then was placed on a diet more restrictive that his religion required.

In Ferguson-El v. Horton, 2016 U.S. Dist. LEXIS 166244 (WD VA, Nov. 30, 2016), a Virginia federal district court dismissed an inmate's complaint that he was threatened with segregation for teaching Sovereign Citizen ideology as part of a meeting for Moorish Science Temple of America adherents.

In Bennett v. Burt, 2016 U.S. Dist. LEXIS 166452 (WD MI, Dec. 2, 2016), a Michigan federal district court dismissed an inmate's complaint that he lost 4 days work until he was transferred from a work assignment that would have required him to work on Saturday (his Sabbath) to another assignment.

In Winnett v. Bray, 2016 U.S. Dist. LEXIS 166560 (ED AR, Dec. 2, 2106), an Arkansas federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 166666, Nov. 18, 2016) and allowed an inmate to move ahead on his complaint that he was denied Sabbath meals prepared in compliance with the requirements of his religion.

In Arendas v. Mesa County, 2016 U.S. Dist. LEXIS 166732 (D CO, Nov. 29, 2016), a Colorado federal magistrate judge recommended dismissing an action by an inmate seeking an injunction and $1 million in damages who contended the requirement that he wear an identification wrist band violates his Catholic religious belief that he may not wear a non-medically related unremovable item on his body.

In Etterson v. Newcome, 2016 U.S. Dist. LEXIS 166986 (ED VA, Dec. 1, 2016), a Virginia federal district court dismissed without prejudice for failure to exhaust administrative remedies a Muslim inmate's complaint that he was removed from the list for Ramadan meals after he was observed eating during the fast.

Britain's Equality Commission Publishes New Study On Religion In the Workplace

On Friday, Britain's Equality and Human Rights Commission announced the publication of a lengthy new study titled Religion or Belief: Is the Law Working?. The report focuses on four questions: Is the legal approach to defining a religion or a belief effective? Are the Equality Act exceptions allowing religion or belief requirements to influence employment decisions sufficient and appropriate? Does the law sufficiently protect employees wishing to manifest a religion or
belief at work? Does the law sufficiently protect service users and service providers in relation to religion or belief? The Commission also published an updated Guide for employers to religion and belief in the workplace.  Law & Religion UK has more on the Commission's conclusions.

Satanic Temple Will Challenge Texas' New Fetal Remains Rules

As reported yesterday by Jezebel, the Satanic Temple says that it plans to challenge Texas' new rules requiring burial or cremation of fetal remains as a violation of its members' rights under the Texas Religious Freedom Restoration Act.  A spokesman for Satanic Temple said:

Texas health officials are baldly imposing the view that the fetal tissue is elevated to personhood—a religious opinion that conflicts with our own. If Texas is going to treat the disposal of fetal tissue differently from the disposal of any other biological material, in contradiction to our own religious beliefs, they need to present a compelling state interest for doing so. Of course, there is no such state interest, and it’s perfectly clear the demand for fetal tissue burial is a punitive measure imposed by sadistic theocrats. It’s clear these officials deem harassment an acceptable form of pushing their misguided religious agendas.

The organization plans to file for an injunction as soon as the state attempts to apply the new rules to one of its members. [Thanks to Scott Mange for the lead.]

Supreme Court Grants Cert. In 3 ERISA Church Plan Cases

Today the U.S. Supreme Court granted review in three cases all posing the question of how to interpret the "church plan" exemption in the Employee Retirement Income and Security Act (ERISA). (Order List, Dec. 2, 2016). The cases are Advocate Health Care v. Stapleton, (Docket No. 16-74) (prior posting on 7th Circuit's decision), St. Peter's Health Care v. Kaplan, (Docket No. 16-86) (prior posting on 3rd Circuit's decision), and Dignity Health v. Rollins, (Docket No. 16-258) (prior posting on 9th Circuit's decision).

At issue are the following provisions in 29 USC 1003(b)(2):

(33)(A) The term “church plan” means a plan established and maintained . . . by a church or by a convention or association of churches....

(C) For purposes of this paragraph— (i) A plan established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches includes a plan maintained by an organization ... [which] is controlled by or associated with a church or a convention or association of churches.

The religiously affiliated health care systems in these cases, rather than the churches they are affiliated with, created the retirement plans for their employees.  In 1983 in a General Counsel Memorandum, the Internal Revenue Service took the position that it is sufficient if the retirement plan was is maintained by a religiously affiliated organization, even if it was initially created by that organization and not the "church" it was affiliated with.  In a series of cases filed around the country, plan beneficiaries have attacked that conclusion and in the cases in which the Court today granted certiorari the plan beneficiaries prevailed.  If the Supreme Court affirms these Circuit Court decisions, retirement plans of various religiously-affiliated organizations will be undefunded in total by billions of dollars.

SCOTUSblog has case pages for each of the cases (case page for Advocate Health Care case with links to case pages for other two cases).

European Court Finds Lack of Fair Hearing For Church Over Expropriation

In Lupeni Greek Catholic Parish v. Romania, (ECHR, Nov. 29, 2016), the Grand Chamber of the European Court of Human Rights held that a Greek Catholic church had been denied a fair hearing in Romania on its claim for compensation for the expropriation by Romania's former Communist government of the church's property followed by its transfer to the Greek Orthodox Church. The court said in part:

The protection of minorities is almost always unpopular and the protection of religious minorities is even more so. Europe has a long history of religious majorities disregarding the rights of religious minorities. This is an area where present-day democratic standards oblige a majority to show restraint, for the sake of respecting minorities. Unfortunately this case shows that States are often reluctant to undo the injustice committed to religious minorities when the interest of the religious majority is at stake.

Law & Religion UK has an extensive discussion of the case.

White House Ready For Holidays; National Christmas Tree Lit

NBC reports that President Obama, Michelle Obama and their daughter Sasha last night lit the National Christmas Tree on the Ellipse. The White House website now includes a 2016 Holidays at the White House page, carrying stories on decorations and activities at the White House for the holiday season.

UPDATE: Here is the full text of the President's remarks at the lighting of the National Christmas Tree.

Brazil's Supreme Federal Court Invalidates Sentences of Abortion Clinic Workers

On Tuesday, a 4-judge panel of the First Chamber of Brazil's Supreme Federal Court overturned the jail sentences of 5 people who were working at an underground abortion clinic near Rio de Janeiro.  Telesur reports:

Judge Luis Roberto Barroso argued in his decision that given that women carry the full burden of reproduction, “there will be full equality only if she is recognized as having the right to decide.”

He argued that women’s health and safety should be ensured without interference, saying, “Having a child determined by the Criminal Code constitutes a serious violation of the physical and psychological integrity of a woman.”

Barroso also noted that criminalization of abortion disproportionately affects poor and marginalized women who face even more restricted access to private services.

Here is the full text in Portuguese of Judge Barroso's opinion. RNS reports that the decision, which is seen as setting precedent "legalizing abortion during the first trimester has caused uproar among politicians with strong ties to Roman Catholic and evangelical faiths, who have gained ground in the current government."

"In God We Trust" On Currency Does Not Substantially Burden Atheists

In New Doe Child #1 v. Congress of the United States, (ND OH, Nov. 30, 2016), an Ohio federal district court rejected several challenges to the United States' use of the motto "In God We Trust" on currency. Various plaintiffs either do not believe in God, or find the use of God's name on currency to be sinful.  The court rejected plaintiffs' 1st Amendment and RFRA free exercise claims as well as their compelled speech and equal protection arguments. The court said in part:

Plaintiffs cannot demonstrate that the use of the motto on currency substantially burdens their religious exercise. Credit cards and checks allow Plaintiffs to conduct the bulk of their purchases with currency not inscribed with the motto. And for cash-only transactions, such as a garage sale or a coin-operated laundromat, the use of the motto on currency does not substantially burden Plaintiffs’ free exercise.... Furthermore, Plaintiffs’ other concerns, that they may be subject to peer pressure or ridicule, or that their children may question their beliefs, are unlike the choice between a “basic benefit and a core belief” described in the Supreme Court’s case law....

(See prior related posting.)

Liability of B&B Upheld For Refusing To Host Same-Sex Ceremony

A 3-member panel of the Illinois Human Rights Commission has adopted a hearing examiner's recommendations (see prior posting) and ruled against a bed-and-breakfast that refused to host a same-sex civil union ceremony.  In Wathen v. Walder Vocuflo, Inc., (IL HRC, Nov. 18, 2016), the commission accepted the recommended damages of $30,000 for emotional distress as well as $51,218 in attorneys' fees and costs. In a press release announcing the decision, the Illinois ACLU said in part:

The Commission’s decision once again sends a clear message that denying couples the use of a public wedding venue in Illinois because they are gay or lesbian is simply not permitted. Business owners cannot pick-and-choose to follow laws simply because they personally disagree with same-sex couples’ decision to marry.

According to the Chicago Tribune, attorneys for the bed-and-breakfast say they will seek review from the full Commission and, if necessary, by the Illinois Court of Appeals.

Australian Judge Says Muslim Plaintiff Cannot Testify Without Removing Veil

Australia's Daily Telegraph reported yesterday that a trial court judge in the Australian state of New South Wales has ruled that a Muslim woman who is plaintiff in a civil case against the state and federal governments may not take the stand in her own trial without removing her veil which conceals her face. Moutia Elzahed, who is one of two women married to a convicted Islamic extremist, is suing over alleged police brutality during a 2014 counter-terrorism raid of her home.  Elzhed says that for religious reasons she cannot show her face to any man outside her family.  She rejected alternatives of testifying in closed court or via a closed circuit television link since either would show her face to the male lawyers involved in the case.  Elzhed also refused to stand when Judge Audrey Balla entered the courtroom.

UPDATE: Here is the full text of the judge's decision.