Attorney General Lynch Speaks To Interfaith Event About Hate Crimes

Attorney General Loretta Lynch yesterday spoke on the Justice Department’s Commitment to Combating Hate Crimes (full text of remarks) at an interfaith event held at the All Dulles Area Muslim Society (ADAMS) Center in Reston, Virginia.  She said in part:

[A]ll of us have seen the flurry of recent news reports about alleged hate crimes and harassment – from hijabs yanked off of women’s heads; to swastikas sprayed on the sides of synagogues; to slurs and epithets hurled in classrooms....

These incidents – and these statistics – should be of the deepest concern to every American.  Because hate crimes don’t just target individuals.  They tear at the fabric of our communities, and they also stain our dearest ideals and our nation’s very soul.  There is a pernicious thread that connects the act of violence against a woman wearing a hijab to the assault on a transgender man to the tragic deaths of nine innocent African Americans during a Bible study at Mother Emanuel AME in Charleston, South Carolina.... Regardless of our faith, we believe in our common humanity.... That is why the Department of Justice – and the entire Obama Administration – regards hate crimes with the utmost seriousness, whether they target individuals because of their race, their religion, their gender or their sexual orientation.  And that is why we have worked tirelessly over the last several years to bring those who perpetrate these heinous deeds to justice.

U.S. and Britain Explore Definition of Anti-Semitism

On Dec. 1 the U.S. Senate passed by unanimous consent S.10, the Anti-Semitism Awareness Act of 2016. (ADL press release with background information.) In the convoluted language of much federal legislation, the bill would have instructed the Department of Education to use the definition of Anti-Semitism developed by the State Department's Special Envoy to Monitor and Combat Anti-Semitism-- including examples in an accompanying Fact Sheet-- in enforcing Title VI of the 1964 Civil Rights Act. Title VI prohibits discrimination in programs receiving federal financial assistance.

The basic definition of Anti-Semitism incorporated by the bill is:

Anti-Semitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.

Beyond this, though, the accompanying Fact Sheet includes in the definition of Anti-Semitism criticism of Israel which demonizes Israel, applies a double standard not demanded of any other democratic nation, or denies Israel's right to exist.  As reported last week by The Forward, S.10 has died in the House of Representatives as critics raised concerns that the bill could threaten federal funding at universities where speakers criticize Israel without a push back from college administrators.

Meanwhile yesterday Britain's Prime Minister Theresa May announced that Britain will formally adopt the definition of anti-Semitism developed by the International Holocaust Remembrance Alliance-- the same definition as the basic statement incorporated in S.10.  This comes after the House of Commons Home Affairs Committee in October published a report on Antisemitism in the UK, and the Government this month published a Response to Home Affairs Committee Report. The Government's Response discusses at some length the question of whether or when criticism of Israel should be classified as Anti-Semitism.

Massachusetts Modifies Reference To Churches As Public Accommodations; Suit Dismissed

Alliance Defending Freedom announced that today the churches and pastors who are plaintiffs in Horizon Christian Fellowship v. Williamson filed a Notice of Voluntary Dismissal in their lawsuit after the Attorney General's Office made a change in its website and the Massachusetts Commission Against Discrimination made changes to language in a Guidance document on when a church can be considered a place of public accommodation subject to state's ban on discrimination on the basis of gender identity. Originally (see prior posting) the Gender Identity Guidance stated:

Even a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.

The revised Gender Identity Guidance reads:

The law does not apply to a religious organization if subjecting the organization to the law would violate the organization’s First Amendment rights. See Donaldson v. Farrakhan, 436 Mass. 94 (2002). However, a religious organization may be subject to the Commonwealth’s public accommodations law if it engages in or its facilities are used for a “public, secular function.” Id.

Originally a page on the Attorney General's website had made a categorical reference to "houses of worship" as an example of a "place of public accommodation."  That reference has been dropped.  A letter from the chief of the state's Civil Rights Division explained why the changes were made.

Recent Articles of Interest

From SSRN:

• Kathleen Brady, The Disappearance of Religion from Debates About Religious Accommodation, (20 Lewis & Clark L. Rev., Issue No. 4, in Symposium, Law and Religion in an Increasingly Polarized America, Forthcoming).
• Andrew Koppelman, Lupu, Tuttle, and Singling out Religion, (111 Northwestern University Law Review Online 41 (2016)).
• Avishalom Westreich, Changing Motherhood Paradigms: Jewish Law, Civil Law, and Society, (Hastings Women's Law Journal, Vol. 28, No. 1, Forthcoming).
• Mitchell Landrigan, Protests Outside Abortion Clinics Constitutionally Protected Speech?, (Alternative Law Journal 41(1) 2016).

From elsewhere:

• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations, (PLI, 2016 Revision).

Presidential Proclamation Of Human Rights Day and Week

Last Friday, President Obama issued a Presidential Proclamation declaring December 10 as Human Rights Day and the week beginning December 10 as Human Rights Week. The Universal Declaration of Human Rights was adopted by the United Nations General Assembly on December 10, 1948. The Presidential Proclamation reads in part:

Far too many people around the world are still denied their human rights and fundamental freedoms, and we must work to end the discrimination that is too often felt by LGBT individuals, people with disabilities, immigrants, women and girls of all ages, and members of religious, ethnic, and other minorities. And we must strengthen our ongoing efforts to rid the world of violence, oppression, and hatred.

Recent Prisoner Free Exercise Cases

In Pickering v. California Department of Corrections, 2016 U.S. Dist. LEXIS 167867 (ED CA, Dec. 5, 2016), a California federal magistrate judge recommended dismissing an inmate's claims that defendants have hindered the practice of his Astru/Odinic faith. However the court recommended that plaintiff be allowed to proceed with his retaliation claim.

In Malone v. Selby, 2016 U.S. Dist. LEXIS 168764 (SD IL, Dec. 6, 2016), an Illinois federal district court permitted an inmate to move ahead with a claim that a corrections official destroyed or discarded plaintiff's Bible concordance.

In Lane v. Tavares, 2016 U.S. Dist. LEXIS 168965 (MD PA, Dec. 7, 2016), a Pennsylvania federal district court accepted a magistrate's recommendation and allowed a Muslim inmate to move ahead with a claim that the prison doctor intentionally interfered with his attempt to gain safe access to Friday Prayers.

In Alderson v. Kelley, 2016 U.S. Dist. LEXIS 168233 (ED AR, Dec. 6, 2016), and Arkansas federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 169173, Oct. 28, 2016) and dismissed an inmate's complaint that his request to have a beard for religious reasons was previously denied.

In Willison v. Davis, 2016 U.S. Dist. LEXIS 169241 (SD OH, Dec. 7, 2016), an Ohio federal magistrate judge recommended dismissing a suit against the state Religious Services Administrator brought by an inmate who change his religion to Natsarim (Messianic Judaism) and was initially denied kosher meals and participation in the Passover feast.

In Quiero v. Muniz, 2016 U.S. Dist. LEXIS 170733 (MD PA, Dec. 8, 2016), a Pennsylvania federal magistrate judge recommended that an inmate be allowed to proceed with his challenge to a policy that denied him access to bible studies, church services, and chaplains while in the restricted housing unit. UPDATE: The court adopted the magistrate's recommendations at 2017 U.S. Dist. LEXIS 11766, Jan. 27, 2017.

In Young v. Biter, 2016 U.S. Dist. LEXIS 170992 (ED CA, Dec. 9, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's complaint about his ability to practice his religion and denial of a kosher diet.

7th Circuit Hears Oral Arguments Over State Regulation of Bible Colleges

The U.S. 7th Circuit Court of Appeals on Thursday heard oral arguments in Illinois Bible Colleges Association v. Anderson (audio of oral arguments).  In the case, an Illinois federal district court rejected constitutional challenges by a group of Bible Colleges to three Illinois statutes that regulate institutions of higher education in the state, including religiously-affiliated ones. (See prior posting.) [Thanks to James Robideau for the lead.]

Town Sued Over Cross On Christmas Tree

As reported yesterday by Fox 59 News, the ACLU has filed suit on behalf of a resident of Knightstown, Indiana against the city challenging the cross that tops the Christmas tree in the town square. The tree has been displayed for many years. However plaintiff Joseph Tompkins says that the cross is "is the preeminent symbol of Christianity," and this makes the display religious and a violation of the Establishment Clause. Other town residents support the cross and have various ideas for showing their support.

UPDATE: On Dec. 12, the Knightstown Council had the cross atop the Christmas tree removed, saying it could not win the lawsuit filed by the ACLU. Town residents unsuccessfully attempted to block the bucket truck removing the cross. (Fox 59 News).

Briefing Change In SCOTUS Transgender Case May Have Substantive Impact

In October, the U.S. Supreme Court granted certiorari in Gloucester County School Board v. G.G., a high profile case on bathroom choice by transgender students in schools receiving federal funds. (See prior posting.) Today SCOTUSblog reports that the Court, in an action that will have unusual impact has extended the time for filing briefs in the case.  The extension of time means that it is more likely that Justice Scalia's vacancy on the Court will be filled before the case is argued, eliminating the chance for a 4-4 split.  In addition, according to Amy Howe at SCOTUSblog:

[T]he schedule change ... means that the federal government’s position in the case will be determined by the Trump, rather than Obama, administration. Deference to the Obama administration’s interpretation of federal law has been a central feature of G.G.’s argument, and it was the basis for the lower court’s ruling in G.G.’s favor. The Trump administration will not take office in time to file a brief supporting the school board, but it could nonetheless reverse course before G.G. files his brief. Such a change could substantially alter the arguments that G.G. makes and the justices consider. Indeed, if the Trump administration does rescind the existing Department of Education letter or issue its own guidance on the question, the justices could opt to send the case back to the lower court for reconsideration in light of that new guidance.

4th Circuit Hears Employment Discrimination Case

The U.S. 4th Circuit Court of Appeals yesterday heard oral arguments in Abeles v. Metropolitan Washington Airports Authority. (Audio of full oral argument.) In April, a Virginia federal district court rejected plaintiff's claim that she was discriminated against because of her Orthodox Jewish faith when she was suspended for five days after stayed off work on the last two days of Passover. (District court opinion.) Among the issues on appeal are whether plaintiff followed proper procedures in requesting time off, and whether RFRA and the Virginia Religious Freedom Act apply to the case.  Becket Fund has links to documents in the case.

Congress Gives Final Passage To Defense Authorization Act-- Some Sections Impact Religion

Yesterday the Senate gave final approval to S.2943 as amended by Conference Report 114-840, the National Defense Authorization Act for Fiscal Year 2017. (Full text). The 975-page bill, which now goes to the President for his signature, contains the following provisions of interest to those who follow church-state and religious liberty developments:

• Sec. 549 which calls for data collection on hazing notes that victims are often members of protected classes such as race and religion.
• Sec. 585 authorizes award of the distinguished service cross posthumously to Chaplain Joseph Verbis LaFleur for acts of valor while a Japanese prisoner of war during World War II.
• Sec. 591. Repeals the requirement for a chaplain at the United States Air Force Academy appointed by the President.
• Sec. 1085. A sense of Congress resolution that there should be within the National Security Council a Special Adviser to the President on International Religious Freedom who should serve as liaison with the Ambassador at Large for International Religious Freedom, the United States Commission on  International Religious Freedom, Congress and religious nongovernmental organizations.
• Sec. 1263 (Part of the ‘Global Magnitsky Human Rights Accountability Act). Authorizes the President to impose sanctions on any foreign person who is responsible for extrajudicial killings, torture or other gross human rights violations against individuals in a foreign country who, among other things, exercise, defend or promote freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections.
• Section 2829F provides for return of certain lands at Fort Wingate, New Mexico to the Zuni Tribe and Navajo Nation. Certain of the land is to be held in trust with shared cultural and religious access by the Zuni and Navajos.

The final bill did not include the controversial Russell Amendment which would have allowed religious organizations that enter government contracts to require that their employees adhere to the organization's religious tenets. This would have permitted religious organizations that oppose same-sex marriage to refuse to hire those in same-sex relationships. (Background).

Company Using FLDS Child Labor Held In Contempt

In Perez v. Paragon Contractors Corp., (D UT, Dec. 6, 2016), a Utah federal district court held that a construction company which had previously been enjoined from using child labor was in contempt for now, in cooperation with the FLDS Church, using unpaid child labor to harvest pecans at a Ranch with which the construction company contracted. The court found that

The FLDS church closed its non-public schools during the pecan harvest. In contrast, the public schools in the area were not closed. Instead of going to school for their education, the children congregated at the schools, loaded into vans, and were sent to the Ranch, in good weather and bad.

The children’s working conditions were often harsh. The children did not have an opportunity to rest if they wanted and often were not given any lunch.

The court required the construction company to pay $200,000 into a fund to be used to compensate children who were forced to work on the Ranch at a rate equal to minimum wage plus overtime. The court also appointed a special master to evaluate ongoing compliance with the injunction for 5 years. Salt Lake Tribune and Fox 13 reports on the decision. (See prior related posting.)

Church Lacks Standing In Recall Petition Counterclaim

In City of El Paso, Texas v. Tom Brown Ministries, (TX App., Dec. 7, 2016), a Texas state appeals court dismissed on standing grounds a counterclaim by a church that had been involved in recall efforts against the mayor of El Paso who supported re-establishing domestic partnership benefits for city employees. In this phase of the long-running case, at issue was the Church's counterclaim against the city and the Mayor in his official capacity contending that they violated the Church's constitutional right to circulate recall petitions when they brought suit claiming that the Church's recall activities violated election laws. The court concluded in part:

[T]he City never took any unconstitutional actions against Appellees and never applied any unconstitutional policies against them. Rather, it was Cook [the Mayor], in his individual capacity, who sought redress for private injuries arising from Appellees’ alleged violations of the Election Code in circulating the recall petitions, and it was this Court that directed the City to decertify the recall petitions and to cancel the recall election.... The City never engaged in any past unconstitutional conduct toward Appellees, and there is no basis for any fear the City will unlawfully enforce the Election Code against Appellees in the future.

4th Circuit Hears Oral Arguments In Two Religion Cases

Yesterday the U.S. 4th Circuit Court of Appeals heard arguments in American Humanist Association v. Maryland-National Capital Park and Planning Commission (audio of oral arguments). In the case, a Maryland federal district court rejected an Establishment Clause challenge to the 90-year old Peace Cross, a 40-foot tall Veteran's Memorial in the shape of a cross. (See prior posting.) Reporting on the oral arguments, the Washington Post said in part:

Two appeals court judges clearly stated that there is no way to view the Peace Cross in Bladensburg other than as a symbol of Christianity.

The third judge on the appeals panel just as strongly said that the marble-and-cement monument is a secular war memorial honoring the death and sacrifice of those lost in battle.

Yesterday the 4th Circuit also heard oral arguments in EEOC v. COMSO: Energy, Inc. (audio of oral arguments). In the case, a West Virginia federal district court awarded damages to an Evangelical Christian mine employee who who objected to biometric hand scanning to track time and attendance, believing that it involves the Mark of the Beast forbidden in the Book of Revelation. (See prior posting.)

German Top Court Says Muslim School Girl Must Take Part In Mixed Swim Classes

Germany's Federal Constitutional Court-- the country's highest court-- yesterday ruled that an 11-year old Muslim school girl must take part in mixed gender swim classes. According to The Guardian, the girl's parents objected to her taking part even wearing the full-body burkini, saying it still revealed the shape of her body in violation of Islamic law.  The court concluded that there are no binding rules in Islam to define proper clothing.

Israeli Rabbinate Will Adopt New Standards Likely To Validate Conversion of Ivanka Trump

As previously reported, in Israel in July the country's Supreme Rabbinical Court (which hears appeals in personal status matters) ruled that it will not recognize religious conversions performed by U.S. modern Orthodox Rabbi Haskel Lookstein.  Lookstein is the New York rabbi who officiated in the conversion of Donald Trump's daughter Ivanka. In recent years, the Israeli Rabbinate has become more restrictive in recognizing conversions performed abroad.  Now however it appears that Donald Trump's victory in the U.S. presidential election has even impacted the Israeli Rabbinate.  According to JTA, in separate announcements yesterday both Israel's Ashkenazi and Sephardi chief rabbis announced that they will convene a meeting next week with the Chief Rabbinate Council and the Supreme Rabbinical Court to create standards for determining which rabbis' conversions will be recognized.  Once a rabbi is on the list, his conversions will be automatically recognized without further investigation. Chief Rabbi Yitzhak Yosef suggested that the standards will result in recognition of Ivanka Trump's conversion.

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.