Suit Challenges Zoning Approval For Temporary Jewish School

A resident of Ramapo, New York filed suit in a state trial court earlier this month challenging the decision of the Ramapo Zoning Appeals Board which allowed an Orthodox Jewish congregation to convert a single family residence into a temporary school.  The Board relied on a provision of the zoning code that allows use of temporary modular trailers as classrooms for up to two years while obtaining approval to build a permanent school. The residence meets fire and building codes.  The complaint (full text) in Katz v. Town of Ramapo, (Rockland Cty Sup. Ct., filed 12/19/2016) contends that zoning authorities should have required the school to go through the procedures to obtain a special use permit, including a public hearing.  According to the Lower Hudson News, zoning officials say it would not make sense to require tearing down of the house and replacing it with temporary modular trailers, and that kind of burden could not be justified under RLUIPA.

Obama Designates New Monuments Including Sacred Native American Site

Yesterday President Obama issued Executive Orders designating the Gold Butte area in the Mojave Desert in Nevada (full text of Executive Order) and the buttes known as Bears Ears in southeast Utah (full text of Executive Order) as National Monuments. The Bears Ears site is sacred to a number of Native American tribes, including the Ute Mountain Ute Tribe, Navajo Nation, Ute Indian Tribe of the Uintah Ouray, Hopi Nation, and Zuni Tribe. In a Statement, President Obama emphasized that he also has established a Bears Ears Commission to bring tribal expertise and traditional knowledge to the management of the Bears Ears National Monument.  In a statement on the White House website, the president of the Navajo Nation shared his thoughts on the establishment of Bears Ears National Monument.

UPDATE: Utah Gov. Gary Herbert (press release) and Utah Attorney General Sean Reyes (press release) both announced their opposition to the designation of Bears Ears.  Reyes said in part:

The sacred tribal areas in and around Bears Ears should absolutely be protected but in a way that is legally sound and that makes sense. A national monument in San Juan County does not preserve the land but divests it from the very people for whom it is sacred. The local Navajo will no longer be able to gather medicine or firewood, graze cattle, hunt, maintain their livelihoods or access the mountain heights for their religious ceremonies....

My office is working closely with the Governor’s office, federal and state legislators, and San Juan County to file a lawsuit challenging this egregious overreach by the Obama Administration. This case is different from other past challenges by states and counties and we are confident in our chances of success. But the courtroom is not our only option. Our federal delegation is working hard to defund the designation or rescind it altogether. Additionally, we look forward to working with the new Presidential Administration on ways to curtail or otherwise address the designation.

Plea Agreement Reached In FLDS Food Stamp Fraud Prosecution

AP reports that Seth Jeffs, a high-ranking member of the polygamous FLDS Church, has accepted a plea deal in his prosecution for food stamp fraud. Under FLDS doctrine known as the Law of Consecration, faithful members who were food stamp recipients were required to donate their benefits to the FLDS church through a clearinghouse known as the Bishop’s Storehouse. Food and household items were then redistributed to all in the community, whether or not they were food-stamp eligible. (See prior posting.) Last month Jeffs lost in his attempt to have his indictment dismissed on religious free exercise grounds. In the plea agreement, Jeffs pleaded guilty to felony fraud and prosecutors accepted the 6 months he has already served in jail as his punishment. Conspiracy and money laundering charges were dropped, and Jeffs was released from jail yesterday.  Jeffs could have faced 20 years in prison. Jeffs is the second of 11 defendants to reach a plea agreement with prosecutors, and plea deals with other defendants are possible.

UPDATE: Fox News (Jan. 4) reports that 6 other defendants pleaded guilty in plea deals that merely require them to take a class on the proper use of SNAP (food stamp) benefits.

NYPD To Allow Turbans and Beards For Religious Purposes

In an attempt to accommodate Sikh officers, the New York Police Department announced Wednesday that officers who are granted religious accommodation from the Department's Equal Opportunity Office will be allowed to wear one-half inch beards. They may also wear blue turbans  with a hat police shield attached, instead of the traditional police cap. New York Times and the New York Daily News report on the new policy which was announced by Police Commissioner  James O’Neill standing with a group of Sikh officers in turbans after an NYPD Academy graduation ceremony.

Sikh Neurologist Brings Title VII Suit Against Practice Group

The Sikh Coalition this week announced the filing of a Title VII lawsuit on behalf of a neurologist who claims that he was not hired by a physician‐owned  multi‐specialty medical group in Clarksville‐Montgomery County, Tennessee because of his religion, race and national origin.  The complaint (full text) in Singh v. Premier Medical Group, P.C., (MD TN, filed 12/27/2016) alleges:

Only after requesting information regarding Plaintiff’s appearance, and receiving and reviewing photographs of Plaintiff and information about his Sikh religious beliefs did Defendants refuse to hire Plaintiff.

Amish Sue Over City Requirement For Equine Diapers

Two members of the Old Order Swartzentruber Amish sect filed suit last week in a Kentucky state court challenging a 2014 amendment to Auburn, Kentucky's animal waste ordinance requiring horses and other large animals to wear animal catching devices.  As reported by WBKO and Bowling Green Daily News, the ordinance targets the Amish, requiring their horses to wear equine diapers.  The sect's elders decided that it violates religious principles to comply with the requirement. A number of Amish have already been prosecuted under the ordinance. (See prior posting). The lawsuit contends that the ordinance violates state and federal constitutional provisions as well as the Kentucky Religious Freedom Restoration Act.

EEOC Suit On Flu Shot Exemptions Is Settled

The EEOC last week announced a settlement of a religious discrimination lawsuit it had filed against the Erie, Pennsylvania-based Saint Vincent Health Center.  At issue was a requirement by the health center that in order for employees to obtain religious exemptions from the requirement they obtain flu shots, they were required to present a certification from a member of the clergy.  Six employees who claimed religious exemptions were not able to present documentation from clergy. (See prior posting.) Under the settlement the health center will pay $300,000 in back pay and damages and offer the employees reinstatement.  A consent decree was also agreed upon under which, among other things, the employer is barred from rejecting a religious accommodation request merely because the employee's belief is not an endorsed teaching of any particular religion or denomination. National Law Review reports on the settlement.

Kentucky Governor Declares 2017 As "Year of the Bible"

On Dec. 19, Kentucky Governor Matt Bevin signed a Proclamation (full text) declaring 2017 to be the "Year of The Bible."  A similar designation was given by the governor to 2016.  The Proclamation notes the Bible Reading Marathon that begins on January 1 in which leaders in each Kentucky county will take 15 minute shifts reading through the entire Bible. The Lexington Herald-Leader last week reported on the governor's signing of the proclamation.

City Changes Policy On Arrestees Wearing of Religious Head Coverings

As previously reported, in May a Muslim woman filed suit in federal court against the city of Long Beach, California and its police complaining that her hijab (headscarf) was forcefully removed while she was being booked by police and held overnight in jail.  The Long Beach Press-Telegram reported yesterday that the police have now changed their policy regarding religious headgear.  Last month police chief Robert Luna issued an order providing:

If an arrestee is wearing a religious head covering, employees shall make all reasonable efforts to allow this practice, except where safety and security concerns dictate otherwise.

The jail administrator says this means that the person arrested will be allowed to keep his or her head covering unless there is concern that the person is potentially suicidal and could use the item to harm himself or herself.

Top Ten Religious Liberty and Church-State Developments of 2016

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year.  This was a busy year, and a number of the important developments amounted to themes that spanned many months.  So here are my Top Ten picks for the rather chaotic year that is currently coming to an end. I welcome e-mail comment from those who disagree with my choices.

1. The unexpected death of Justice Scalia leaves the Supreme Court split on important issues, including the challenges to the Obamacare contraceptive coverage mandate.

2. Religion plays unusual roles in the Presidential election contest.  Donald Trump raises issues of Muslim immigration, repeal of the Johnson amendment, draws support from Evangelicals despite a personal history that might raise questions with religious conservatives, and receives support from the alt-Right which includes anti-Semitic elements.  Hillary Clinton who has deep personal religious roots does not emphasize these in her campaign.

3. Transgender rights-- particularly access to bathrooms-- become a religious as well as political issue as the Obama administration asserts that existing anti-discrimination provisions in federal law cover discrimination on the basis of sexual orientation and gender identity.

4. Supreme Court grants review in ERISA "church plan" exemption cases.  Billions of dollars in potential underfunding of retirement plans by religiously-affiliated health care systems around the country are at issue.

5. Fallout from the legalization of same-sex marriage continues as various wedding service providers assert the right to refuse to serve same-sex couples, Mississippi's Conscience Protection Act is struck down, and Alabama Chief Justice Roy Moore appeals his suspension growing of his resistance to accepting the Supreme Court's marriage equality ruling.

6. Latin crosses as part of veterans' memorials, in parks, and on county seals and the like become the latest focus of the battle over religious displays on public property.

7. State "Blaine Amendments" again become the focus of attention as the Supreme Court grants review in the Trinity Lutheran Church case and Oklahoma voters defeat a proposal to eliminate Blaine Amendments from the state constitution.

8. Federal and state RFRA's continue to be asserted, often but not always unsuccessfully, in unusual contexts-- e.g. challenging "In God We Trust" on currency, as a defense to tax evasion charges, as a defense to food stamp fraud, in connection with bankruptcy discharges, and in treatment of transgender employees.

9. Congress expands the U.S. role in protecting international religious freedom by passing the Frank R. Wolf International Religious Freedom Act.

10.  Justice Department sues cities under Religious Land Use and Institutionalized Persons Act for placing zoning impediments in the way of mosque construction.

For an alternative view of the Top Ten Religious Liberty Stories of 2016, see this post by Baptist Joint Committee blogger Don Byrd.

National Menorah Lighting Ceremony, With More Tension Than Usual

As reported by WTOP, yesterday in Washington, on the Ellipse near the White House, American Friends of Lubavitch sponsored the lighting of the National Menorah.  According to the Washington Examiner, the ceremony was more tense than usual. Representing the Obama Administration, Acting Treasury Undersecretary for Terrorism and Financial Intelligence Adam Szubin helped light the Menorah after remarks concluding with a hope "that our lights steadily increase, until the world is illuminated by a continual and unwavering light." But Rabbi Levi Shemtov representing the event sponsors used the theme of light to criticize the Obama Administration for its decision last week not to veto a U.N. Security Council resolution sharply criticizing Israel's settlement policies.  Shemtov said:

... [S]ome of us are so sad at what happened there with regard to Israel. We must remember that the way to counter any darkness, any disappointment is not with harsh rhetoric, not with anger, but when we create light, the darkness dissipates.

Meanwhile, the Smithsonian's SmartNews last week carried an interesting account of how the tradition of a national menorah began in 1979 when Abraham Shemtov pressed the idea:

... [T]he secretary of the interior initially denied him a permit to put a menorah on government property, on the grounds that it would violate the First Amendment.... What happened next was a classic piece of Washington insider work. Shemtov ... "called his friend Stu Eizenstat, an adviser to President Jimmy Carter.  Eizenstat gave the secretary a choice: Either approve the permit or deny the National Christmas Tree’s permit too. If he disobeyed, Eizenstat would take the matter straight to Carter, who would side with Eizenstat—a major embarrassment for the secretary."  Shemtov got the permit, and a tradition was born.

Cert Filed In RFRA Case Decided By Armed Forces Court of Appeals

On Dec. 23, a petition for certiorari (full text) was filed with the U.S. Supreme Court in United States v. Sterling.  In the case, the U.S. Court of Appeals for the Armed Forces held that a Marine Lance Corporal failed to establish a prima facie case under RFRA in defending against charges growing out of her work space posting of unauthorized signs containing Biblical quotations. (See prior posting.)  The petition for review by the Supreme Court frames the question presented as:

whether the existence of a forced choice between what religion and government command is necessary to establish a "substantial burden" under the Religious Freedom Restoration Act.

Independent Journal Review reports on the filing of the cert. petition.

Recent Articles of Interest

From SSRN:

• Belinda Carpenter, Gordon Tait, Carol Quadrelli & Ian Thompson, Investigating Death: The Emotional and Cultural Challenges for Police, (Policing and Society, 26(6), pp. 698-712 (2015)).
• Neil James Foster, Churches and the Law of Sanctuary in Australia, (March 4, 2016).
• Neil James Foster, How Should Religious Marriage Celebrants Respond If Same Sex Marriage Is Introduced in Australia?, (September 25, 2015).
• Fabienne Bretscher, The Swiss Judiciary and International Human Rights Bodies: A Closer Look at Muslim Religious Practices in Public Schools, (June 14, 2016).
• Joel Nolette, Whole Woman's Health v. Hellerstedt: Judicial Review When the Court Wants To, (Georgetown Journal of Law & Public Policy, Vol. 14, No. 2, 2016).
• Susan A. Bandes, Compassion and the Rule of Law, (International Journal of Law in Context vol. 13 issue 2 (2017 Forthcoming)).
• Eric Franklin, A More Charitable Charity: Administrative Necessity Provides an Opportunity to Promote Altruism in Charities, (December 14, 2016).

From SSRN (Islamic Law);

• Ibrahim Nuruddeen Muhammad, Waqf Based Philanthropy: A Definition and Obstacles to Waqf Knowledge Acquisition in North-Western Nigeria, (1st Kano Waqf International Conference (KWIC) (Dec. 2016).
• Sakirman MSI, Indonesia Islamic Law Study on Children Nasab,  (December 21, 2016).
• Avner M. Emon, Fiqh (A Historiography), (Fiqh: The Oxford Handbook of Islamic Law, Edited by Anver M. Emon and Rumee Ahmed (2016)).
• Avner M. Emon, Ijtihad, (Ijtihad: The Oxford Handbook of Islamic Law Edited by Anver M. Emon and Rumee Ahmed (2015).

From SmartCILP:

• Reza Afshari, LGBTs in the Islamic Republic of Iran. (Reviewing Lesbian, Gay, Bisexual and Transgender Rights in Iran: Analysis from Religious, Social, Legal and Cultural Perspectives, by the International Gay and Lesbian Human Rights Commission), 38 Human Rights Quarterly 814-834 (2016).
• Nehaluddin Ahmad, Ahmad Masum & Abdul Mohaimin Ayus, Freedom of Religion and Apostasy: The Malaysian Experience, 38 Human Rights Quarterly 736-753 (2016).
• Jeffrey A. Herman, Resolving ERISA's "Church Plan" Problem, 31 A.B.A. Journal of Labor & Employment Law 231-256 (2016).
• B. Jessie Hill, The First Amendment and the Politics of Reproductive Health Care, 50 Washington University Journal of Law & Policy 103-122 (2016).

Court Upholds Vaccination Requirement For Paramedic Clinical Students

In George v. Kankakee Community College, 2016 Ill. App. Unpub. LEXIS 2760 (IL App., Dec.. 20, 2016), an Illinois state court of appeals upheld a hospital's policy requiring community college students enrolled in the clinical portion of the school's paramedic course at the hospital to receive various vaccinations.  Plaintiff Nicholas George asserted religious objections to the vaccines and argued that the religious freedom and equal protection provisions of the Illinois constitution required he be granted an exemption. The court disagreed, holding that the vaccination requirement is a neutral law of general application, and that the Illinois Constitution allows requirements that may restrict religious freedom in order to promote the safety of the citizens of the state. The court also rejected various other state law challenges.

Recent Prisoner Free Exercise Cases

In Ali v. Eckstein, 2016 U.S. Dist. LEXIS 175024 (ED WI, Dec. 19, 2016), a Wisconsin federal district court ordered a Muslim inmate who sued over his inability to sign up to participate in Ramadan to file an amended complaint curing pleading deficiencies.

In Harvey v. Gonzalez, 2016 U.S. Dist. LEXIS 175793 (D CO, Dec. 20, 2016), a Colorado federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 175796, Nov. 21, 2016) and dismissed as moot a Muslim inmate's complaint about confiscation of his Qur'an and his inability to obtain a replacement.

In Carawan v. Mitchell, 2016 U.S. Dist. LEXIS 175858 (WD NC, Dec. 20, 2016), a North Carolina federal district court permitted a Muslim inmate to move ahead with his complaint that he was forced to choose between attending class to earn gain-time credits and attending Muslim worship services held at the same time.

In Husband v. Dougherty, 2016 U.S. Dist. LEXIS 175890 (D AZ, Dec. 19, 2016), an Arizona federal district court dismissed an inmate's claim that his access to the grievance process was blocked because of his religion.

In Baines v. Hicks, 2016 U.S. Dist. LEXIS 176116 (ED VA, Dec. 19, 2016), a Virginia federal district court dismissed a Muslim inmate's complaint regarding removal from the common fare diet and pressure to consume food from the common fare diet that did not meet his religious dietary requirements.

In Walters v. Livingston, 2016 Tex. App. LEXIS 13507 (TX App., Dec. 21, 2016), a Texas state appeals court held that a provision in the state's Religious Freedom Restoration Act that bars a person filing suit if the burden on religious exercise has been cured does not allow the state to avoid liability by curing a burden once the suit has been filed. Here the suit was by a Native American inmate.

In Pigues v. Solano County Jail, 2016 U.S. Dist. LEXIS 176910 (ED CA, Dec. 21, 2016), a California federal magistrate judge recommended dismissal of a suit by a Jehovah's Witness inmate complaining that correctional officers confiscated two religious drawings they thought to be gang related.

In Villalobos v. Bosenko, 2016 U.S. Dist. LEXIS 176924 (ED CA, Dec. 20, 2016), a California federal magistrate judge dismissed a complaint by an inmate who was a recent convert to Buddhism that he was denied a religiously compliant vegetarian diet that could have been served by combining elements of existing diets available to inmates.

In Stathum v. Nadrowski, 2016 U.S. Dist. LEXIS 177492 (D NJ, Dec. 22, 2016), a New Jersey federal district court allowed a Muslim inmate to proceed with his equal protection challenge, but not his free exercise challenge, to requiring him to accept vegetarian meals to satisfy his religious dietary needs instead of kosher meals that were available to Jewish inmates.

Obamas Wish Americans Merry Christmas

In his Weekly Address, posted as a video on the White House website, President Obama and First Lady Michelle Obama wished all Americans a Merry Christmas. In his address, the President briefly reviewed the accomplishments of his Administration. They also recognized Americans in military service.

Settlement Reached In Dispute Over Muslim Cemetery

The town of Dudley, Massachusetts has reached an agreement to settle a suit brought by the Islamic Society of Greater Worcester that will allow a Muslim cemetery to be located in the town. Initial denial of permits led to widely publicized charges of religious discrimination.  The Boston Globe reports:

The settlement, approved Thursday evening by the Dudley Board of Selectmen, should result in an initial 6-acre cemetery on 55 acres of former farmland that would provide enough graves for “several generations of families of the Islamic Society of Greater Worcester,” said Jay Talerman, ... a lawyer for the Islamic Society. Along with some wetlands, the site also contains about another 6 acres that would be suitable for cemetery plots, but under the deal the Islamic Society agrees not to seek to expand the initial cemetery for at least a decade, he said....

Under the new settlement, the cemetery project will come back before the Dudley Zoning Board of Appeals, where “we’ve agreed there will be a special permit granted on mutually agreeable conditions,” [John] Davis [the town's counsel] said. The project will then be reviewed by the Board of Health, and, if plans affect wetlands, by the Conservation Commission...

DHS Removes NSEER Rules, Making Any Muslim Registry Program By Trump More Difficult

Yesterday the Department of Homeland Security issued a release (full text) removing regulations relating to the  National Security Entry-Exit Registration System (NSEERS).  As reported by Vox, in 2011 President Obama had suspended the program, which targeted Muslims, by removing all countries from the list of those to whom the registration requirements apply. The program as it operated after 9-11 required males on non-immigrant visas who are 16 years old or older from 25 countries-- 24 of them Muslim countries-- to register.  The much-criticized program led to 13,000 deportations. Yesterday's action completely removes the regulations.  The Department of Homeland Security, finding that the data captured under SEERS is now available through other means, concluded that the removal of the old rules is merely procedural to delete "regulations related to an outdated, inefficient, and decommissioned program."  DHS was thus able to delete the old rules without going through the notice and comment requirements of the Administrative Procedure Act by invoking the exception for "rules of agency organization, procedure, or practice."

The action, effective with publication in today's Federal Register, means that the incoming Trump Administration, which has variously called for registration of Muslim immigrants, or those entering the U.S. from Muslim countries, will need to go through the full Administrative Procedure Act notice-and-comment requirements to implement a registration system. It will not be able to just reinvigorate SEERS. New York Times also reports on the action by DHS.

2016 Law and Religion Bibliography Published By AALS Section

The Association of American Law Schools Law & Religion Section has issued its Winter 2016 Newsletter which includes an extensive bibliography of books and articles on law and religion published during the past year.  It also includes news about the AALS section and its members.

Catholic Health Educator Files EEOC Complaint

A First Liberty Institute press release announced the filing on Dec. 21 of an EEOC complaint (full text) on behalf of Alexia Palma, a health educator at Legacy Community Health, a Texas clinic for low income patients.  The complaint charges refusal by new management to continue to accommodate Palma's Catholic religious beliefs. New management refused to allow her, in the family planning class she sometimes taught, to show a video giving information on contraceptive methods instead of personally teaching the material.  She was told she must put aside her religious beliefs. Washington Post reports on the case.