Study Shows Religious Affiliation of New 115th Congress

Pew Research Center yesterday published its study of the religious makeup of the new 115th Congress.  91% of the members of Congress describe themselves as Christian.  There is more religious diversity among Democrats in Congress than among Republicans.  Of the 295 Republicans, 293 are Christian and 2 are Jewish.  Of the 242 Democrats, 194 are Christian, 28 are Jewish, 3 are Buddhist, 3 are Hindu, 2 are Muslim, 1 is Unitarian Universalist, 1 is religiously unaffiliated, and 10 declined to state their religious affiliation. Of the 484 Christian members of Congress, 168 are Catholic, 13 are Mormon and 5 are Orthodox Christian.  The others span various Protestant denominations, most being Baptist, Methodist, Anglican/ Episcopal, Presbyterian and Lutheran.

Ivanka and Jared Choose A Synagogue

The Forward yesterday reported that First Daughter Ivanka Trump and her husband Jared Kushner have decided on a home in the Kalorama neighborhood of Washington, D.C. and will attend synagogue at the nearby Chabad Lubavitch congregation known as TheSHUL of the Nation's Capital. The small congregation draws 40 to 60 worshipers each Sabbath. As observant Jews, Kushner and his family do not drive on the Sabbath and thus need a synagogue within walking distance.

India Supreme Court Gives Broad Reading To Law Banning Religious Appeals To Voters

In Singh v. Commachen, (Sup. Ct. India, Jan. 2, 2016), the Supreme Court of India in a 4-3 decision yesterday interpreted broadly Sec. 123(3) of the Representation of the People Act which prohibits appealing to voters on the basis of religion, race, caste, community or language.  Indian Express reports on the decision and its impact:

By a 4-3 majority ruling, a seven-judge Constitution Bench held that an election will be annulled not only if votes are sought in the name of the religion of the candidate but also when such an appeal hinges on religion of voters or candidate’s election agents or by anybody else with the consent of the candidate.

The third class will include religious and spiritual leaders, often engaged by candidates to mobilise their followers. The majority view interpreted Section 123(3) ... to mean that this provision was laid down with an intent “to clearly proscribe appeals based on sectarian, linguistic or caste considerations ... and send out the message that regardless of these distinctions, voters were free to choose the candidate best suited to represent them.”....

Meanwhile ... [three justices] dissented ..., holding that the expression “his” used [in the statute] in conjunction with religion, race, caste, community or language is in reference to the candidate, in whose favour the appeal to cast a vote is made, or that of a rival candidate when an appeal is made to refrain from voting for another.

“To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction,” the minority judgment said.

Another Challenge Filed To HHS Rule on Transgender and Pregnancy Termination Discrimination

Another lawsuit has been filed challenging the Department of Health and Human Services rules that bar discrimination on the basis of gender identity or termination of pregnancy in the delivery of medical services by, among others, health facilities receiving federal financial assistance. Plaintiffs in this suit are Catholic organizations, including the entity that administers self-funded health plans for Catholic employers. The complaint (full text) in Catholic Benefits Association v. Burwell, (D ND, filed 12/28/2016) alleges that the rule requires plaintiffs to act in contravention of Catholic teachings:

HHS has taken a little-remarked-upon section of the ACA that prohibits discrimination “on the basis of sex” and turned it into a mandate that coerces Catholic hospitals and other healthcare providers into performing, supporting, and even covering gender transition procedures, and coerces other Catholic employers, even Catholic dioceses, into covering them. The 1557 Rule also prevents Catholic entities from discriminating on the basis of “termination of pregnancy,” a phrase that likely creates an abortion mandate.

Catholic Review reports on the lawsuit.

Last month, a similar challenge was filed in the same North Dakota federal district court by different plaintiffs. (See prior posting). Last week a Texas federal district court issued a nation-wide preliminary injunction against enforcement of the rules being challenged. (See prior posting).

New Jersey Mosque Wins Zoning Challenge

In Islamic Society of Basking Ridge v. Township of Bernards, (D NJ, Dec. 31, 2016), a New Jersey federal district court granted partial summary judgment to plaintiffs claiming religious discrimination by a township against an Islamic organization.  The court summarized its 57-page decision as follows:

This case requires the Court to examine a township planning board’s denial of a Muslim congregation’s site plan application to build a mosque.... Plaintiffs challenge the Planning Board’s decision on two bases: (1) Defendants’ disparate application of an off-street parking requirement between Christian churches and Muslim mosques, pursuant to the Religious Land Use and Institutionalized Persons Act...; and (2) the purported unconstitutional vagueness of a parking ordinance... under the Federal and New Jersey Constitutions. After careful consideration, the Court determines that Plaintiffs are entitled to judgment on the pleadings with regard to both issues.

NJ Advance Media reports on the decision.

Israeli Former Chief Rabbi Reaches Plea Deal In Bribery Case

Times of Israel reported last week that Israel's former Ashkenazi chief rabbi Yona Metzger has reached a plea deal with Israeli prosecutors.  He will plead guilty to fraud, theft, conspiracy, breach of trust, money laundering, tax offenses and accepting bribes, in exchange for a reduced jail sentence.  Metzger was charged with receiving NIS 10 million ($2.6M (US) at current exchange rates) in bribes, and keeping NIS 7 million for himself. As previously reported, the bribes came, among others, from wealthy businessmen seeking to convert to Judaism, and for other services he performed in his role as Chief Rabbi. Many of the bribes came in the form of donations to non-profit organizations tied to Metzger.

Recent Articles of Interest

From SSRN:

• Yinka Olomojobi, Marriage in Nigeria Across Ages: Problems and Prospects,(September 24, 2016).
• Effie Fokas, Comparative Susceptibility and Differential Effects on the Two European Courts: A Study of Grasstops Mobilizations Around Religion, (Oxford Journal of Law and Religion, 0, 1-33, 2016).
• Eva Brems, Corina Heri,  Saïla Ouald Chaib & Lieselot Verdonck, Head-Covering Bans in Belgian Courtrooms and Beyond: Headscarf Persecution and the Complicity of Supranational Courts, (Forthcoming, Human Rights Quarterly, Fall 2017).
• Keren Weinshall Margel, Udi Sommer, & Ya'acov Ritov, Ideological Influences on Governance and Regulation: The Comparative Case of Supreme Courts, (Regulation & Governance, Forthcoming).
• Ioannis Iglezakis, The Legal Regulation of Hate Speech on the Internet and its Conflict with Freedom of Expression, (December 26, 2016).

From SmartCILP:

• Curtis Schube, A New Era in the Battle Between Religious Liberty and Smith: SOGI Laws, Their Threat to Religious Liberty, and How to Combat Their Trend, 64 Drake Law Review 883-917 (2016).

Church of Norway Formally Separated From the State Today

As reported by Sputnik News, today the Church of Norway, a Lutheran institution, officially became a separate entity after 500 years as an arm of the state. The movement toward disestablishing the Church was begun by Parliament in 2008. (See prior posting.) As of today, 1,250 priests and bishops will no longer be government officials. However, ties between the state and church remain. Norway's Constitution was amended to implement today's change.  While Article 2 now reads: "Our values will remain our Christian and humanistic heritage," Article 16 provides:

The Norwegian church, an Evangelical-Lutheran church, shall remain the Norwegian National Church and will as such be supported by the State.

However prior provisions making the Evangelical-Lutheran Church the "official religion" of the nation and placing the king in charge of religious matters were eliminated.

Recent Prisoner Free Exercise Cases

In Oliver v. Adams, 2016 U.S. Dist. LEXIS 177694 (ED CA, Dec. 22, 2016), a California federal magistrate judge allowed an inmate to move ahead with his suit for injunctive relief to the extent he claims systemic discrimination against Shetaut Neter throughout the California correctional system, but dismissed on various grounds other claims relating to past denials of a religious diet and other religious accommodations.

In Sirleaf v. Robinson, 2016 U.S. Dist. LEXIS 178028 (ED VA, Dec. 21, 2016), a Virginia federal district court dismissed without prejudice for failure to exhaust administrative remedies an inmate's claims that he was denied religious feasts of his "Common Wealth of Israel" faith.

In Colliton v. Bunt, 2016 U.S. Dist. LEXIS 178765 (SD NY, Dec. 27, 2016), a New York federal district court rejected a complaint that plaintiff's probation conditions requiring attendance at treatment and involvement in the community interfere with his lifestyle of prayer.

In Stewart v. Richardson, 2016 U.S. Dist. LEXIS 178809 (SD NY, Dec. 27, 2016), a New York federal district court allowed an inmate to move ahead with some claims alleging that his religious material, including his bible and family-made items, were confiscated.

In Rials v. Avalos, 2016 U.S. Dist. LEXIS 178827 (ND CA, Dec. 27, 2016), a California federal district court dismissed with leave to amend a complaint by an inmate who was a member of the Moorish Science Temple of America that a rules violation report placed in his file reduced his ability to practice his religion.

In France v. Allman, 2016 U.S. Dist. LEXIS 178843 (ND CA, Dec. 27, 2016), a California federal magistrate judge dismissed a complaint by an Odinist inmate that his request for religious meals was denied.

In Beaver v. Nevada, 2016 U.S. Dist. LEXIS 179307 (D NV, Dec. 23, 2016), a Nevada federal district court dismissed with leave to amend an inmate's complaint over denial of a diet based on his religious belief that he should not eat things with a conscience.

In Fields v. Paramo, 2016 U.S. Dist. LEXIS 179423 (ED CA, Dec. 28, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that his request for a religious circumcision was denied.

In Floyd v. Williams, 2016 U.S. Dist. LEXIS 179903 (SD GA, Dec. 29, 2016), a Georgia federal magistrate judge recommended dismissing a Muslim inmate's complaint that because he was a Tier II inmate, he was not permitted to participate in a second Eid-ul-Fitr feast paid for by inmates, but limited to those in general population.

In Brown v. Ducart, 2016 U.S. Dist. LEXIS 179948 (ND CA, Dec. 29, 2016), a California federal district court permitted an inmate who is a minister affiliated with the United Kings Against Genocidal Environments religious community to move ahead with his claim that his group's religious material was confiscated and that he was told he could not assemble in the prison chapel until he changes his "religious ideology," as well as the name of his group.

Happy New Year 2017 !

Dear Religion Clause Readers:

Happy New Year 2017! I hope you continue to find Religion Clause a useful, if not indispensable, source of news on religious liberty and church-state developments.  While I focus primarily on developments in the United States, I have increased my coverage of international law-and-religion issues that are of special interest.

In a year in which distrust of media outlets and concerns over "fake" news reports have gained prominence, I hope I have remained reliably objective in my posts and have provided links to an abundance of primary source material for your use in fleshing out your understanding of developments.  I am pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, clergy, governmental agency personnel, and others working professionally dealing with church-state relations and religious liberty concerns.

Last year was a year of surprises-- not the least of which were the untimely death of U.S. Supreme Court Justice Antonin Scalia and the election of Donald Trump as President of the United States.  Both of these will significantly impact church-state and religious liberty developments in 2017.

The aphorism "Predictions are very difficult, particularly if they are about the future" has variously been ascribed to Neils Bohr, Yogi Berra and others.  Well here is my difficult, and some might say foolhardy, prediction for 2017.  The year has the potential of bringing seismic developments in the church-state and religious liberty arenas.  There are three areas to watch.

First, religious liberty claims are increasingly seen as part of the "culture wars"-- a religious, social and political divide that became more salient with the election of Donald Trump.  A fundamental issue that is likely to pervade a number of specific disputes this year is how to distinguish a "religious" claim that enjoys special legal protection from a cultural claim that is subject to the will of political majorities.

Second, the added wall of separation provided by Blaine Amendments in numerous state constitutions is under challenge in the Supreme Court in the Trinity Lutheran case.  This challenge coincides with Donald Trump's designation as Secretary of Education of an individual who is a vigorous proponent of school choice.  In recent years, Blaine Amendments have been a primary stumbling block for school vouchers and similar plans.

Third, during the campaign, Donald Trump promised evangelical audiences that repeal of the Johnson Amendment was high on his agenda.  Repeal would mean that houses of worship could actively participate in political campaigns and still keep their non-profit status.  The revolution in campaign financing resulting from on-line fundraising from millions of supporters that was finely tuned in the 2016 elections could be supplemented by the raising of what would effectively be tax-deductible campaign funds to finance electioneering by religious organizations.

Continue to read Religion Clause to find out if developments bear out any of my speculative suggestions.  I also remind you that the Religion Clause sidebar contains links to a wealth of resources.  Please e-mail me if you discover broken links or if there are other links that I should consider adding.

Thanks to all of you who are loyal readers-- both those who have followed Religion Clause for years and those of you who have only recently discovered the blog.  Thank you for making Religion Clause the most recognized source for keeping informed on the intersection of religion with law and politics.  I encourage you to recommend Religion Clause to colleagues and friends who might find it of interest.  It is accessible via Twitter and Facebook, as well as through traditional online access and RSS feeds.

Best wishes for 2017!  Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year.

Howard M. Friedman

Court Enjoins Health Care Gender Identity and Abortion Non-Discrimination Rule

Today, in a 46-page opinion, a Texas federal district court issued a nationwide preliminary injunction barring enforcement of a regulation issued by the Obama administration under the Patient Protection and Affordable Care Act that prohibits discrimination on the basis of gender identity or termination of pregnancy in health care programs that receive federal financial assistance. In Franciscan Alliance, Inc. v. Burwell, (ND TX, Dec. 31, 2016), a Texas federal district court, in a suit by eight states and three private health care providers, first held that the Department of Health and Human Services exceeded its authority in interpreting the statutory ban on "sex" discrimination to include discrimination on the basis of gender identity, stating:

Title IX and Congress’s incorporation of it in the ACA unambiguously adopted the binary definition of sex.

The court also concluded that the health care providers have shown a substantial likelihood that the challenged Rule violates the Religious Freedom Restoration Act in requiring them to perform and provide insurance coverage for gender transitions and abortions in violation of their religious beliefs. Becket Fund issued a press release announcing the decision.

Judge Reed O'Connor who handed down the decision had previously issued a nationwide injunction baring enforcement of federal guidelines interpreting Title IX as barring discrimination by schools on the basis of gender identity. (See prior posting.)

Obama Appoints 4 To Holocaust Memorial Council

Even though the formal change in Administrations is less than a month away, President Obama continues to make Presidential appointments to various councils.  Yesterday the White House announced that the President intends to appoint four individuals to the United States Holocaust Memorial Council. The four are: Walter Ray Allen Jr. (a retired professional basketball player), Deborah A. Oppenheimer (an independent film producer), Scott Straus (University of Wisconsin professor), and Jeremy M. Weinstein (Stanford University professor). According to the U.S. Holocaust Memorial Museum website:

The [Holocaust Memorial] Council, which meets twice a year, consists of 55 members appointed by the president, as well as five members each from the Senate and House of Representatives and three ex-officio members from the Departments of Education, Interior, and State. Presidential appointments serve for a five-year term; 11 members’ terms expire each year.

Clergy Who Will Speak At Trump Inaugural Announced

The Washington Post reported this week on the religious figures who will deliver prayers as part of Donald Trump's inauguration ceremony. According to the Trump Inaugural Committee, religious readings will be delivered by Cardinal Timothy Dolan, the Rev. Franklin Graham, Rabbi Marvin Hier, Bishop Wayne T. Jackson, the Rev. Samuel Rodriguez and Pastor Paula White.

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.