No 1st Amendment Bar To Suit Over Board Seats In Two Sikh Dharma Entities

In Puri v. Khalsa, (9th Cir., Jan. 6, 2017), the U.S. 9th Circuit Court of Appeals, vacating the district court's dismissal, held that neither the ministerial exception doctrine nor the ecclesiastical abstention doctrine requires dismissal of a suit by the widow and children of the deceased spiritual leader of the Sikh Dharma faith alleging they are being frozen out of board positions in two nonprofit Sikh Dharma entities. In rejecting application of the ministerial exception doctrine, the court said in part:

[T]he pleadings do not allege the board members have any ecclesiastical duties or privileges. In assessing the responsibilities attendant to the board positions, it is relevant that the entities involved are not themselves churches, but rather corporate parents of a church. SSSC’s primary responsibility appears to be holding title to church property, and UI, in addition to being ... the direct corporate parent of the Sikh Dharma church – owns and controls a portfolio of for-profit and nonprofit corporations, including a major security contractor and a prominent tea manufacturer. Although the complaint alleges the board members have “fiduciary duties to UI and SSSC to hold assets in trust for the benefit of the Sikh Dharma community,” it is not clear on the face of the complaint that these duties are “religious” or “reflect[] a role in conveying the Church’s message and carrying out its mission.”

Turning to the ecclesiastical abstention doctrine, the court said:

Nothing in the character of th[e] defense will require a jury to evaluate religious doctrine or the ‘reasonableness’ of the religious practices followed . . . Under these circumstances, the availability of the neutral-principles approach obviates the need for ecclesiastical abstention.

Obama Sends Christmas Greetings To Orthodox Christians

January 7 is Christmas in the Orthodox Christian calendar. Yesterday President Obama issued a statement (full text) wishing Orthodox Christians a joyful holiday. The statement said in part:

As worship services take place in churches across the nation and around the world, we reaffirm our commitment to protect the universal and inalienable right of all people to practice their faith and stand in solidarity with communities and congregations that have been persecuted and subjected to violent attacks.

Catholic Hospital Sued Over Refusal Of Sex Reassignment Surgery

Lambda Legal announced yesterday that it has filed a lawsuit in New Jersey federal district court against a Catholic hospital that refused, on religious grounds, to allow a surgeon to perform a hysterectomy on a transgender man as part of his gender reassignment.  The complaint (full text) in Conforti v. St. Joseph's Healthcare System, (D NJ, file 1/5/2017), contends that the refusal discriminates on the basis of sex and gender identity in violation of the New Jersey Law Against Discrimination, and that it constitutes discrimination on the basis of sex in violation of Sec. 1557 of the Affordable Care Act.  According to AP, the hospital says it makes decisions in conformance with ethical and religious guidelines of the U.S. Conference of Catholic Bishops.

Federal Employee Fired For Conducting Baptism Must Rely On Title VII, Not 1st Amendment

In Holly v. Jewell, (ND CA, Jan. 3, 2017), a California federal magistrate judge dismissed a 1st Amendment religious discrimination claim by a former maintenance worker at the San Francisco Maritime National Historic Park. Plaintiff Roger Holly, an African American Baptist Minister who was employed by the Park was fired because, while on break out of uniform, he performed a baptism on the seashore adjoining the Park.  The court held that Title VII provides the sole remedy for discrimination in federal employment, and "Plaintiff has not asserted a First Amendment violation that is distinct from his claim that he suffered employment discrimination and retaliation based on his religion."

4th Circuit Upholds City Policy Requiring Civil Marriage Certificate To Get Spousal Health Care

In Abdus-Shahid v. Mayor & City Council of Baltimore, (4th Cir., Jan. 4, 2017), the U.S. 4th Circuit Court of Appeals upheld Baltimore's policy of requiring city employees to submit proof of their recorded civil marriage certificate to establish a spouse as eligible for health insurance coverage. Plaintiff, a civil engineer employed by the city's Department of Transportation married his wife in an Islamic religious ceremony. They did not obtain a civil marriage license, claiming that to do so would be contrary to their religious beliefs.  The court rejected plaintiff's 1st Amendment free exercise claim, as well as his state constitutional and Title VII claims.

State Sends Religious Publication To Families of Auto Accident Victims

The American Humanist Association in a press release yesterday called attention to an unusual state government practice of disseminating a religious publication. The South Carolina Department of Public Safety sends to families of individuals killed in auto accidents a book titled "A Time To Grieve."  The book is published by a Christian ministry, and contains numerous Bible passages and religious messages offering religious comfort to those who have lost a loved one.  In a letter to the Department of Public Safety, the Appignani Humanist Legal Center sets out at length its Establishment Clause objections to the Department's practice.

UPDATE: As reported by The State (Jan.5), in response to the complaint, the Department of Public Safety has decided to stop the distribution, saying:

We regret that any family member would have misunderstood our intentions or was offended by our effort to offer compassion during such a difficult time. Since this concern was brought to our attention, we have re-evaluated the 'A Time to Grieve' and will no longer send those particular pieces of literature to families following the death of a loved one in a motor-vehicle collision.

Army Grants Greater Dress and Grooming Accommodation For Sikhs and Muslims

The Army yesterday issued Directive 2017-03 revising Army uniform and grooming standards to allow greater religious accommodation, particularly for Sikh and Muslim members of the Army. The new directive allows religious accommodation to be granted at the brigade level to Sikhs to wear a turban or under-turban/patka, with uncut beard and uncut hair.  For Muslims, brigade-level approval is allowed for hijabs. The Directive allows a similar religious accommodation for beards, which would affect Muslims, Orthodox Jews, and perhaps soldiers of other religious faiths.  Certain exceptions apply, particularly in relation to those who need to wear protective masks. Also, without the need for granting of a religious accommodation, the Directive allows women to wear dreadlocks and individuals to wear certain religious bracelets. The Atlantic reports on the new Directive.

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.