Cert. Petition Filed In California Repairative Therapy Ban

A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Welch v. Brown, cert. filed 1/3/2017).  In the case, the 9th Circuit rejected facial free exercise and Establishment Clause challenges to California's ban on state-licensed mental health professionals providing "sexual orientation change efforts" for patients under 18. (See prior posting.) Pacific Justice Institute issued a press release announcing the filing of the petition for review.

Kentucky Enacts New Abortion Restrictions; Suit Filed Challenging Required Disclosures

In Kentucky yesterday, Gov. Matt Bevin signed into law H.B. 2 (full text), which, as described by CNN:

requires a physician or technician to perform an ultrasound, describe and display the ultrasound images to the mother, and provide audio of the fetal heartbeat to the mother before she may have an abortion. The text of the bill says the pregnant woman may choose to avert her eyes from the images, and request the volume of the heartbeat be turned down or off.

The law frames required disclosures in terms of providing information about the "unborn child."

The state's sole licensed abortion provider and three physicians immediately filed suit challenging the constitutionality of the law.  The complaint (full text) in EMW Women's Surgical Center, P.S.C. v. Beshear (WD KY, filed 1/9/2017), contends that the law violates rights of both physicians and patients. An ACLU press release announced the filing of the lawsuit.

The Governor also signed S.B. 5 which prohibits abortions after 20 weeks of pregnancy, with limited exceptions. Both H.B. 2 and S.B. 5 took effect immediately on signing. [Thanks to Tom Rutledge and Scott Mange for the leads.]

Cert. Denied In Buddhist Temple Dispute

The U.S. Supreme Court yesterday denied review in Tung v. China Buddhist Association, (Docket No. 16-450, cert. denied 1/9/2017). (Order List).  In the case, a New York state intermediate appellate court refused to order a Buddhist Temple to hold a membership meeting with a receiver determining those eligible to vote, holding that courts will not intervene in predominantly religious disputes. New York's highest court (Court of Appeals) affirmed in a summary decision. (See prior posting.) [Thanks to Mark Chopko for the lead.]

Claim For Interference With Inheritance Lies Against Legion of Christ

In Americans United For Life v. Legion of Christ of North America, Inc., (RI Super., Jan. 4, 2017), a Rhode Island trial court held that a claim of tortious interference with expectation of inheritance is cognizable under Rhode Island law.  At issue is a claim by an anti-abortion organization that Legion of Christ through fraud and undue influence induced Gabrielle Mee, a devout Catholic, to change her will to divert to Legion of Christ the 10% of her estate (equaling as much as $6 million) originally left to the pro-life group.  Her will already left 90% to Legion of Christ, and plaintiffs claim that had Ms. Mee learned of the charges of sexual abuse that surfaced as to Father Marcial Maciel Delgollado, the founder and former leader of Legion of Christ, she might well have completely cut them out of her will.  While allowing the tortious interference claim to move ahead, the court dismissed separate claims based on fraud and undue influence. AP reports on the decision. (See prior related posting.)

Problems In NY Town Experiencing Explosive Growth of Hasidic Jewish Community

Yesterday's Lower Hudson Journal News carried a very long investigative report titled Ramapo Nears Breaking Point, documenting the dislocations and conflict created by "chaotic, high-density sprawl" in a Rockland County, New York town that has seen explosive growth of its ultra-Orthodox, primarily Hasidic, Jewish community.  Here are a few excerpts from the report on the town of Ramapo:

While unprecedented population growth and a clash of cultures — complete with accusations of favoritism, anti-Semitism, racism and corruption — are symptoms of the changes, the Ramapo story is really one of loose zoning, lax enforcement of fire and building codes, and largely unchecked, out-of-control development....

Often, unchecked expansion is marked by dubious construction methods and materials, such as housing additions made of plywood. Extensions and even new structures are frequently built toward the back of lots, with no street access for emergency vehicles or municipal records of what’s actually there....

Rockland County had the state's highest population percentage increase in 2014.... While demand for housing keeps developers busy — and property values high — the town’s tax base has been eroded by an ever-growing number of tax-exempt yeshivas and synagogues, among other factors.....

The fast and loose nature of Ramapo development receives tacit approval from local officials who critics say rubber-stamp permits and ignore code enforcement. Often, those officials receive campaign contributions from developers.

Surrounding communities in Rockland County are taking legal steps to control development in order to avoid becoming "the next Ramapo."

Recent Articles and Books of Interest

From SSRN:

• Neil James Foster, Protection of Religious Free Speech in Australia, (Australian Christian Lawyers Conference 2016 - Freedom of Religious Speech).
• Helge Årsheim, Secularist Suspicion and Legal Pluralism at the United Nations, (Religion and Human Rights 11(2): 166-188, 2016).
• Bernard Jackson, Law and Narrative in the Book of Ruth: A Syntagmatic Reading, (August 8, 2016).
• Helge Årsheim, Internal Affairs? Assessing NGO Engagement for Religious Freedom at the United Nations and Beyond, (Anne Stensvold (ed.): Religion, State and the United Nations – Value Politics. London: Routledge, pp. 79-94, 2016).
• Suzanne A. Kim & Katherine A. Thurman, Social Rites of Marriage, (Georgetown Journal of Gender and the Law, Vol. 17, No. 745, 2016).

Recent and Forthcoming Books:

• Daniel L. Dreisbach, Reading the Bible with the Founding Fathers, (Oxford Univ. Press, Dec. 2016).
• Mark Juergensmeyer, Margo Kitts, & Michael Jerryson (eds.), Violence and the World's Religious Traditions, (Oxford Univ. Press, Dec. 2016).
• Kent Greenawalt, When Free Exercise and Nonestablishment Conflict, (Harvard Univ. Press,  May 2017).
• Christopher Lane, Surge of Piety: Norman Vincent Peale and the Remaking of American Religious Life, (Yale Univ. Press, Nov. 2016).

Sri Lankan Judge, Expert In Law and Religion, Dies at Age 90

Christopher Gregory Weeramantry, a distinguished lawyer who served as a judge on the Supreme Court of Sri Lanka and later as a judge on the International Court of Justice died on January 5, 2017 at the age of 90.  The President of the Muslim Council of Sri Lanka published this tribute which outlines Weeramantry's contributions to law and religion:

Judge Weeramantry was undoubtedly well versed in all the major religions and its laws. He successfully interpreted legal principles with the teachings of the major religions of the world- Islam, Christianity, Hinduism and Buddhism in his deliberations at the International Court of Justice. He has been considered a pioneer in bringing religious jurisprudence to the international court of justice.

His biggest contribution to the Muslim community was his book, ‘Islamic Jurisprudence, An International Perspective’....

Weeramantry was also known for having presided over a 1996 case on the International Court of Justice involving advisory opinions on the Legality of the Threat or Use of Nuclear Weapons in which he issued a dissenting opinion taking the position that the use or threat of use of nuclear weapons is illegal in all circumstances.

Recent Prisoner Free Exercise Cases

In Omran v. Prator, (5th Cir., Dec. 30, 2016), the 5th Circuit Court of Appeals affirmed dismissal of a suit by a Muslim inmate who was denied halal or kosher food.

In Quezada v. Cate, 2016 U.S. Dist. LEXIS 179982 (ED CA, Dec. 28, 2016), a California federal magistrate judge recommended that a House of Yahweh inmate be allowed to move forward only on his equal protection damage claim growing out of the suspension of his access to kosher meals.

In Vance v. Wright, 2017 U.S. Dist. LEXIS 82 (D SC, Jan. 3, 2017), a South Carolina federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 180700, Nov. 29, 2016) and dismissed an inmate's claim that he had been denied religious material.

In Hale v. Vannoy, 2017 U.S. Dist. LEXIS 1866 (MD LA, Jan. 4, 2017), a Louisiana federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 181299, Dec. 16, 2016), and dismissed a claim by an inmate who is a follower of the Nation of Gods and Earths that his request for a religious vegetarian diet was refused.

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.