Recent Articles of Interest

From SSRN:

• Satvinder Juss, Back to the Future: Justiciability, Religion, and the Figment of 'Judicial No-Man's Land', (Public Law Issue 2, April 2016, pp. 198-206).
• John D. Inazu, Law, Religion, and the Purpose of the University, (Washington University Law Review, Forthcoming).
• Giulia Capacci, In Vitro Fertilization, the Catholic Church and National Survival: The Discursive Construction of Reproductive Rights in Poland, (February 3, 2017).
• Barbara P. Billauer, The Secrets of Jethro - Father of Jurisprudence, Patriarch of the Druze, Unifier of Legal Systems, (February 21, 2017).
• Thomas J. McSweeney, Salvation by Statute: Magna Carta, Legislation, and the King's Soul, (William & Mary Bill of Rights, Vol. 25, No. 2, 2016).

From SmartCILP:

• Deepa Das Acevedo, Temples, Courts, and Dynamic Equilibrium in the Indian Constitution, 64 American Journal of Comparative Law 555-581 (2016).
• Shlomo Pill, Jewish Law Antecedents to American Constitutional Thought, [Abstract], 85 Mississippi Law Journal 643-696 (2016).
• Lua Kamal Yuille, Creating a Babel Fish for Rights & Religion: Defining 'Rights' Through Sacred Texts, [Abstract], 25 Transnational Law & Contemporary Problems 309-361 (2016).
• Nelson Tebbe. McElroy Lecture. How To Think About Religious Freedom In an Egalitarian Age, [Abstract], 3 University of Detroit Mercy Law Review 353-367 (2016).
• Symposium: Global Legal and Religious Perspectives on Elder Care. Introduction by Amy Zeittlow and Naomi Cahn; articles by Israel (Issi) Doron, Charles Foster, M. Christian Green, Nancy J. Knauer, Thomas G. Long, Rabbi Edith M. Meyerson, Diane E. Meier, Allison Kestenbaum, Rahimjon Abdugafurov, Beverly Moran and Xing Guang. 31 Journal of Law & Religion 115-226 (2016). 

Recent Prisoner Free Exercise Cases

In Heyer v. U.S. Bureau of  Prisons, (4th Cir., Feb. 23, 2017), the U.S. 4th Circuit Court of Appeals allowed a deaf inmate to move ahead with his claim that his free exercise rights were infringed by failure to provide him a sign-language interpreter for religious services.

In Crowder v. Lariva, 2017 U.S. Dist. LEXIS 23687 (SD IN, Feb. 21, 2017), an Indiana federal district court held that a prison chaplain who was sued by a Hebrew-Israelite inmate demonstrated that there is a genuine dispute of fact as to whether the denial of plaintiff's requests for a kosher diet substantially burdened his right to practice his religion because he continued to purchase non-kosher items from the commissary.

In Pruitt v. Williams, 2017 U.S. Dist. LEXIS 25044 (ED AR, Feb. 23, 2017), an Arkansas federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 25468, Feb. 2, 2017) and dismissed an inmate's complaint that as a form of punishment he was denied the right to practice his religion.

In Ali v. Haese, 2017 U.S. Dist. LEXIS 25431 (ED WI, Feb. 23, 2017), a Wisconsin federal district court allowed an inmate to proceed on his claim that he was denied participation in the 2016 Ramadan fast, but not due process and retaliation claims added in his amended complaint.

The FBI and Religion Is Studied

Salon today has posted an interesting article titled How the FBI Is Hobbled by Religious Illiteracy.  Much of it is an interview with University of Pennsylvania Prof. Steven Weitzman.  Introducing the interview, interviewer Emma Green says in part:

The story of the FBI and religion is not a series of isolated mishaps, argues a new book of essays edited by Steven Weitzman, a professor at the University of Pennsylvania, and Sylvester A. Johnson, a professor at Northwestern University. Over its 109 years of existence, these historians and their colleagues argue, the Bureau has shaped American religious history through targeted investigations and religiously tinged rhetoric about national security.

At times, the Bureau has operated according to an explicit vision of protecting Christianity, as it did during the tenure of J. Edgar Hoover, the longtime director of the FBI. But in other cases, it has operated with religious ignorance.

Handling of Vaccination Exemption Request Did Not Violate Religious Rights

In Nikolao v. Lyon, (ED MI, Feb. 23, 2017), a Michigan federal district court dismissed free exercise and establishment clause challenges to the manner in which the Wayne County, Michigan Health Department handled a mother's request for an exemption for her children from the public school vaccination requirement.  Michigan law permits an exemption on the basis of a parent's religious convictions or alternatively on the basis other objections to  immunization. A 2014 Administrative Rule added the requirement that before an exemption will be granted, the parent must receive education  from the local health department on the risks of not receiving vaccinations.  The health department has prepared materials for its employees to use in attempting to persuade parents to allow vaccination, including materials to counter religious objections.

Plaintiff claims that if she wanted a religious waiver, she was required to explain her religious beliefs and discuss them with a health department nurse.  When she refused, she was granted an exemption on the non-religious ground that "mom wants child to have natural immunity."  Plaintiff contended that this deprived her of her religious and moral responsibility to object on account of her religion. Rejecting plaintiff's free exercise claim, the court said:

At most what Plaintiff alleges is that she was exposed to “coercion” to violate her beliefs regarding immunization for her children and “filled with lies about her faith from health department employees.” Plaintiff, however, did not yield to the nurses’ alleged pressure or lies and agree to immunize her children. She left the health department with the required and completed immunization waiver forms.

No Religious Discrimination In Suspension of Minister's Gym Membership

In Armstrong v. James Madison University, 2017 U.S. Dist. LEXIS 25014 (WD VA, Feb. 23, 2017), a Virginia federal magistrate judge recommended dismissing claims of religious discrimination and infringement of free exercise rights brought by Matthew Armstrong, a 65-year old Christian minister, after his alumnus membership in James Madison University Recreation gym was suspended. The suspension followed a complaint filed by a female student employee of the gym who claimed that comments made to her by Armstrong amounted to sexual harassment. Armstrong had told the student about his religious beliefs that allowed him to have a young wife, and asked her if she would be interested in getting to know him better with the eventual possibility of marriage.

Arkansas Supreme Court Invalidates City's LGBT Anti-Discrimination Law

In Protect Fayetteville v. City of Fayetteville, (AR Sup. Ct., Feb. 23, 2017), the Arkansas Supreme Court held that the City of Fayetteville is precluded by state statute from extending its anti-discrimination provisions to protect lesbian, gay, bisexual and transgender individuals. The Arkansas' Intrastate Commerce Improvement Act provides:

A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.

Fayetteville claimed that its expanded non-discrimination law is permitted because state laws on bullying, domestic abuse shelters and amendment of birth certificates include reference to sexual orientation and gender identity. The Court held, however, that municipalities are precluded from providing non-discrimination protection to categories beyond race, religion, national origin, gender and disability that are included in the Arkansas Civil Rights Act of 1993.  Arkansas Matters reports on the decision.

Oklahoma Supreme Court Says Church Autonomy Shields Suit Over Publicity of Baptism

In a 5-3 decision in Doe v. First Presbyterian Church USA of Tulsa, (OK Sup. Ct., Feb. 22, 2017), the Oklahoma Supreme Court ruled that the church autonomy doctrine requires dismissal of a suit by a Muslim convert to Christianity challenging the church's online publicity of his baptism. Plaintiff traveled to Syria after the baptism where he allegedly was kidnapped and tortured by radical Muslims who threatened to carry out a death sentence for apostasy.  The majority framed the issue as one of whether publication of the baptism on the internet is an act rooted in religious belief so that it falls within the church's ecclesiastical jurisdiction.  The majority concluded:

The context of the online posting of Appellant's baptism is not secular. Appellant's tort claims all rest on an act that, per church doctrine, is an integral part of what the church considers to be the public nature of the sacrament. Because Appellant's tort claims arise from the performance of his baptism, this dispute is one over ecclesiastical rule, custom or law, and is not purely secular.....

Justices Gurich and Kauger disagreed, saying in part:

The present case does not involve a question of discipline, faith, or ecclesiastical rule decided by a church tribunal, nor does it involve an internal, administrative matter. It merely involves the Church's publication of Appellant's name on the internet. No judicial body in the Church rendered any decision that Appellant is now trying to relitigate in civil court, and ... the autonomy of an internal Church disciplinary process is not threatened. Moreover [this suit] ... satisfies an exception to the church autonomy doctrine [for serious threats to public safety, peace or order].

AP reports on the decision. (See prior related posting.)

Belgian Court Rules Kosher Slaughter Is Protected Religious Right

Jerusalem Post reported yesterday that a court in Belgium has ruled that restricting kosher slaughtering of animals "excessively and unreasonably restricts freedom of religion and seriously harms the fundamental laws of human rights and religious rights in Belgium."  The Conference of European Rabbis announced yesterday that the constitutional court of Belgium’s southern Wallonia region handed down the ruling after several legislators in the parliament of Wallonia introduced legislation to subject kosher slaughtering to the general requirement of Belgian law that animals be stunned before slaughter. [Thanks to Steven H. Sholk for the lead.]

NJ Tax Court Says Church Had Not Stopped Using Area For Religious Purposes

In Holy Trinity Baptist Church v. City of Trenton Block 26802, Lot 4, (NJ Tax Ct., Feb. 7, 2017), the New Jersey Tax Court held that the County Board of Taxation was wrong in concluding the the second floor of a church building was no longer being used for religious or charitable purposes. The court said in part:

the evidence as a whole shows that the second floor was being used for the Church's youth and member meetings albeit on a declining level due to the plaintiff's acquisition of another property. The declining frequency of such events or the undisputed fact that the Subject was being offered for sale, and the second floor was being prepared for such sale, do not establish non-use or abandonment of use of the second floor for plaintiff's tax exempt purposes.

JD Supra Business Advisor has analysis of the decision.

Settlements In Mosque's and DOJ's Suits Against Michigan City

Detroit Free Press reported yesterday that settlements have been reached in two related lawsuits against the city of Sterling Heights, Michigan over the city's denial of Special Approval Land Use application that would have allowed the American Islamic Community Center to construct a mosque on five adjoining lots in the city. One suit was brought by the Islamic Center, while the other was filed by the Department of Justice. (See prior posting.)  The settlement requires the city to allow the mosque to be built, but calls for the height of the mosque's dome and spires to be reduced by approximately two feet. No amplified outdoor sound-- including the Muslim call for prayer-- will be permitted.  Parking will be allowed only in the mosque's parking lot.  The financial arrangements in the Islamic Center's suit are unclear.  The settlement calls for the city to pay a $350,000 deductible to its insurance carrier. A Department of Justice press release yesterday says that the settlement also calls for the city to publicize its nondiscrimination policies, undergo RLUIPA training, and report periodically to the Department of Justice. The settlements must still be approved by the court.

Trump Administration Withdraws Obama Title IX Transgender Guidance

Today the Trump Administration withdrew the controversial Obama Administration's Guidance on rights of transgender students under Title IX. In a Joint Letter (full text) from the Department of Justice and Department of Education, the Trump Administration formally took no position on whether Title IX protects transgender students.  The Letter reads in part:

These [Obama Administration] guidance documents take the position that the prohibitions on discrimination “on the basis of sex” in Title IX ... and its implementing regulations ... require access to sex-segregated facilities based on gender identity. These guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.

This interpretation has given rise to significant litigation regarding school restrooms and locker rooms....

In addition, the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.

In these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them.

The Solicitor General's Office also sent a letter (full text) to the Supreme Court notifying it of the Guidance withdrawal.  Oral argument is scheduled March 28 in the Gloucester County School Board case involving the Obama Administration's interpretation of Title IX.  The Supreme Court specifically granted certiorari on two issues (see prior posting), only one of which would appear to be mooted by yesterday's action.  The two issues are:

... [S]hould deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?

... With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?

The New York Times reports that Education Secretary Betsy DeVos had opposed withdrawal of the Guidance that protected transgender students, but that the President sided with Attorney General Sessions.  The new Joint Letter does contain a paragraph expressing concern for student rights:

Please note that this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment. The Department of Education Office for Civil Rights will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms. The Department of Education and the Department of Justice are committed to the application of Title IX and other federal laws to ensure such protection.

Both Attorney General Sessions and Secretary DeVos issued separate statements as well.  Sessions' statement (full text) reads in part:

The Department of Justice remains committed to the proper interpretation and enforcement of Title IX and to its protections for all students, including LGBTQ students, from discrimination, bullying, and harassment.

DeVos' statement (full text) reads in part:

I have dedicated my career to advocating for and fighting on behalf of students, and as Secretary of Education, I consider protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America.

Today's Joint Letter only refers to the interpretation of Title IX.  It is unclear how this will affect the similar interpretation of Title VII of the 1964 Civil Rights Act.  The EEOC has interpreted the reference to sex discrimination in Title VII to protect transgender employees. Indeed, a December 15, 2014 Memorandum (full text) from Attorney General Holder to U.S. Attorneys takes the same position on Title VII.

French Presidential Candidate Le Pen Refuses To Wear Headscarf To Meet With Lebanese Grand Mufti

In French presidential elections, far-right National Front party leader Marine Le Pen leads in the polls for the April 23 first round, as national security has become the leading concern of voters. As of now, polls show Le Pen losing in the May runoff.  (AlJazeera, Bloomberg)  Le Pen has just completed a three-day trip to Lebanon where she attracted news attention when she refused to wear a headscarf for a meeting with the country's highest Sunni cleric.  According to an AP report:

The headscarf incident occurred ahead of a scheduled meeting with Lebanon's grand mufti, Sheikh Abdel-Latif Derian.

Shortly after Le Pen arrived at his office, one of his aides handed her a white headscarf to put on. Following a discussion with his aides that lasted a few minutes, she refused and returned to her car.

Le Pen told reporters:  "I consider the headscarf a symbol of a woman's submission. I will not put on the veil."

British Appeals Court Refuses To Extend Civil Partnerships To Heterosexual Couples

In Steinfeld & Keidan v Secretary of State for Education, (EWCA, Feb. 21, 2017), Britain's Court of Appeal, in a 2-1 decision, rejected a challenge to British law that allows same-sex couples, but not opposite-sex couples, to enter civil partnerships as an alternative to marriage.  The differential treatment was challenged as a violation of the European Convention on Human Rights prohibition on discrimination (Article 14) and right to respect for private and family life (Article 8). As explained in the Court's Summary of the decision, all of the judges agreed that the ban on civil partnerships for opposite-sex couples creates a potential violation of Articles 14 and 8.  However two of the three judges concluded that the limitation is permissible because it is in pursuit of a legitimate aim and is proportionate.  The Secretary of State is taking further time to assess whether, since the introduction of same-sex marriage, civil partnership should be phased out or should instead be extended to opposite-sex couples. CNN reports on the decision.

In Settlement, School Will Remove Ten Commandments Monument

The Freedom From Religion Foundation announced yesterday that it has reached a successful settlement with a Pennsylvania school district in FFRF's suit seeking removal of a 6-foot tall Ten Commandments monument from a high school's lawn. The settlement agreement (full text) in Freedom From Religion Foundation, Inc. v. New Kensington Arnold School District provides that the school district will remove the monument within 30 days of the effective date of the settlement agreement.  The school district's insurance company will also pay plaintiffs' attorneys fees and costs of $163,500.  The suit, originally filed in 2012, went to the 3rd Circuit last year which upheld standing of at least some of the plaintiffs to bring the lawsuit. (See prior posting.)

Administrative Law Judge Sues Over Requirement To Watch LGBT Diversity Training Video

According to yesterday's Houston Press, a Social Security Administrative Law Judge has filed a federal court lawsuit claiming religious discrimination after the agency refused to accede to his religious objections to viewing a 17-minute LGBT diversity training video.  In the lawsuit, ALJ Gary Suttles claims that the refusal by the Houston office's chief administrative law judge to grant him a religious accommodation and her insistence that he watch or read a transcript of the video created a hostile work environment.

Amish Drop Suit Against City Over Animal Waste Requirements

Bowling Green (KY) Daily News reported yesterday that two members of the Swartzentruber Amish community who had sued Auburn, Kentucky officials over an animal waste ordinance requiring horses to wear animal waste catching devices have now voluntarily dismissed their lawsuit. The sect's elders had ruled that it violates religious principles to comply with the requirement. (See prior posting.) Even though efforts to reach a compromise in the suit failed, plaintiffs dismissed their suit because of their discomfort with the publicity they were receiving.

Trump Responds To Anti-Semitic Incidents In U.S.

President Trump today in remarks (full text) after touring the National Museum of African American History and Culture gave his most explicit denunciation of the increasing number of anti-Semitic incidents in the U.S. in recent weeks.  He said:

This tour was a meaningful reminder of why we have to fight bigotry, intolerance and hatred in all of its very ugly forms.  The anti-Semitic threats targeting our Jewish community and community centers are horrible and are painful, and a very sad reminder of the work that still must be done to root out hate and prejudice and evil.

As reported by CNN, Trump's remarks come after 54 Jewish Community Centers in the U.S. and Canada have received 69 bomb threats. Also today, it was disclosed that more than 100 headstones at a Jewish cemetery near St. Louis were recently damaged or toppled. (CNN). The President has been criticized for his less than direct responses in two previous news conferences to questions about anti-Semitism. (e.g. Baltimore Sun editorial). Responding to the President's statement, American Jewish Committee tweeted: "Now we look forward to your plan of action."

Illinois Conversion Therapy Ban Does Not Apply To Religious Pastoral Counseling

In Pastors Protecting Youth v. Madigan, (ND IL, Feb. 15, 2017), an Illinois federal district court held that Illinois' Youth Mental Health Protection Act restricting conversion therapy does not apply to religious pastoral counseling.  The Act bars mental health providers from offering conversion therapy to minors, and prohibits anyone from deceptively offering conversion therapy in trade or commerce. The court concluded that private religious counseling is not "trade or commerce". The Act was intended to apply only to mental health professionals or to those who deceptively advertise conversion therapy for commercial purposes. Christian News reports on the decision.

Texas High School Rules Force Transgender Male Wrestler To Compete In Girl's League

In Texas, high school athletics is governed by the University Interscholastic League (UIL). Rules of the UIL require student-athletes to compete as the gender listed on their birth certificate.  Another rule specifically prohibits boys from wrestling girls. AP reported this week on Mack Beggs, a transgender high schooler who is transitioning from female to male who, under these rules, is required to compete as a female. Beggs won the high school regional wrestling competition after her opponent forfeited rather than wrestle Beggs. Beggs is taking testosterone as part of her transitioning. Earlier this month, the parent of another wrestler filed a lawsuit against the UIL seeking to have Beggs disqualified for using steroids, saying that allowing Beggs to wrestle girls creates a risk of bodily harm.  The Texas Education Code allows steroid use when administered by a medical practitioner for a valid medical purpose.

Bob Jones University To Regain Tax Exempt Status

The State reported last week that Bob Jones University, will regain its tax exempt status on March 1, nearly 34 years after the U.S. Supreme Court decision that upheld stripping it of the exempt status.  The revocation stemmed from the University's policy, which at the time it claimed was Biblically-based, to deny admission to applicants engaged in an interracial marriage or known to advocate interracial marriage or dating.  The conservative Christian university dropped its interracial dating policy in 2000, but did not take steps to begin to regain full tax exempt status until 2014. It had previously created certain non-profit arms, such as its scholarship fund.  But now a reorganization will place most of the university's facilities under the umbrella of its existing BJU, Inc. (formerly Bob Jones elementary School, Inc.).  Some assets however will remain in a for-profit entity.  This reorganization did not require formal IRS approval, but the University has had formal correspondence and conversations with IRS about the reorganization.  One of the benefits of the reorganization will be that the University will move from a for-profit to a non-profit college as the Department of Education is giving added oversight to for-profit institutions. [Thanks to Scott Mange for the lead.]