Suit Says City Misled Public About Scope of Ordinance Adding LGBT Protections

Liberty Counsel announced yesterday that it has filed a lawsuit challenging the validity of recent amendments to the Jacksonville, Florida Human Rights Ordinance.  The complaint (full text) in Parsons v. City of Jacksonville, Florida, (FL Cir. Ct., filed 3/1/2017), alleges that amendments adding "sexual orientation" and "gender identity" to the "protected categories" in the Jacksonville's existing nondiscrimination laws were improperly adopted.  Florida state law provides:

No ordinance shall be revised or amended by reference to its title only. Ordinances to revise or amend shall set out in full the revised or amended act or section or subsection or paragraph of a section or subsection.

The new lawsuit contends that the amendments to the Human Rights Ordinance failed to set out the provisions that were being amended, and charges that "the violations result from the intentional omission of plain and obvious legal requirements, by the ordinance authors and sponsors, to deceive the Jacksonville public, City Council, and Mayor as to the true contents and scope of the HRO."

Suit Over Priest's Breach of Confessional Secrecy Is Dismissed

In Sonnier v. Roman Catholic Diocese of Lafayette, 2017 U.S. Dist. LEXIS 26498 (WD LA, Feb. 23, 2017), a Louisiana federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 27235, Jan. 18. 2017) and dismissed an action alleging invasion of privacy and defamation brought by a member of a Catholic church who claimed that a priest violated his 1st Amendment rights by disclosing plaintiff's use of the confessional to communicate with individuals involved in a civil litigation matter. The court concluded that the 1st Amendment does not apply because no state actor was involved in the conduct.  The court went on to hold that in addition:

Plaintiff's claims fall within the scope of internal religious affairs as they are predicated on: (1) the breach of the sacramental seal of confession, as defined by the Roman Catholic Church; and (2) Bishop Jarrell's failure to remedy the breach in accordance with church doctrine. In order to discern whether Plaintiff has asserted meritorious claims against Defendants, the Court would have to interpret church doctrine relating to the sacrament of confession and otherwise encroach upon the internal affairs of the Roman Catholic Church. Application of long-standing First Amendment jurisprudence, therefore, mandates that this Court refrain from considering Plaintiff's claims.

6th Circuit Grants En Banc Review In Legislative Prayer Case

The U.S. 6th Circuit Court of Appeals on Feb. 27 granted en banc review in Bormuth v. County of Jackson.  In the case, a 3-judge panel in a 2-1 decision held that the manner in which the Jackson County, Michigan Board of Commissioners opens its meetings with prayer violates the Establishment Clause.  AP reports on the grant of review by the full court which has the effect of vacating the panel decision while review is pending. [Thanks to Tom Rutledge for the lead.]

Supreme Court Clerk Chastises Amici For Wording In Brief On Transgender Rights

Over three dozen amicus briefs have been filed with the U.S. Supreme Court in Gloucester County School Board v. G.G.  At issue is whether Title IX requires schools to allow transgender students to use bathrooms consistent with their gender identity.  Slate reports that letters dated Feb. 24 from the Clerk of the Supreme Court (full text 1, 2) to two amici supporting petitioners have chastised them for referring to the transgender male student involved as "her."  The Clerk wrote Liberty Counsel and Center for Constitutional Jurisprudence saying:

... the covers of your amicus briefs in this case identify the respondent as “G.G., by her next friend and mother, Deirdre Grimm.” In fact, the caption for the case in this Court, as in the lower courts, identifies the respondent as “G.G., by his Next Friend and Mother, Deirdre Grimm.”  (Emphasis added.) Under Rule 34, your cover is to reflect the caption of the case. Please ensure careful compliance with this requirement in this and other cases in the future.

Pakistan Supreme Court Takes Action Against Fraudulent Hajj Tour Operators

In Hussain v. State, (Pakistan Sup. Ct., Feb. 27, 2017), the Supreme Court of Pakistan denied bail to defendants charged with defrauding a large number of Muslims seeking to perform Hajj by creating a fake travel agency that absconded with their travel funds. The Court explained:

This nature of frauds have become so common that, every year, before the Hajj Season commences, innocent and rustic peoples are looted by various so called agencies including the unauthorized tour operators, of which judicial notice is required to be taken to curb the increasing menace of frauds practiced in religious and pious matters, therefore, Courts are required to treat these cases differently and such frauds must be brought to halt.

The Court strongly criticized government agencies for failing to enforce the law and "allow[ing] the fraudsters to commit such crimes with impunity." In an attempt to prevent such frauds in the future, the Court ordered the Ministry of Religious Affairs

to update its website in English, Urdu and all local languages, conveniently readable and understandable by the illiterate poor people, showing all the details about the duly approved Hajj & Umrah Tour Operators, warning the public at large that except those mentioned on the website, no other agency or Tour & Hajj Operator is authorized to make booking or collect money for sending people to perform Hajj or Umrah. At the same time, the said Ministry shall give wide publicity to such lists through electronic and print media and also through handbills/notifications in different languages....

The Court also ordered further disclosures to travelers and indemnity bonds by authorized Hajj tour operators.  Today's Express Tribune reports on the decision.

Catholic High School Loses Ministerial Exception Defense In Suit By Former Teacher

Monrovia Patch reports that a California state trial court has rejected the ministerial exception defense raised by a Glendora, California Catholic high school in a suit by a former teacher who was fired for marrying his same-sex partner shortly after the U.S. Supreme Court's Obergefell decision.  The court ruled that Kenneth Bencomo can move ahead with his wrongful termination, Labor Code and breach of contract claims against St. Lucy's Priority High School.  The court ruled that while the high school is a religious institution, Bencomo produced substantial evidence that that did not teach any religious classes.  He taught only studio art, dance, English and yearbook and magazine courses. The school did not require that religion be part of his classes, and he never led prayers or referenced Catholic doctrine.

Muslim Organization Gets Rulings In Its Favor In Zoning Challenge

In an opinion covering two suits-- one by a Sufi Muslim religious organization and the other by the United States--, an Illinois federal district court concluded that the city of Des Plaines, Illinois may well have violated RLUIPA and the 1st and 14th Amendments, as well as state law, in denying a zoning amendment that would allow the Muslim group to use property it had purchased for religious and educational purposes.  In Society of American Bosnians and Herzegovinians v. City of DesPlaines, (ND IL, Feb. 26, 2017), the court denied summary judgment to both sides, but concluded that a reasonable fact finder could infer that the City imposed a substantial burden on the religious organization's free exercise of religion and that the city's parking concerns did not constitute a compelling interest. The court also concluded that the city violated RLUIPA's equal terms provision, and that there is a genuine dispute on whether the city acted with discriminatory intent. Cook County Record reports on the decision.

Cert. Denied In Church Retirement Plan Fiduciary Duty Case

The U.S. Supreme Court today denied review in Evangelical Lutheran Church v. Bacon (Docket No. 16-910, cert. denied 2/27/2017). (Order List.)  In the case, a Minnesota state court of appeals held that the First Amendment does not prevent a civil court from adjudicating a challenge to the manner in which the Lutheran Church retirement plans were managed. Plan participants claimed breach of fiduciary duty, breach of trust, and fraud and concealment in the administration and management of the Plans. (See prior posting.)

Canada's Supreme Court Will Review Two Trinity Western Law School Cases

On Feb. 23, the Supreme Court of Canada agreed to hear appeals in Trinity Western University v. Law Society of Upper Canada (Ontario) (summary of case) and Law Society of British Columbia v. Trinity Western University, et. al. (British Columbia) (summary of case). At issue is the question of whether the Law Societies in various provinces can refuse to accredit Trinity Western University Law School because of its code of conduct based on evangelical Christian teachings.  In particular, the law school refuses to recognize same-sex marriages and requires students to sign its Community Covenant that, among other things, prohibits sexual intimacy outside of a marriage between one man and one woman. TaxProf Blog has more on the Supreme Court's action. [Thanks to Steven H. Sholk for the lead.]

Kashmir Court Employees Must Offer Regular Prayers At Proper Time To Get Raises

According to WIO News, the new Chief Justice of the Supreme Court of Pakistan-Occupied-Kashmir has told court employees that their annual salary increases will turn on their offering prayers regularly and at the prescribed times. Ibrahim Zia, who was sworn in Saturday as Chief Justice, instructed that offering prayers is now mandatory for all court employees.  He also told employees they must work with dedication, honesty and regularity to ensure speedy justice to the public.

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.