N.J. Governor Conditionally Vetoes Total Ban On Marriage of Minors, Citing Religious Traditions

New Jersey Governor Chris Christie on May 11 vetoed Assembly Bill 3091 which would have placed an absolute ban on issuing of marriage or civil union licenses to persons under 18 years of age. His Conditional Veto message (full text) sent the bill back with recommendations for reconsideration.  the message said in part:

New Jersey law currently permits the issuance of these licenses to 16 and 17 year-olds with parental consent and to persons below age 16 with both parental consent and judicial approval....

I am recommending that this bill be amended so that a marriage license no longer be issued for a person under the age of 16.

I also would require judicial approval for the issuance of a marriage license to persons who are age 16 and 17....

An exclusion without exceptions would violate the cultures and traditions of some communities in New Jersey based on religious traditions. Judicial oversight would permit consideration of these factors in the 16 and 17 year old timeframe.

According to Politico, "almost 3,500 marriages involving at least one partner under 18 took place in New Jersey from 1995 to 2012. Of those, 163 involved at least one spouse 15 or younger. Most were religious arranged marriages."

Egyptian Muslim Cleric Accused of "Contempt of Religion"

In Egypt last Thursday, members of the Egyptian Parliament filed a lawsuit against Muslim cleric and former deputy minster in the Endowments Ministry, Salem Abdel Galil.  According to Egypt Daily News, the suit, and another one filed by different complainants, accuse Galil of contempt of religion and threatening national unity because of statements he made on May 3 during his television show "Muslims Ask."  In explaining a verse from the Qur'an, he said that Christians and Jews follow corrupt religions and are non-believers.  In a statement on his Facebook page, Galil apologized for "hurting Christians’ feelings," but said he would never apologize for his religion. Al-Mehwar TV has canceled Galil's contract, and Minister of Endowments Mokhtar Gomaa said that Galil would not be allowed to lead Friday prayers unless he retracted his comments.

Court Rejects Challenge To State's Use of Religiously Affiliated Child Placement Agency

In In re R.M., (KS Ct. App., May 12, 2017), the Kansas Court of Appeals rejected an argument that the state violated the Establishment Clause by contracting with  Saint Francis Community Services, an Episcopalian organization, to provide childcare services on behalf of the state.  The issue was raised by a mother who was contesting the state's termination of her parental rights to her two children.  The court said in part:

Mother has shown no evidence that Saint Francis encouraged, let alone coerced, her children into participating in religious activities or conditioned their receipt of any benefits on such participation. None of the case plans or court orders contains any reference to religious acts or beliefs or requires Mother or her children to do anything of a religious nature. Mother has not shown anything of a religious nature in the homes her children have been placed in.

Recent Articles of Interest

From SSRN:

• Madalyn Doucet Vicry, That Kind of Girl: Effects of Homeschooling on the Sexual Health of Women and Girls, (Georgetown Journal of Gender and the Law, Vol. 18, No. 103, 2017).
• Wojciech Sadurski, Judicial Review and Public Reason, (Comparative Judicial Review, Rosalind Dixon, Erin F. Delaney, eds, Edward Elgar, UK, 2017, Forthcoming).
• Caroline Mala Corbin, A Free Speech Tale of Two County Clerk Refusals, (Ohio State Law Journal, Forthcoming).
• Elaine Rene Elizabeth Panter, Tanya Primiani, Tazeen Hasan & Eduardo Calderon Pontaza, Antidiscrimination Law and Shared Prosperity: An Analysis of the Legal Framework of Six Economies and Their Impact on the Equality of Opportunities of Ethnic, Religious, and Sexual Minorities, (World Bank Policy Research Working Paper No. 7992 (March 3, 2017)).
• Robin Bradley Kar, Transformational Marriage: How to End the Culture Wars Over Same-Sex Marriage, (The Contested Place of Religion in Family Life (Cambridge University Press 2017)).
• Robin Elliot & Michael Elliot, 'Striking the Right Balance: Rethinking the Contest between Freedom of Religion and Equality Rights in Trinity Western University v. The Law Society of British Columbia', (Forthcoming in the University of British Columbia Law Review, (2017) Volume 50:3).
• Clifford Rosky, Still Not Equal: A Report from the Red States, (After Marriage Equality: The Future of LGBT Rights pgs. 73-101 (2016)).

SSRN (Islamic Law)

• Hae Won Bang, Production of Islamic Knowledge in the European Diaspora: A Case Study of Digital Texts from a British Muslim Halal Certifier, (May 30, 2016).
• Mmaphuti David Tuba, Lodhi 5 Properties Investments CC v Firstrand Bank Limited [2015] 3 All SA 32 (SCA) and the Enforcement of Islamic Banking Law in South Africa ,(Potchefstroom Electronic Law Journal, Vol. 20, 2017).

From SmartCILP:

• Symposium: Law and Religion in an Increasingly Polarized America. Articles by Kathleen A. Brady, Marc O. DeGirolami, Kent Greenawalt, B. Jesse Hill, Andrew Koppelman, Ronald J. Krotoszynski, Jr., Ira C. Lupu, Robert W. Tuttle, James M. Oleske, Jr. and Robin Fretwell Wilson. 20 Lewis & Clark Law Review 1093-1458 (2017).
• Allan W. Vestal, Regarding Oaths of Office, 37 Pace Law Review 292-325 (2016).

New Tennessee Law Requires Religious Holy Day Accommodation For School Athletics

On May 2 (bill history), Tennessee Governor Bill Haslam signed Senate Bill 1012, as amended, which gives students' religious observances priority over athletic schedules.  The new law provides:

A local education agency, local school board, school, educator, or employee or the employee's representative may not require a student to attend a school athletic event, or event related to participation on a school athletic team, if the event is on an official school holiday, observed day of worship, or religious holiday. The parent or legal guardian of a student participating in a school athletic event may provide written notice that the student will not be in attendance to the coach or administrator of the athletic event at least three (3) full school days prior to the event. Prior written notice to the coach or administrator of the school athletic event may not be required if the absence is due to an unforeseen emergency.

In comments published by Forbes after the bill's enactment, the sponsor of the parallel measure in the state House of Representatives appears to understate the mandatory excusal requirement of the law, saying:

What we're trying to do is bring awareness and realization to athletic programs that the school and administration have leeway when it comes to answering the needs of families. It provides a platform for discussion to take place.

Recent Prisoner Free Exercise Cases

In Jones v. Johnson, 2017 U.S. Dist. LEXIS 69634 (D CT, May 8, 2017), a Connecticut federal district court dismissed a Muslim inmate's complaint that he was denied congregate religious services while confined in the Administrative Segregation Program.

In Greenhill v. Clarke, 2017 U.S. Dist. LEXIS 70937 (WD VA, May 10, 2017), a Virginia federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 71291, March 20, 2017) and denied a preliminary injunction to a Muslim inmate who complained that he was precluded from observing weekly Jum'ah services because inmates in segregation can watch a tape of such services only if they purchase their own television set.

In Kitchen v. Leach, 2017 U.S. Dist. LEXIS 71144 (WD MI, May 10, 2017), a Michigan federal district court dismissed a Muslim inmate's claim that a vegan diet imposes a substantial burden on his religious beliefs and his complaint that his meal trays were marked kosher.  However it allowed him to move ahead with his claim that the vegan menu causes him gastrointestinal distress that interferes with his religious practices.

In Bishop v. Mohave Mental Health Inc., 2017 U.S. Dist. LEXIS 71368 (D AZ, May 10, 2017), an Arizona federal magistrate judge dismissed with leave to amend plaintiff complained that he was not allowed to attend religious services on March 24, 2013, without prior permission from his probation officer.

In Griffin v. Lopez, 2017 U.S. Dist. LEXIS 72315 (ED CA, May 11, 2017), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's complaint that he was denied religious meals on one day during Ramadan, and that defendant has a custom of denying Ramadan meals.

Fragmented Decision Upholds Business' Refusal to Print LGBT Pride T-Shirts

In a 2-1 decision yesterday, the Kentucky Court of Appeals concluded that a business which prints customized T-shirts was not in violation of a county's public accommodation law when it refused to print T-shirts for a local LGBT Pride Festival. At issue in Lexington Fayette Urban County Human Rights Commission v. Hands On Originals, Inc., (KY Ct. App., May 12, 2017), was the policy of a business which prints customized t-shirts, mugs, pens, and other accessories "to refuse any order that would endorse positions that conflict with the convictions of the ownership."

Chief Judge Kramer, writing the court's opinion, held that the business, Hands On Originals (HOO), never refused goods or services to a customer on the basis the customer's sexual orientation or gender identity because the order was placed by an organization which has no sexual orientation of gender identity. Neither did HOO deny goods or services because the customer was engaging in conduct engaged in exclusively or predominantly by a protected class of people. Judge Kramer explained, saying in part:

The acts of homosexual intercourse and same-sex marriage are conduct engaged in exclusively or predominantly by persons who are homosexual. But anyone—regardless of religion, sexual orientation, race, gender, age, or corporate status—may espouse the belief that people of varying sexual orientations have as much claim to unqualified social acceptance as heterosexuals. Indeed, the posture of the case before us underscores that very point: this case was initiated and promoted by Aaron Baker, a non-transgendered man in a married, heterosexual relationship who nevertheless functioned at all relevant times as the President of the GLSO.

Judge Lambert concurred only in the result and filed a separate opinion contending that HOO is protected in its conduct because of the Kentucky Religious Freedom Restoration Statute.  She said in part:

HOO refused to print the shirts because the HOO owners believe the lifestyle choices promoted by GSLO conflict with their Christian values.

Judge Taylor dissented, saying in part:

The majority takes the position that the conduct of HOO in censoring the publication of the desired speech sought by GLSO does not violate the Fairness Ordinance. Effectively, that would mean that the ordinance protects gays or lesbians only to the extent they do not publicly display their same gender sexual orientation. This result would be totally contrary to legislative intent and undermine the legislative policy of LFUCG since the ordinance logically must protect against discriminatory conduct that is inextricably tied to sexual orientation or gender identity. Otherwise, the ordinance would have limited or no force or effect.

 Lexington Herald Leader reports on the decision.

Suit Over War Memorial Depicting Cross Is Settled

The American Humanist Association announced on Thursday that a settlement has been reached in  American Humanist Association v. Borough of Roselle Park.  In the case, plaintiffs brought an Establishment Clause challenge to a war memorial on public property depicting a soldier kneeling over a grave marked by a Christian cross. (See prior posting.) The city took down the memorial after the lawsuit was filed.  Under the settlement agreement, the city agreed it will not erect the same display or a similar one in the future.

Pence At Conference On Persecution of Christians Says ISIS Is Guilty of Genocide

Vice President Mike Pence delivered a nearly 25-minute speech yesterday in Washington, D.C. at the first-ever World Congress of Persecuted Christians. (Full text of remarks). (Press release from Liberty Counsel.) The event is sponsored by the Billy Graham Evangelistic Association.  At one point in his prepared remarks, he said:

I believe ISIS is guilty of nothing short of genocide against people of the Christian faith, and it is time the world called it by name.

It is not clear whether he was announcing a formal labeling of ISIS activities as "genocide" which would then trigger obligations under the 1948 Convention on the Prevention and Punishment of Genocide.

Here are additional excerpts from the Vice President's speech:

I’m here on behalf of the President as a tangible sign of his commitment to defending Christians and, frankly, all who suffer for their beliefs across the wider world.  I stand here today as a testament to President Trump’s tangible commitment to reaffirm America’s role as a beacon of hope and light and liberty to inspire the world....

The reality is, across the wider world, the Christian faith is under siege.  Throughout the world, no people of faith today face greater hostility or hatred than the followers of Christ.  In more than 100 countries spread to every corner of the globe –- from Iran to Eritrea, Nigeria to North Korea –- over 215 million Christians confront intimidation, imprisonment, forced conversion, abuse, assault, or worse, for holding to the truths of the Gospel.  And nowhere is this onslaught against our faith more evident than in the very ancient land where Christianity was born....

In Iraq, at the hands of extremists, we’ve actually seen monasteries demolished, priests and monks beheaded, and the two-millennia-old Christian tradition in Mosul virtually extinguished overnight.  In Syria, we see ancient communities burned to the ground.  We see believers tortured for confessing Christ, and women and children sold into the most terrible form of human slavery.

Know today with assurance that President Trump sees these crimes for what they are: vile acts of persecution animated by hatred -- hatred for the Gospel of Christ.  And so too does the President know those who perpetrate these crimes.  They are them the embodiment of evil in our time.  He calls them by name -- radical Islamic terrorists....

But to be clear, adherents of other religions across the world have not been spared.  And we will speak for them and pray for them as well.  For as history attests, persecution of one faith is ultimately the persecution of all faiths.

Arson Awareness Week Focuses On Arson Prevention At Houses of Worship

The U.S. Fire Administration has designated May 7-13, 2017 as National Arson Awareness Week, and has made the theme for this year "Arson Prevention at Houses of Worship."

4th Circuit Hears Oral Arguments On North Carolina's Magistrate Recusal Law

The U.S. 4th Circuit Court of Appeals on Wednesday heard oral argument (audio of full arguments) in Ansley v. Warren (Docket No. 16-2082). In the case, a North Carolina federal district court dismissed for lack of standing an Establishment Clause challenge to North Carolina's S.B. 2 that allows magistrates who have religious objections to performing same-sex marriages to recuse themselves from performing any marriages. (See prior posting.)  AP reports on the oral arguments.

Court Rejects Commerce Clause Challenge To Dylann Roof's Church Shooting Conviction

A South Carolina federal district court has rejected challenges by Dylann Roof to his conviction in the widely publicized 2015 killing of 9 individuals in a Bible study class at Mother Emanuel AME Church in Charleston, South Carolina.  In United States v. Roof, (D SC, May 10, 2017), the court upheld against a commerce clause challenge Roof's conviction for violating 18 USC §247 which prohibits obstructing by force a person's free exercise of religion where the offense is in or affects interstate or foreign commerce. The court said in part:

Defendant argues that because his offense was noneconomic, because he did not travel in interstate commerce to commit it, and because he used items purchased in South Carolina, the Government failed to establish that the offense-- that is, the intentional, forcible obstruction of the free exercise of religion-- was in or affected interstate commerce....

Defendant used the internet to conduct research and identify Mother Emanuel as his target, a telephone to contact the church directly, and GPS navigation satellites to navigate interstate highways on his multiple trips to and from the vicinity of the church. He used a Russia-based service to host the online manifesto he posted shortly before the attack at Mother Emanuel, which explained his motives. In preparation for the attack, Defendant purchased hollow-point bullets, magazines, and a firearm that had all travelled in interstate commerce. Defendant entered Mother Emanuel carrying the firearm and loaded magazines in a tactical pouch that had travelled in interstate commerce. Inside the church, Defendant used the items he procured to kill nine parishioners....

Defendant argues that the proper test is whether the offense was in interstate commerce, not whether the items used to commit the offense were in interstate commerce.... The Court finds that argument unpersuasive.

Indonesian Governor Sentenced To 2 Years In Jail for Blasphemy

In Indonesia on Tuesday, Jakarta's outgoing governor, a Christian, was convicted of blasphemy and sentenced to two years in jail.  Comments about a verse in the Qur'an made during the campaign by the governor, Basuki Tjahaja Purnama (also known as "Ahok"), played a major role in his defeat by a Muslim candidate.  According to The Atlantic:

While on a work trip late last year, Purnama claimed that Jakarta’s Islamic leaders were misrepresenting a principle in the Koran for political gains. The verse in question, which comes from the fifth chapter of the Koran, suggests that Muslims should not have non-Muslim leaders. Purnama implied that his opponents were using the verse to discriminate against Christian candidates like himself. He later apologized for the comments, but did not admit to any wrongdoing.

Suit Challenges Zoning Laws As Discriminatory Against Orthodox Jews

Agudath Israel of America filed suit this week in a New Jersey federal district court contending that zoning ordinances enacted this year by the Township of Jackson, New Jersey were motivated by discriminatory animus against the Orthodox Jewish community and were designed "to prevent that community from being able to have the necessary educational institutions to teach their youth, and to discourage that community from residing in Jackson Township."  The complaint (full text) in Agudath Israel of America v. Township of Jackson, New Jersey, (D NJ, filed 5/8/2017), alleges in part:

The Ordinances are the latest action taken by the Township in a long campaign to erect a wall on its border with Lakewood Township, where many Orthodox Jews live, in order to discourage them from moving into Jackson. Its Mayor has told residents “Don’t sell” to the Orthodox Jewish community, its Township Council President said that a suggestion that Orthodox Jews move into communities such as Jackson was “reprehensible”....

The Lakewood Scoop reports on the lawsuit.

Creationist Scientist Sues National Park Service

A suit was filed this week in  an Arizona federal district court by Dr. Andrew Snelling, who is employed by the Christian apologetics organization Answers in Genesis, challenging his treatment by the National Park Service.  The complaint (full text) in Snelling v. U.S. Department of Interior, (D AZ, filed 5/9/2017), alleges that National Park Service officials denied, and then limited, plaintiff's permit to undertake research at four sites in the Grand Canyon "because of Dr. Snelling’s Christian faith and scientific viewpoints informed by his Christian faith." The complaint alleges violations of the 1st and 5th Amendments as well as RFRA.  ADF issued a press release announcing the filing of the lawsuit.

Missouri Legislature Restores Employment Discrimination Exemption For Religious Hospitals and Colleges

The Missouri legislature on Monday gave final passage to SB 43 (full text) which, among other things, restores the exemption for religiously affiliated hospitals and colleges from the state's employment discrimination law.  The existing version of the state's employment discrimination law excludes from the definition of "employer" any corporation or association "owned and operated by religious or sectarian groups." In a 2013 decision the Missouri Supreme Court in Farrow v. St. Francis Medical Center held that a Catholic hospital did not qualify for the exclusion because, while it may have been operated by a religious organization, it was not "owned" by a religious group. The statute just passed by the legislature (Sec. 213.010(8)) now provides an exclusion for "corporations and associations owned or operated by religious or sectarian organizations." The Pathway reporting on the bill says that Gov. Eric Greitens is expected to sign the bill in the near future.

Suit Claims Bishop Tried To Coerce Withdrawal of Clergy Abuse Charge

A suit was filed this week in a Minnesota state trial court against the Catholic Diocese of Crookston and its Bishop Michael Hoeppner.  The complaint (full text) in Vasek v. Diocese of Crookston, (MN Dist. Ct., filed 5/8/2017) alleges that plaintiff, who was studying to be a deacon, was told by Bishop Hoeppner that he must withdraw his previous charges of decades-old sexual abuse that he had previously made against an Ohio priest.  Hoeppner allegedly told plaintiff that if he did not, "the Bishop would have difficulty ordaining Plaintiff as a deacon for the Diocese of Crookston and that Plaintiff s son's priesthood in the Diocese of Crookston would be negatively impacted." Minneapolis Star Tribune reports on the lawsuit.

West Virginia Supreme Court: Sexual Orientation Not Covered By Civil Rights Law

In State of West Virginia v. Butler, (Sup. Ct. WV, May 9, 2017), the West Virginia Supreme Court of Appeals in a 3-2 decision held that "sex" in the state's civil rights statute does not include sexual orientation.  At issue is defendant's indictment for assaulting a same-sex couple.  The Court said in part:

In 1987, our Legislature exercised its right to define crimes when it enacted West Virginia Code § 61-6-21(b) through which it became a felony to violate a person’s civil rights by threat, intimidation and/or injury to another person or another person’s property because of specifically enumerated characteristics, including the victim’s “sex.” W.Va. Code § 61-6-21(b). In determining what is meant by the word “sex,” we are mindful that “‘[w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.’ 

Justice Workman joined by Justice Davis filed a dissenting opinion.

California Supreme Court Interprets "Day of Rest" Statute

In Mendoza v. Nordstrom, Inc., (CA Sup. Ct., May 8, 2017), the California Supreme Court issued an opinion answering questions certified to it by the U.S. 9th Circuit Court of Appeals on the meaning of California's "Day of Rest" statute.  At issue is the meaning of California Labor Code §551 which provides: "Every person employed in any occupation of labor is entitled to one day's rest therefrom in seven."  Looking at the history of the provision, the Court said:

Given that religious days of rest, though they vary between denominations, typically recur on the same day each week, the statute could be understood as extending a guarantee of a day of rest every week, on a day of the individual‘s choosing, or, equally, a day of rest at least every seventh day.

The Court concluded that the statute guarantees a day of rest sometime in each work week, so that an employee might work for more than 7 consecutive days. It also concluded that "An employer is not ... forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest."

Bermuda Court Legalizes Same-Sex Marriage

In a 49-page opinion handed down last week, a Bermuda trial court judge legalized same-sex marriage in the island nation (which is classified as a British Overseas Territory).  In Godwin v. Registrar General, (Bermuda Sup. Ct., May 5, 2017), the court held that the Registrar General violated the Human Rights Act of 1981 (HRA) when it denied a  marriage license to a same-sex couple. The court concluded that the provision of the HRA that prohibits discrimination on the basis of sexual orientation in the provision of services applies to the Registrar General's action.  The Royal Gazette reports on reaction to the ruling.