California Lions Club Sues To Control Cross In Park

According to the East Bay Times, on Sept. 11 the Albany, California Lion's Club filed suit in federal court against the city and several city officials in a dispute involving a 20-foot cross in the city's Albany Hill Park. The cross was constructed in 1971 on privately-owned land.  It was transferred to the city in 1973 as part of a controversial land deal in which the city created Albany Hill Park. Before the transfer to the city, the Lion's Club was granted an easement to allow it to maintain the cross. In December 2015, the city cut power to the cross, contending that a utility line running to it was unsafe. It cut power again in 2016 until the local utility PG&E took responsibility for the power line to assure that the cross would be lit for the Christmas and Easter seasons. According to the Times report, the suit:

asks for permanent injunctions preventing the city from depriving the Lions Club of using its easement, preventing interference in utility service, hampering the Lions Club’s free speech rights and exercise of religion, and demands an order to force the city to sell or divest ownership of the land with the cross on it. The suit also asks for damages and legal fees.

Court Says Private Investigator Invaded Privacy of Buddhist Temple

In Vo v. Mason, (CA App., Sept. 19, 2017), a California state appellate court held that plaintiff Thuy Thanh Vo was likely to prevail on her state constitutional invasion of privacy suit against a neighbor and those working with him who are trying to prevent Vo from using her property as a Buddhist Temple without zoning approval.  Posing as someone who wanted to study Buddhism and pray, one of the defendants who is a private investigator took photos of religious ceremonies at Vo's property.  The court's finding of a probability of success led the court to deny a SLAPP motion to dismiss Vo's suit.

Recent Articles of Interest

From SSRN:

• Rahman Apalara, Striking a Balance: Freedom of Expression and the Prohibition of Hate Speech and Offensive Remarks, (September 11, 2017).
• Nadia N. Sawicki, A Common Law Duty to Disclose Conscience-Based Limitations on Medical Practice, (Chapter 13 in Law, Religion, and Health in the United States (Lynch, Holly Fernandez, I. Glenn Cohen, and Elizabeth Sepper eds., 2017).
• Nomi Maya Stolzenberg, From Eternity to Here: In Search of the Origins of Secularism, (USC Legal Studies Research Papers Series No. 17-20 (2017)).
• Adam J. White, Justice Scalia's Soulcraft as Statecraft, (June 15, 2017).
• Noa Ben-Asher, Faith-Based Emergency Powers, (Harvard Journal of Law and Gender, Forthcoming).
• Steven J. Heyman, The Light of Nature: John Locke, Natural Rights, and the Origins of American Religious Liberty, (Marquette Law Review, Forthcoming).
• Terri Lynn Helge, Rejecting Charity: Why the IRS Denies Tax Exemption to 501(C)(3) Applicants, (Pittsburgh Tax Review, Vol. 14, No. 1, 2016).

From SSRN (Non-U.S. Law):

• Ming-Sung Kuo & Hui-Wen Chen, The Brown Moment in Taiwan: Making Sense of the Law and Politics of the Taiwanese Same-Sex Marriage Case in a Comparative Light, (Columbia Journal of Asian Law, Forthcoming).
• Mehdi Shadmehr, Khomeini's Theory of Islamic State and the Making of the Iranian Revolution, (September 16, 2017).
• Jikon Lai, Lena Rethel & Kerstin Steiner, Conceptualizing Dynamic Challenges to Global Financial Diffusion: Islamic Finance and the Grafting of Sukuk, (Review of International Political Economy, 2017).
• Aklavya Anand & Shailesh Kumar, Public Domain of Personal Laws: An Inquiry from the Perspectives of Conflict of Interests and Identities, (NLSIU Journal of Law and Public Policy, Volume IV, Special Issue, 2017).

From SmartCILP:

• Wim Decock, Law, Religion, and Debt Relief: Balancing Above the 'Abyss of Despair' in Early Modern Canon Law and Theology, [Abstract], 57 American Journal of Legal History 125-141 (2017).
• Anton Sorkin, Graduation Ceremonies: A Prayer for Balancing Sponsorship and Censorship, 41 Southern Illinois University Law Journal 345-402 (2017).

Recent Prisoner Free Exercise Cases

In Paliotta v. State of Nevada ex rel Nevada Department of Corrections, (NV Sup. Ct., Sept. 14, 2017), the Nevada Supreme Court held that the trial court erred when it used the centrality test instead of the sincerely held belief test to decide if an inmate of the Thelemic faith was entitled to receive a kosher diet or a traditional Egyptian diet.

In Brown v. Solomon, 2017 U.S. Dist. LEXIS 150611 (WD NC, Sept. 15, 2017), a North Carolina federal district court allowed an inmate to move ahead with his efforts to reinstate separate religious services for Jehovah's Witnesses.

In Neely-Bey Tarik-El v. Conley, 2017 U.S. Dist. LEXIS 151714 (SDIN, Sept. 19, 2017), an Indiana federal district court dismissed on qualified immunity grounds a suit by an inmate claiming that his rights were violated when prison authorities disciplined him for violating a resolution of the Moorish Science Temple of America prohibiting him from actively engaging in MSTA religious services.

In Sabin v. Karber, 2017 U.S. Dist. LEXIS 152476 (WD MI, Sept. 20, 2017), a Michigan federal district court dismissed complaints by a Messianic Christian prison ministry that mail it sent into prisons was being rejected.

In Evans v. Lopez, 2017 U.S. Dist. LEXIS 153274  (ED CA, Sept. 15, 2017), a California federal magistrate judge allowed an inmate to move ahead with his complaint that he was denied Ramadan meals that he had bee approved to receive.

Court Upholds Anti-Discrimination Law Over Wedding Videographer's Challenge

In Telescope Media Group v. Lindsey, (D MN, Sept. 29, 2017), a Minnesota federal district court in a 63-page opinion rejected a challenge to a provision of the Minnesota Human Rights Act that requires plaintiffs, owners of a videography business that plans to offer wedding videos, to serve same-sex couples.  Responding to plaintiffs' free speech arguments, the court said in part:

Posting language on a website telling potential customers that a business will discriminate based on sexual orientation is part of the act of sexual orientation discrimination itself; as conduct carried out through language, this act is not protected by the First Amendment.

Plaintiffs also argued that the law, as applied, unconstitutionally affects the content of their videos. However the court concluded:

The MHRA’s application to the Larsens’ wedding video business, as a content neutral regulation of conduct with an incidental effect on speech, survives intermediate scrutiny.

The court went on to reject plaintiffs' free exercise challenge, finding that the law is neutral and of general applicability.

Church Loses RLUIPA Equal Terms Challenge To Parking Requirements

In Immanuel Baptist Church v. City of Chicago, (ND IL, Sept. 22, 2017), an Illinois federal district court dismissed a church's facial RLUIPA "equal terms" challenge, as well as its equal protection challenge to the city's parking requirement for "religious assemblies." The court concluded that churches are not similarly situated to libraries for which less stringent parking standards are imposed. The court however granted the church leave to file an amended complaint asserting an "as applied" RLUIPA challenge.

Tennessee Supreme Court: Resolves Approach In Church Property Dispute

In Church of God In Christ, Inc. v. L.M. Haley Ministries, Inc., (TN Sup. Ct., Sept. 21, 2017), the Tennessee Supreme Court, in a church property dispute, concluded that a break-away local church held its property in trust for its parent body, Church of God In Christ, Inc. The court held that in church property disputes, Tennessee courts should apply the "hybrid" version of the "neutral principles" doctrine:

In applying the hybrid approach, Tennessee courts may consider any relevant statutes, the language of the deeds and any other documents of conveyance, charters and articles of incorporation, and any provisions regarding property ownership that may be included in the local or hierarchical church constitutions or governing documents. But ... a civil court must enforce a trust in favor of the hierarchical church, even if the trust language appears only in the constitution or governing documents of the hierarchical religious organization.

The court also held that civil courts should defer to the decision of the Ecclesiastical Council as to who should be pastor of the church.

A concurring opinion by Justice Curry questioned the majority's treatment of the ecclesiastical abstention doctrine as a bar to jurisdiction rather than as an affirmative defense.  The Court also issued a press release summarizing its decision.

Mosque's Property Tax Challenge Barred By Tax Injunction Act

In Islamic Center of Nashville v. Sate of Tennessee, (6th Cir., Sept. 20, 2017), the U.S. 6th Circuit court of Appeals held that the federal Tax Injunction Act (TIA) bars suit in federal court challenging Tennessee's application of its property tax exemption rules to property of an Islamic Center.  To finance construction of a new school, the Islamic Center entered a 5-year ijara agreement-- an Islamic financing method that relies on a temporary sale and lease-back arrangement with a bank to avoid borrowing at interest.  The county removed the property's tax exemption for the period that title was technically held in the bank's name.  The court held that because state law provides a plain, speedy, and efficient
alternative to federal court review of the county's assessment of taxes on the Islamic Center, that is the route that plaintiff must take. There is no special exception to the TIA for First Amendment claims.

Lawsuit Challenges Adoption Agencies' Refusal To Place Children With Same-Sex Couples

Today two same-sex couples and a Michigan taxpayer filed suit in a Michigan federal district court challenging the state's practice of contracting out foster-care and adoptive placement to social service agencies that apply religious criteria in placing children.  Statutes passed the state legislature in 2015 approve this practice.  The complaint (full text) in Dumont v. Lyon, (ED MI, filed 9/20/2017), alleges that religiously affiliated agencies' practice of turning away qualified families on the basis of sexual orientation, violates the Establishment Clause and the Equal Protection Clause.  ACLU issued a press release announcing the filing of the lawsuit.

Michigan Civil Rights Commission Stymied In Effort To Issue Interpretive Opinion On Law's Coverage

In June, Equality Michigan wrote the Michigan Civil Rights Commission asking it to issue an interpretative statement finding that the ban on sex discrimination in employment, housing, and public accommodations in Michigan’s Elliott-Larsen Civil Rights Act covers discrimination based on gender identity and sexual orientation. (Full text of letter.)  As reported by MLive, on Monday the Commission held a lengthy hearing on the request, but took no final action after an Assistant Attorney General told the Commission that lacks legal authority to issue an interpretive statement. A frustrated Commission voted 5-2 to ask the Attorney General for a formal opinion on its authority.

7 U.S. Senators Write Netanyahu Over Jewish Pluralism In Israel

As reported by JTA, on Monday seven U.S. senators (all of them Jewish) sent a letter (full text) to Israeli Prime Minister Benjamin Netanyahu expressing concern over Israeli governmental recognition of Orthodox Judaism over the more liberal branches of Judaism.  Signed by Senators Wyden, Feinstein, Frankin, Blumenthal, Cardin, Schatz, and Sanders, the letter read in part:

[W]e applaud your recent decision to put a hold on a conversion bill under consideration by the Knesset. As we understand it, this bill would invest full oversight of conversions in Israel to the Chief Rabbinate.  We fear this would have significant ramifications for the religious equality of all Jewish movements in Israel and we worry that our Modern Orthodox and non-Orthodox constituents will see this as an attack on their Jewishness and the status of their rabbis....

We are also very concerned by the Israeli government's recent decision to freeze a widely-agreed-upon plan to establish an egalitarian payer space at the Western Wall....

We fear actions like [these] ... will strain the unique relationship between our two nations, particularly if the majority of American Jews see the movements to which they are committed denied equal rights in Israel.  Given all the challenges Israel faces on the international stage, we urge you not to alienate committed Zionists.

Suits Against Kim Davis Move Ahead

In two similar cases, Yates v. Davis, (ED KY, Sept. 15, 2017), and Ermold v. Davis,(ED KY, Sept. 15, 2017), a Kentucky federal district court allowed plaintiffs to move ahead with their damage actions against Rowan County, Kentucky Clerk, Kim Davis, who refused to issue them marriage licenses. Davis adopted a "no marriage license" policy because of her religious objections to issuing licenses for same-sex marriages. (See prior related posting.) While dismissing claims brought against Davis in her official capacity, the court refused to dismiss personal capacity claims against her.  It found that her refusal to issue licenses was subject to strict scrutiny. [Thanks to Tom Rutledge for the lead.]

State May Require Inspection of Release Time School Buses

In CBM Ministries of South Central Pennsylvania v. Richards, (MD PA, Sept. 19, 2107), a Pennsylvania federal district court held that to the extent state school bus inspection regulations apply to buses of a religious organization, the regulations do not violate the Free Exercise Clause.  They are a neutral and generally applicable regulation.  At issue were buses that are used to transport students from public schools to an off-premise release time Bible education program.

Report Claims DOJ Was Divided Over Whether To File Amicus Brief In Masterpiece Cakeshop

As previously reported, earlier this month the Department of Justice filed an amicus brief in the Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, siding with the Christian bakery owner who refused to design and create a cake for a same-sex wedding.  Last week National Law Journal reported that the Department was divided on whether to file an amicus brief, although a Justice Department spokesperson denied  the report.The paper says:

Senior lawyers in the civil and civil rights divisions and within the U.S. solicitor general’s office said the department should not take a position in the case...

[Acting Solicitor General Jeffrey] Wall was the lead attorney among what former Justice Department lawyers said was an unusually large group of attorneys—eight in all—whose names appeared on the cover of the court filing....

Absent from the government’s Masterpiece Cakeshop brief was any career deputy solicitor general, whose name routinely appears on amicus and merits filings from the Justice Department.

Trump Issues Jewish High Holy Day Greetings

President Trump yesterday issued a Jewish High Holy Day Message (full text), saying in part:  "On behalf of all Americans, I want to wish Jewish families many blessings in the New Year."

Recent Articles of Interest

From SSRN:

• Aziz Z. Huq, Judging Discriminatory Intent, (Cornell Law Review, Vol. 103 (2017)).
• William E. Thro & Charles J. Russo, Odious to the Constitution: The Educational Implications of Trinity Lutheran Church v. Comer, (Education Law Reporter (2017, Forthcoming)).
• Elizabeth Brown & Inara K. Scott, Sanctuary Corporations: Should Liberal Corporations Get Religion?, (August 18, 2017).
• Erdem Büyüksagis, The Role of Comparative Law: New International Model Rules vs. Time-Tested Local Practices, (North Carolina Journal of International Law and Commercial Regulation, Vol. 42, No. 3, 2017).
• Ori Aronson, The How Many Question: An Institutionalist's Guide to Pluralism, (Institutionalizing Rights and Religion: Competing Supremacies 147-163 (Leora Batnitzky & Hanoch Dagan eds., Cambridge University Press, 2017).
• Scott D. Gerber, Law and Catholicism in Colonial Maryland, (103 Catholic Historical Review 465 (2017)).
• Reva Siegel, ProChoiceLife: Asking Who Protects Life and How—And Why It Matters in Law and Politics, (Indiana Law Journal, Forthcoming).
• Virginia La Torre Jeker, When Sharia and U.S. Tax Law Collide, (Tax Notes International, Volume 87, No. 8, August 21, 2017).
• David Herzig & Samuel D. Brunson, Let Prophets Be (Non) Profits, (Wake Forest Law Review, Forthcoming).

Israel's High Court Erodes Rabbinate's Monopoly On Kosher Certification

By a vote of 5-2, last week an expanded panel of Israel's High court of Justice handed down a ruling which moves toward breaking the Chief Rabbinate's monopoly on designation of which restaurants in the country are kosher.  As reported by Haaretz and Arutz Sheva, the ruling stops short of allowing alternative private kashrut certification. It upholds the Rabbinate's position that Israel's Kosher Fraud Law prohibits a business from representing itself as "kosher" without a certification approved by the Chief Rabbinate. However the decision does allow businesses "to display a true representation about the standards they follow and the way they are supervised in keeping them, which also includes an explicit clarification that they do not have a kashrut certificate."  The court added:

Assuming it is telling the truth, nothing prevents a food establishment from clarifying that the meat it serves was purchased from a slaughterhouse that carries kosher certification; and that the fish it serves are only those with fins and scales.

Recent Prisoner Free Exercise Cases

In Canada v. Gregg, 2017 U.S. Dist. LEXIS 146892 (WD VA, Sept. 12, 2017), a Virginia federal district court dismissed a Muslim inmate's complaint that changes in the common fare diet menu caused him to lose substantial weight.

In Goins v. Fleming, 2017 U.S. Dist. LEXIS 146891 (WD VA, Sept. 12, 2017), a Virginia federal district court allowed a Muslim inmate to move ahead with his complaint regarding kufi use during pod recreation and bathroom access during Sunni group services.  However the court dismissed a number of other claims regarding religious diet and location and monitoring of Sunni religious services.

In Jones v. North Carolina Department of Public Safety, 2017 U.S. Dist. LEXIS 147950 (WD NC, Sept. 12, 2017), a North Carolina federal district court allowed a Muslim inmate to move ahead with his complaint that he was required to shave his beard before he could go to a work-release job interview.

In Stansel v. Sorey, 2017 U.S. Dist. LEXIS 147985 (ND FL, Sept. 13, 2017), a Florida federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 148260, Aug. 8, 2017) and dismissed a Muslim inmate's complaint that an offer by an "Islamic sponsor" to provide funding for Ramadan and Eid al Fitr observances was rejected, while sponsors were accepted for other religious groups.

In Frazier v. Florida Department of Corrections, 2017 U.S. Dist. LEXIS 148814 (Sept. 14, 2017), a Florida federal district court dismissed a Jewish inmate's complaints regarding the adequacy and availability of a kosher diet.

In Johnson v. Swibas, 2017 U.S. Dist. LEXIS 149163 (D CO, Sept. 13, 2017), a Colorado federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 150250, July 28, 2017) and dismissed a Messianic Jewish inmate's complaint that he could not obtain an alternative kosher diet without confirmed medical food allergy test results.

Church's Objections To Zoning Conditions Dismissed On Ripeness Grounds

In Life Covenant Church, Inc. v. Town of Colonie, (ND NY, Sept. 13, 2017), a New York federal district court dismissed on ripeness grounds a church's objections to conditions placed in the zoning approval for its construction of a new building. The church contended that conditions limiting the starting time for religious services and the number of daily services violated its rights under the state and federal constitutions as well as RLUIPA.  The court held that the judicial challenge is not ripe because the church has not received a final decision on its request to the city that it amend its prior approval to eliminate the objectionable conditions.

Farmer's Market Must Issue Vendor's Permit To Orchard That Refuses To Host Same-Sex Weddings

In Country Mill Farms, LLC v. City of East Lansing, (WD MI, Sept. 15, 2017), a Michigan federal district court issued a preliminary injunction requiring a Michigan city to allow an orchard owner to sell produce at its Farmer's Market even though he refuses on religious grounds to host same-sex weddings at his orchard.  After Country Mill posted its policy against hosting same-sex weddings on its Facebook page, the city amended its Farmer's Market Vendor Guidelines to require all vendors to comply with the city's civil rights ordinances not only at the Farmer's Market, but "as a general business practice." It denied Country Mill a vendor's license because of non-compliance with the public accommodation law which, among other things, prohibits publishing a statement that indicates a business will discriminate on the basis of sexual orientation.

The court found that Country Mill had shown a substantial likelihood of success on its First Amendment retaliation claim: The city took action chilling the orchard owner's speech about his religious beliefs. Plaintiff also showed a likelihood of success on his free exercise claim:

The context in which the Vendor Guidelines were amended and then applied to Country Mill supports Plaintiffs’ claim that their religious beliefs or their religiously motivated conduct was the target of the City’s actions.... [T]he City’s hostility to Plaintiffs’ religion or religious conduct was ... manifested when the City used its facially neutral and generally applicable ordinance to deny Plaintiffs’ Vendor Application.

ADF issued a press release on the decision, with links to some of the other pleadings in the case.