Christmas As Legal Holiday Does Not Violate County Employee's Rights

In Edelstein v. Stephens, (SD OH, Feb. 16, 2018), a Ohio federal magistrate judge recommended dismissing many of the claims of a state court staff attorney/magistrate who was fired after she requested eight days off for Jewish holidays. One of plaintiff's claims was that the county violated her free exercise and equal protection rights by designating Christmas as a legal holiday without similarly protecting the rights of non-Christians to celebrate their holidays.  The court said in part:

Butler County's policy establishing Christmas as a paid legal holiday for county employees is a neutral law that does not discriminate against a particular religion or set of religious beliefs or prohibit any conduct because it is undertaken for religious reasons.... The Sixth Circuit has acknowledged that because there are "legitimate secular purposes for establishing Christmas as a legal public holiday," it follows that the establishment of Christmas day as a legal public holiday neither violates an individual's fundamental rights nor discriminates against her based on her religion.

The Butler County Journal-News reports on the decision.

"Parody Marriage" Bills Are Newest Attempt To Challenge To Same-Sex Marriage

A bill titled Marriage and Constitution Restoration Act (H 4949) was introduced into the South Carolina legislature last week (Feb. 15). A similar bill with the same title (HB 0167) was received for introduction in the Wyoming legislature on Feb. 14.  Taking a new approach to challenging same-sex marriage, the bills define marriage that does not involve one man and one woman as "parody marriage."  The bills then declare that parody marriages, as well as treating sexual orientation as a suspect class, violate the Establishment Clause because they are part of the religion of Secular Humanism.  They declare, on the other hand, that marriages between one man and one woman are secular because they arise "out of the nature of things" and are "natural, neutral and noncontroversial."   According to the Charleston City Paper, the bills in both states were written with the advice of Chris Sevier. Sevier has gained notice by filing lawsuits seeking to have his marriage to his computer recognized--- suits filed in an attempt to discredit non-traditional marriages. (See prior posting.)

Recent Articles and Book of Interest

From SSRN:

• Jeremy Patrick, 'A La Carte' Spirituality and the Future of Freedom of Religion, (January 31, 2018).
• Rafael Domingo, Penal Law in the Roman Catholic Church, (Ecclesiastical Law Journal 20 (2018), Forthcoming).
• Nelson Tebbe, Conscience and Equality, (Journal of Civil Rights and Economic Development (2018 Forthcoming)).
• Andrew P. Cicero, III, Is It Well with Your Soul? The Surprising Divide within the Baptist Community Concerning Trinity Lutheran Church of Columbia, Inc. v. Comer, (February 1, 2018).
• Ryan T. Anderson, Marriage, the Court, and the Future, (Harvard Journal of Law and Public Policy, Vol. 40, No. 2, 2017).
• Courtney G. Joslin, Discrimination In and Out of Marriage, (98 Boston University Law Review 1 (2018)).
• Emily Warwick, Title IX, Tax-Exemption, and Transgender Students: Using Federal Guidelines to Determine the Tax-Exempt Status of Single-Sex Institutions, (January 31, 2018).

From SSRN (Law of charities):

• Natalie Silver, Regulating the Foreign Activities of Charities: A Comparative Perspective, (Report for the Pemsel Case Foundation, 2017).
• Brian D. Galle, Design and Implementation of a Charitable Regulation Regime, (January 28, 2018).
• Paul B. Miller, The Identification of Fiduciary Relationships, (Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff, eds., The Oxford Handbook of Fiduciary Law (New York: Oxford University Press, 2018)).

From SSRN (European law):

• Evina Heydari, A Post-Secular Europe? – A Critical Discourse Analysis of European Rulings Regarding Religious Symbols in the Public Sphere, (November 18, 2017).
• Natalie Alkiviadou, Regulating Hate Speech in the EU, (Online Hate Speech in the European Union. A Discourse-Analytic Perspective. Springer briefs in Linguistics (2017)).

From SSRN (Islam and Islamic Law):

• Fajri Muhammadin, Should Muslims Argue Exceptionalism/Particularism in International Law?, (February 8, 2018).
• Marco Longobardo, The Self-Proclaimed Statehood of the Islamic State between 2014 and 2017 and International Law, ((2017) 33 Anuario español de derecho internacional 205-228).
• Ending Solehudin, The System Zakat Reform of Management and the Zakat in Indonesia (A Study of the Fatwa of Islamic Organization Persis and MUI on the Management of Zakat), (International Journal of Financial Management (IJFM), Vol. 7, Issue 1, Dec – Jan 2018, 1-20).
• Reza Banakar, Double-Thinking and Contradictory Arrangements in Iranian Law and Society, (Digest of Middle East Studies, Forthcoming).

From SmartCILP:

• Douglas Laycock, Churches, Playgrounds, Government Dollars -- and Schools? 131 Harvard Law Review 133-169 (2017).
• Stacey A. Tovino, On Health, Law, and Religion, 74 Washington & Lee Law Review 1623-1691 (2017).

Recent Book:

• Monroe Price & Nicole Stremlau (eds.), Speech and Society in Turbulent Times: Freedom of Expression in Comparative Perspective, (Cambridge Univ. Press, Dec. 2017).

Mother Held In Contempt For Ignoring Custody Order Giving Father Control of Religious Decisions

The Charlotte Observer last week reported that a North Carolina state Superior Court judge has upheld a contempt conviction of 36-year old Kendra Stocks for disobeying a court order regarding custody of her daughter. One day after a district court judge gave full custody, specifically including decisions concerning religion, of Stocks' 3-year old daughter to the child's father, Stocks went ahead with a previously-planned baptism of the child. She did not inform the father of the planned ceremony; he learned of it through Stocks' Facebook postings. The Superior Court reduced Stocks contempt sentence from ten to seven days. [Thanks to Scott Mange for the lead.]

Recent Prisoner Free Exercise Cases

In Mikell v. Folino, (3d Cir., Feb. 13, 2018), the 3rd Circuit affirmed the dismissal of an inmate's complaint that he did not receive Ramadan meals.

In Corbett v. Annucci, 2018 U.S. Dist. LEXIS 24291 (SD NY, Feb. 13, 2018), a New York federal district court allowed an inmate to move ahead with claims for injunctive relief alleging that he did not receive Halal meals.

In Jones v. Annucci, 2018 U.S. Dist. LEXIS 24359 (SD NY, Feb. 13, 2018), a New York federal district court dismissed an inmate's complaint that he was required to change his religious registration from Islam to Shia before he could participate in Shia religious events.

In Thomas v. Slusher, 2018 U.S. Dist. LEXIS 25916 (ND OH, Feb. 16, 2018), an Ohio federal district court dismissed an inmate's complaint that he was transferred out of the faith-based prison unit.

In Woods v. Paramo, 2018 U.S. Dist. LEXIS 25989 (SD CA, Feb. 15, 2018), a California federal court allowed an inmate to move ahead with his suit challenging delays in providing a kosher diet when he is transferred for extensive periods.

No Free Exercise Defense To Charge of Attending Cockfight

In United States v. Cruz, (SD NY, Feb. 15, 2018), a New York federal magistrate judge rejected a Free Exercise defense to a charge of knowingly attending a cockfight in violation of 7 USC §2156.  The court said in part:

Here, Cruz has failed to make a showing that the act of engaging in animal fighting ventures stems from sincerely held beliefs that are religious in nature. Although Cruz continually refers to the “God given” dominion of man over animals, he does not identify any specific religious tenets or practices that are burdened by the statute. Nor does he identify any religion or denomination from which his beliefs derive. Indeed, in “attest[ing] to the importance of the God given rights of the American farmer,” Cruz cites quotations in which the founding fathers, including Thomas Jefferson, John Adams, James Madison, and Benjamin Franklin, exalted agriculture.... This suggests that Cruz’s beliefs are philosophical or political in nature.

Ohio Court Gives Custody of Transgender Teen To Grandparents

CNN reports that an Ohio trial court judge today gave custody of a 17-year old transgender male to his grandparents after his parents sought to bar the hormonal transition treatment strongly recommended by the youth's medical team.  Grandparents will now be able to make medical decisions for the teen.  The parents argued that the teen was not old enough to make such a consequential decision.  A county prosecutor contended that the parents objected because of their religious beliefs. Court testimony revealed that the parents, in addition to opposing treatment, refused to call the youth by his chosen name, triggering suicidal feelings in him.

EEOC Sues Over Accommodation For Religious Objection To Flu Vaccine

The EEOC announced this week that it has filed a religious discrimination lawsuit against the Owossso, Michigan based Memorial Healthcare.  The company revoked its job offer to Yvonne Bair to work as a medical transcriptionist after she objected on religious grounds to receiving an influenza shot or spray immunization.  Memorial refused her suggested accommodation of allowing her to wear a mask, even though company policy allowed masks as an alternative for those who cannot take a vaccine for other reasons.  MarketWatch reports on the lawsuit.

4th Circuit En Banc Says Trump's Third Travel Ban Violates Establishment Clause

The U.S. 4th Circuit Court of Appeals en banc today, in opinions spanning 285 pages, affirmed a Maryland federal district court's grant of a preliminary injunction against the Proclamation setting out the third version of President Trump's travel ban.  In International Refugee Assistance Project v. Trump, (4th Cir. en banc, Feb. 15, 2018), the court by a vote of 9-4 held that plaintiffs are likely to succeed on the merits of their Establishment Clause claim.  Chief Judge Gregory's majority opinion said in part:

[H]ere the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.....

While the majority ultimately concluded that it would not rely on President Trump's pre-election statements in reaching its conclusion, it nevertheless indicated that it would have been permissible to do so:

Perhaps in implicit recognition of the rawness of the religious animus in the President’s pre-election statements, the Government urges us to disregard them. This is a difficult argument to make given that the President and his advisors have repeatedly relied on these pre-election statements to explain the President’s post-election actions related to the travel ban....  [I]n McCreary, the Supreme Court reminded us that “the world is not made brand new every morning.” .... Because “reasonable observers have reasonable memories,” these statements certainly provide relevant context when examining the purpose of the Proclamation.

The majority concluded:

In sum, the face of the Proclamation, read in the context of President Trump’s official statements, fails to demonstrate a primarily secular purpose. To the objective observer, the Proclamation continues to exhibit a primarily religious anti-Muslim objective. Our constitutional system creates a strong presumption of legitimacy for presidential action and we often defer to the political branches on issues related to immigration and national security. But the disposition in this case is compelled by the highly unusual facts here. Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is thus not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act based on “religious animosity.”

Six of the judges would have also found a likelihood of success on at least some of plaintiffs' statutory challenges to the Proclamation. Four concurring opinions and two dissenting opinions were also filed. Pursuant to an earlier U.S. Supreme Court order, the court stayed the injunction pending a petition for certiorari to the Supreme Court. Richmond Times-Dispatch reports on today's decision.

NY Governor Issues Executive Order Barring State Contracts With Entities That Fail To Address Discrimination

Earlier this month (Feb. 3), New York Governor Andrew Cuomo issued an Executive Order (full text)  directing all state agencies and departments to amend their procurement procedures to prevent entering into contracts "with entities that have institutional policies or practices that fail to address the harassment and discrimination of individuals on the basis of their age, race, creed, color, national origin, sexual orientation, gender identity, military status, sex, marital status, disability, or other protected basis."  State departments and agencies must include non-discrimination provisions in all contracts for goods, services, technology or construction.  In a press release announcing the Executive Order, the governor's office said in part:

The Trump administration has banned transgender people from serving in the U.S. Military, removed guidance nationwide that helped protect young transgender students at school, and completely removed the LGBTQ community from the National Survey of Older Americans. Additionally, in October 2017, the federal government rescinded a contraceptive coverage mandate under the Affordable Car Act. This action has permitted employers and organizations to claim broad exemptions from nondiscrimination laws, which has increased the vulnerability of LGBTQ rights.

Following these actions, which perpetuate and tolerate discrimination and taken this nation in the wrong direction, New York is once again stepping up to ensure the rights of individuals across the state are protected.

The Director of Public Policy of the Archdiocese of New York strongly criticized the new Executive Order, saying in part:

the target of this new action is the very existence of religious agencies, and the intent is to suppress any deviation from the new orthodoxy of gender and sexual ideology.

LifeSite News reports further on these developments.

Murder Convictions Reversed Because Jehovah's Witness Juror Excluded

In Pacchiana v. State of Florida, (FL App., Feb. 14, 2018), a Florida appeals court reversed and remanded for a new trial the murder conviction of defendant.  In companion decisions the convictions of Pacchiana's co-defendants were also reversed: Michael Bilotti v. Florida and in Christin Bilotti v. Florida .

In the case, defense counsel raised a Batson challenge to the state's peremptory strike of an African American member of the jury pool.  The state responded that its race-neutral reason for the challenge was that the juror is a Jehovah's Witness.  The prosecution urged that members of that religion often believe that only God judges and they cannot judge.  In the court's primary opinion, Judge Levine wrote:

the state did not provide a “legitimate” race-neutral reason..... During voir dire, the potential juror stated that she would follow the law and gave no indication that she would allow her status as a Jehovah’s Witness to affect her decisionmaking at all. In moving to strike her, the state merely relied on the juror’s membership in a religion without any testimony that it would actually affect her service as a juror, speculating that “any” practicing Jehovah’s Witness would refuse to sit in judgment of others.

Judge Levine went on to conclude that even if this was a valid religion-based challenge, Batson should be extended to religion-based peremptory challenges, as well as racial ones.  He also concluded that:

striking a potential juror from jury service based solely on membership in a religion, no matter what the juror says during voir dire, is an impermissible “religious test” in violation of the United States and Florida Constitutions.

Chief Judge Gerber concurred only in part, concluding that religion is a race-neutral response to a Batson challenge. However he agreed with Judge Levine's other conclusions that made this an impermissible religion-based challenge.  Judge May dissented, concluding that Batson should not be extended to religion-based challenges.  She also concluded that there were sufficient additional reasons given for the challenge to make it race-neutral. However in co-defendant Christin Bilotti's case, she would remand for resentencing.  The Sun Sentinel reports on the decision.

City Considering Crowdfunding To Pay Ten Commandments Litigation Costs

The Farmington Daily Times reports that the city of Bloomfield, New Mexico may take an unusual approach to paying the $700,000 attorneys' fees of the successful plaintiffs who sued it over a Ten Commandments monument. It is considering using an online crowdfunding site to raise the funds.  While Alliance Defending Freedom represented the city without charge in the litigation, now that the city has finally lost after a denial of review by the Supreme Court, it must pay the ACLU for the cost of representing plaintiffs in the litigation.  The amounts will have to come from the city's general funds if its crowdfunding initiative is unsuccessful.

Cert. Filed In Episcopal Church Property Dispute

A petition for certiorari (full text) was filed last week with the U.S. Supreme Court in Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (cert. filed 2/9/2018).  In the case, the 5-member South Carolina Supreme Court in 5 separate opinions spanning 77 pages resolved a property dispute that arose after a split in the Episcopal Church in South Carolina. (See prior posting.)  The question presented in the cert petition is:

Whether the "neutral principles of law" approach to resolving church property disputes requires court to recognize a trust on church property even if the alleged trust does not comply with the State's ordinary trust and property law.

Anglican Curmudgeon blog discusses the cert. petition at length. [Thanks to Don Nichol for the lead.]

7th Circuit: Hebrew Teacher Covered By "Ministerial Exception" Doctrine

In Grussgott v. Milwaukee Jewish Day School, Inc., (7th Cir., Feb. 13, 2018), the U.S. 7th Circuit Court of Appeals held that the ministerial exception applies to prevent a former Hebrew teacher in a Jewish day school from suing for her firing in violation of the Americans With Disabilities Act.  Plaintiff taught first and second graders. In concluding that plaintiff should be classified as a "ministerial" employee, the court said in part:

... it is sufficient that the school clearly intended for her role to be connected to the school’s Jewish mission....  Milwaukee Jewish Day School expected Grussgott to follow its expressly religious mission and to teach the Tal Am curriculum, which is designed to “develop Jewish knowledge and identity in [its] learners.”.... This, combined with the importance of Grussgott’s Judaic teaching experience in her being hired, confirms that the school expected her to play an important role in “transmitting the [Jewish] faith to the next generation.”.... Even if Grussgott did not know this, the purpose of the ministerial exception is to allow religious employers the freedom to hire and fire those with the ability to shape the practice of their faith. Thus, it is the school’s expectation—that Grussgott would convey religious teachings to her students— that matters.

Valentine's Day Remains Controversial In Some Conservative Muslim and Hindu Areas

Again this year, Valentine's Day is countering opposition from conservative religious leaders in some nations.  Voice of America reports that Pakistan's  Electronic Media Regulatory Authority sent instructions to radio and television stations based on a ruling last year by the Islamabad High Court that Valentine's Day is un-Islamic, spreading immorality, nudity and indecency.  PEMRA told its licensees:

Respondents are directed to ensure that nothing about the celebrations of Valentine's Day and its promotion is spread on the Electronic and Print media," PEMRA's directive stated. "No event shall be held on an official level and at any public place. PEMRA is directed to ensure that all the TV channels shall stop the promotion of Valentine's Day forthwith."

Meanwhile, the Indonesian province of South Sulawesi has also continued its ban of the celebration of Valentine's Day. (Jakarta Post). And in the Indian state of  Karnataka, Shri Ram Sena pro-Hindu activists have been burning Valentines in effigy, claiming Valentine's Day as anti-Hindu. (MeriNews). Arab News reports however that Valentine's Day has become one of the most celebrated events in Egypt.

DOE No Longer Investigating Transgender Bathroom Access Complaints

The Department of Education yesterday confirmed that it is no longer investigating civil rights complaints from transgender students who are not allowed to use restrooms that conform to their gender identity.  CNN reports that the Department, implementing its prior withdrawal of Guidance documents issued by the Obama administration, now takes the position that Title IX bars discrimination on the basis of sex, but not on the basis of gender identity. A spokesperson said that Title IX does bar discrimination against transgender students based on sex-based stereotypes, but that longstanding regulations provide that sex-segregated bathrooms are not discriminatory.

Some Allegations About CAIR Stricken From Complaint

In Citizens for Quality Education San Diego v. San Diego Unified School District, (SD CA, Feb. 12, 2018), a California federal district court granted a motion by defendants to strike from plaintiffs' complaint certain allegations regarding the Council on American-Islamic Relations (CAIR).  The motion was filed in a suit alleging that the San Diego school district's anti-Islamophobia initiative is a "discriminatory scheme that establishes Muslim students as the privileged religious group within the school community." The court held that seven allegations claiming a relationship between CAIR and terrorism should be stricken as "impertinent, immaterial, and scandalous."  The court however refused to strike claims relating to CAIR’s views on Israel and Judaism.

Limits On Krishna Lunch Program Upheld

In Krishna Lunch of Southern California, Inc. v. Gordon, (CD CA, Feb. 9, 2018), a California federal district court dismissed a challenge by a Krishna consciousness organization to a UCLA rule that limits it to holding four event per year on the campus.  The organization, Krishna Lunch, wants to offer a lunch program with sanctified food (prasada) 2 or 3 times per week.  The court rejected free exercise, free speech and expressive association challenges to the limitation.  In rejecting plaintiff's expressive conduct claim, the court said in part:

Plaintiffs’ lunch program ... is afforded First Amendment protection only if there is an intent to convey a particularized message and a great likelihood that message would be understood by those who view it....

The Court previously concluded that Plaintiffs failed to allege a great likelihood their pro-animal/antimeat message would easily be understood by those who view it.  They still have not done so....

... [T]he fact that the Assigned Area (the location where Plaintiffs would conduct prasada) is regularly used by groups for which food distribution is common ... makes it highly unlikely that the ordinary viewer would glean a particularized message from Plaintiffs’ lunch program.

EEOC Obtains Settlement In Religious Discrimination Suit

In a press release last week, the EEOC announced that Decostar Industries, Inc., a Georgia-based auto supplier, has settled a religious discrimination lawsuit filed against it by the EEOC.  The company refused to accommodate an employee's religious beliefs that prevented her from working between sundown Friday and sundown Saturday.  The company will pay the employee damages of $38,500 and has entered a 2-year consent decree which, among other things, requires it to adopt a new religious accommodation policy.

White House Proposed Budget Promotes School Choice

The White House yesterday released its proposed Fiscal Year 2019 Budget (full text).  The Budget includes an increase in Department of Education funding for private (as well as public) school choice, described in part as follows:

The Budget invests $1.1 billion in school choice programs to expand the range of high-quality public and private school options for students, putting more decision-making power in the hands of parents and families.  This investment serves as a down payment toward achieving the President’s goal of an annual Federal investment of $20 billion—for a total of an estimated $100 billion when including matching State and local funds—in school choice funding. The Budget requests $500 million to establish a new school choice grant program to support a wide range of innovative approaches to school choice. These include expanding existing private school choice programs to serve more low-income and at-risk students, developing new private school choice models, or supporting school districts’ efforts to adopt student-based budgeting and open enrollment policies that enable Federal, State and local funding to follow the student to the public school of his or her choice....

Americans United issued a press release criticizing school voucher programs, saying in part:

Vouchers divert desperately needed resources away from the public school system, which educates 90 percent of our students, to fund the education of a few voucher students in private, religious schools. Voucher programs are an ineffective and damaging education policy: they do not improve – and can even lead to declines in – student achievement. They also lack accountability to taxpayers, deprive students of civil rights protections and often provide students with fewer resources than they would have in public schools.

Vouchers violate the religious freedom of both taxpayers and religious schools. The government should not compel any citizen to furnish funds in support of a religion with which he or she disagrees – or even a religion with which he or she does agree. Vouchers also threaten the religious liberty and autonomy of religious schools, as vouchers open them up to government audits, monitoring, control and interference from which they would otherwise be exempt.