Mennonite Woman Jailed For Contempt For Refusal To Testify In Capital Case

CBS4 reports that in Arapahoe County, Colorado, a Mennonite woman has been held in contempt and remanded to jail for refusing to testify for the prosecution in the challenge to a conviction by Robert Ray who was sentenced to death for murder.  Ray is claiming inadequate representation at trial. The woman, Greta Lindecrantz, was an investigator for the defense in the original trial. Prosecutors want her to testify to show the adequacy of Ray's lawyers.  However Lindecrantz says that her religious beliefs prohibit her from participating in the killing of another person, and that is what prosecutors are asking her to do.

USCIRF Criticizes Treatment of Iranian Christians Seeking US Asylum

The U.S. Commission on International Religious Freedom issued a press release last week calling attention to some 100 Iranian Christians who have been waiting in Vienna for over a year seeking  asylum in the United States under the special provisions of the Lautenberg Amendment.  That law gives higher priority for refugee status to Iranian religious minorities, including Christians, Zoroastrians and Baha’is. USCIRF says that recent reports indicate these individuals have been denied asylum and could be returned to Iran where they may face discrimination or persecution.

Brazilian Court Rejects Censorship of Play Depicting Jesus As Trans Woman

In Brazil last week, the São Paulo Court of Justice (the highest state court) lifted an emergency injunction that had been issued by a local court banning further performances of the play "The Gospel According to Jesus, Queen of Heaven." The art news site Hyperallergic reports on developments.  The play is a one-woman show that depicts Jesus living in the present as a trans woman.  The controversial show was described by the lower court as  "disrespectful to a religion," "aggressive," and of  an "extremely low intellectual level." The appellate court, however, held that the injunction was unconstitutional censorship that effectively forbids artistic activity.

Religious Organizations Challenge City's New Anti-Discrimination Law

Five churches and a Christian radio station filed suit last week in a Wisconsin state trial court challenging a De Pere city anti-discrimination ordinance that does not clearly exempt religious organizations.  The complaint (full text) in Hope Lutheran Church v. City of De Pere, (WI Cir. Ct., filed 2/22/2018) says that the city has not been willing to assure churches and religious organizations that they will be exempt from the employment and public accommodation provisions of the law that takes effect next month.  The complaint contends:

As a result, the ordinance is likely to be imposed on churches and other religious organizations in a manner that would mandate government orthodoxy in core religious functions, communication, and conduct.

While the law does permit religious organizations to hire on the basis of religion, it does not exempt them from prohibitions on hiring on the basis of sex, marital status, sexual orientation or gender identity.  Fox 11 News reports on the law suit.

Another 3rd Travel Ban Cert. Petition Filed

As previously reported, last month the U.S. Supreme Court granted certiorari in Trump v. Hawaii, a challenge to the third version of President Trump's travel ban.  In light of that, plaintiffs who were largely successful in a similar challenge in the 4th Circuit (see prior posting) have now filed a petition for certiorari (full text) with the Supreme Court, telling the Court:

The court of appeals denied the cross-appeal below, which argued that the preliminary injunction should not have been limited to individuals with a bona fide relationship with a U.S. person or entity.  This petition seeks certiorari on that question, which is not presented in Hawai‘i. In addition, this petition raises the same four questions already before the Court in Hawai‘i, and requests that the cases be consolidated once again.

Muslim Advocates issued a press release announcing the filing of the cert. petition.

Satanic Temple Sues City Over Invocation Policy

The Satanic Temple last week filed a federal lawsuit against the city of Scottsdale, AZ, challenging on federal and state constitutional grounds the invocation practices of the city.  The complaint (full text) in The Satanic Temple v. City of Scottsdale, Arizona, (D AZ, filed 2/23/2018), alleges that City Council meetings are regularly opened by prayers delivered only by members of Judeo-Christian faiths. An invocation originally scheduled to be given by a member of the Satanic Temple was cancelled, using the allegedly pretextual reason of connection to the community. Subsequently the mayor touted stopping the Satanists in an election pamphlet. The Scottsdale Independent reports on the lawsuit.

2nd Circuit En Banc: Title VII Covers Sexual Orientation Discrimination

In a 10-3 en banc decision yesterday, the U.S. 2nd Circuit Court of Appeals, overturning prior 2nd Circuit precedent, held that "sexual orientation discrimination constitutes a form of discrimination 'because of . . . sex,' in violation of Title VII" of the 1964 Civil Rights Act.  In Zarda v. Altitude Express, Inc., (2d Cir., Feb. 26, 2018), Chief Judge Katzmann filed the majority opinion which concluded that (1) sexual orientation discrimination is motivated in part by sex and thus is a subset of sex discrimination; (2) sexual orientation discrimination involves gender stereotyping; and (3) sexual orientation discrimination involves associational discrimination.  Only four other judges joined this opinion in full.

Judge Pooler, without a separate opinion, joined the gender stereotyping and associational discrimination rationales.  In concurring opinions, Judge Jacobs and Judge Sack agreed only with the associational discrimination approach.  Judge Cabranes concurred only in the judgment, saying sexual orientation is a function of sex.  Judge Lohier concurred on the basis of the majority's textualist approach.
Judges Lynch, Livingston and Raggi dissented based largely on legislative history and the intent of the drafters of Title VII. 

In the case, the Justice Department and the EEOC had filed amicus briefs taking opposite positions from each other.  (See prior posting.)  AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• David Bleich, Mitochondrial DNA Replacement: Moral and Halakhic Concerns, (International Journal of the Jurisprudence of the Family, Forthcoming).
• SpearIt, Legal Punishment As Civil Ritual: Making Cultural Sense of Harsh Punishment, (ECI Interdisciplinary Journal for Legal and Social Policy, Vol. 5 [2017], Iss. 1, Art. 1).
• Richard R. Carlson, The Sincerely Religious Corporation, (January 31, 2018).
• Desirée C. Schmitt, The Doctrine of Consular Nonreviewability in the Travel Ban Cases: Kerry v. Din Revisited, (February 2018).
• Joanna C. Schwartz, The Case Against Qualified Immunity, (Notre Dame Law Review, Forthcoming).
• Teri Dobbins Baxter, Child Marriage as Child Abuse and Constitutional Violation, (February 1, 2018).
• Muhammad Ahmad, Jihad, Jihadi Organizations and Liberation Struggle, (Hazara Islamicus, 6:2 (2017), 15-31).
• Muhammad Mehmood, Artificial Insemination in Shari’ah: A Case of Test-Tube Baby in Shari’ah and Its Legal Status in Pakistan, (Pakistan Annual Research Journal, 2017).

From SmartCILP:

• Angela C. Carmella, Catholic Institutions in Court: The Religion Clauses and Political-Legal Compromise, [Abstract], 120 West Virginia Law Review 1-94 (2017).

Recent Prisoner Free Exercise Cases

In Dunham v. Wainwright, (5th Cir., Feb. 22, 2018), the 5th Circuit affirmed the dismissal of an inmate's complaint that limits on the number of letters he can send at state expense interferes with his right to send correspondence to religious organizations.

In Jordan v. Commonwealth, (VA Sup. Ct., Feb. 22, 2018), the Virginia Supreme Court upheld a lower court's refusal to allow an inmate to change his name after he underwent a religious conversion. The inmate conceded that the denial would not hinder his free exercise of religion.

In Gillen v. Parker, 2018 U.S. Dist. LEXIS 26881 (MD TN, Feb. 20, 2018), a Tennessee federal magistrate judge recommended upholding a prison's requirement that Musliim inmates must register their religion in order to participate in Ramadan and Eid al-Fitr celebrations.

In Clemens v. Warden, 2018 U.S. Dist. LEXIS 27146 (ED PA, Feb. 20, 2018), a Pennsylvania federal district court dismissed an inmate's complaint that one of his two Bibles was confiscated.

In Dawdy v. Allen, 2018 U.S. Dist. LEXIS 27207 (ED MO, Feb. 21, 2018), a Missouri federal district court allowed a Jewish inmate to move ahead with a variety of complaints regarding the availability of kosher meals on holidays and the Sabbath; the requirement that there be 5 members for a religious community to have access to materials and services; and the denial of canteen funds for Jewish needs.

In Thomas v. Lakin, 2018 U.S. Dist. LEXIS 27576 (SD IL, Feb. 21, 2018), an Illinois federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 27639, Jan. 22, 2018) and dismissed as moot an inmate's complaint that his requests for a copy of the Qur'an, a prayer mat, religious services, and a religious diet were denied.

In Hartney v. Butcher, 2018 U.S. Dist. LEXIS 28765 (SD TX, Feb. 21, 2018), a Texas federal district court dismissed a Native American inmate's complaint that some of his religious articles were confiscated.

In Hearns v. Gonzales, 2018 U.S. Dist. LEXIS 28959 (ED CA, Feb. 22, 2018), a California federal magistrate judge allowed a Muslim former inmate to move ahead with his retaliation and free exercise claims growing out of a correctional officer's pouring bleach on, and confiscating, his prayer rug.

New Jersey Limit On Activities of Religious Cemeteries Is Upheld

In Roman Catholic Archdiocese of Newark v. Christie, (D NJ, Feb. 23, 2018), a New Jersey federal district court rejected due process and equal protection challenges to a 2015 New Jersey law that prohibits private religious cemeteries from selling headstones, vaults and monuments.  The law was enacted to extend to religious ceremonies the separation of industries law that previously applied only to non-religious cemeteries.  AP reports on the decision.

Christian Leaders Close Church of Holy Sepulcher In Protest of Israeli Tax and Land Policies

Greek Orthodox, Roman Catholic and Armenian church leaders have closed the Church of the Holy Sepulcher (believed to be the site of Jesus' crucifixion and burial) in Jerusalem in protest of two legal moves by Israeli government officials. YNet News today describes the disputed actions:

As part of a battle with Finance Ministry over budgets to the capital, the Jerusalem Municipality informed the Finance, Interior and Foreign ministry and the Prime Minister's Office that it had started collecting property tax debts of more than NIS 650 million from some 887 properties across the city which belong to churches and United Nations institutions.

Municipality officials said these properties did not include houses of worship, which are exempt from paying property taxes by law, but rather properties used for non-prayer activities, including commercial activities.

Churches are exempt from paying property taxes as part of an agreement with the state, but the Jerusalem Municipality says it is not being compensated by the state for the money it is losing by not collecting these taxes.

Later on Sunday, an Israeli cabinet committee is due to consider a bill that would allow the state to expropriate land in Jerusalem sold by churches to private real estate firms in recent years.

The stated aim of the bill is to protect homeowners against the possibility that private companies will not extend their leases. The churches, major landowners in the city, say such a law would make it harder for them to find buyers for their land.

A statement from church leaders calls the moves a "systematic and unprecedented attack against Christians in the Holy Land."

State Appeals Court Rejects Religious Defense By B&B That Rejected Lesbian Couple

In Cervelli v. Aloha Bed & Breakfast, (HI App., Feb. 23, 2018), a Hawaii sate appeals court held that a 3-room bed & breakfast violated the state's public accommodation law when the B&B owner refused on religious grounds to accept a room reservation from a lesbian couple.  The law prohibits discrimination on the basis of sexual orientation. The court held that an exemption in a separate housing discrimination statute for small rooming houses does not apply to the public accommodation law.  The court also rejected defendant's state and federal constitutional privacy and free exercise defenses, finding that the state has a compelling interest in prohibiting discrimination in public accommodations.  Hawaii News Now reports on the decision.

Court Says Enforcing Contraceptive Mandate Against Christian College Violates RFRA

Last October, the Trump Administration issued Interim Final Rules that expanded exemptions from the Affordable Care Act contraceptive coverage mandate for organizations, colleges and businesses that have religious or moral objections to furnishing coverage for employees (or enrolled students), as well as for employees who object to having such coverage. (See prior posting.)  Shortly thereafter, the government entered settlement agreements in at least 13 cases conceding that the mandate imposes a substantial burden on plaintiffs’ exercise of religion and, thus, cannot be legally enforced against them under RFRA. (See prior posting).  In December, two separate federal district courts issued nationwide preliminary injunctions against enforcement of the Trump Administration's expanded exemptions. (See prior postings 1, 2).

Now this week in Wheaton College v. Azar, (ND IL, Feb. 22, 2018),  an Illinois federal district court granted Wheaton College a permanent injunction barring enforcement against it of the contraceptive coverage mandate to the extent that the mandate violates Wheaton College's conscience.  Wheaton is a Christian liberal arts college.  The court's decision came after the government conceded that enforcement of the mandate against the college would violate the Religious Freedom Restoration Act. Becket issued a press release announcing the decision.

Christian Group Challenges College's Speech Zone Policy

A lawsuit was filed this week in a Georgia federal district court by a Christian apologetics club against administrators of Kennesaw State University challenging the school's speech zone policy.  The complaint (full text) in Ratio Christi of Kennesaw State University v. Olens, (ND GA, filed 2/20/2018) complains that the school would not allow the group to set up a pro-life display on the Campus Green.  Instead it limited the display to a small area set aside as a "speech zone." The suit alleges in part:

Defendants prohibit individual students from reserving space on campus and require registered student organizations (“RSO”) to submit reservation requests between three and thirty days in advance.... These policies give KSU officials unbridled discretion, both over whether to grant, deny, or modify an RSO’s reservation request and over whether and how much to charge in security fees, and they quarantine any expressive activities KSU officials deem “controversial” to the small, less accessible “speech zone.”

ADF issued a press release announcing the filing of the lawsuit.

College Coach Sues Alleging He Was Not Hired Because of His Jewish Heritage

A Title VII lawsuit was filed in Louisiana federal district court this week by a former assistant football coach at the Baptist-affiliated Louisiana College.  Plaintiff Joshua Bonadona, whose mother is Jewish, was raised in the Jewish religion.  He converted to Christianity while a student at Louisiana College, and was employed as an assistant football coach there for two years after he graduated.  He then went to Southeast Missouri State University for graduate work combined with a coaching position.  Two years after that he applied for an Assistant Coach opening that had arisen back at Louisiana College.  The complaint (full text) in Bonadona v. Louisiana College,  (WD LA, filed 2/21/2018), alleges that Bonadona received assurances from Louisiana College's head coach that he would be hired for the position.  In reliance on that he resigned his Southeast Missouri position.  However Louisiana College president, Dr. Rick Brewer, vetoed the hiring because of Bonadona's "Jewish blood." The lawsuit contends:

People of Jewish heritage are protected as a distinct race under Title VII of the Civil Rights Act of 1964.  Sharre Tefila Congregation v. Cobb, 481 U.S. 615 (1987).  As such, employment discrimination against an individual based upon his Jewish ethnic heritage is prohibited under 42 U.S.C. 2000e-2.

Yahoo Sports and the Bayou Brief report on the lawsuit.

UPDATE: Louisiana College issued a statement denying allegations in the lawsuit.

Americans United Names New Executive Director

Americans United for Separation of Church and State announced yesterday that  Rachel K. Laser has been appointed its new Executive Director.  Laser has had extensive experience in non-profit advocacy, having worked for Planned Parenthood, the National Women’s Law Center, Third Way and the Religious Action Center of Reform Judaism.  She succeeds Rev. Barry W. Lynn who retired last year after 25 years as AU's leader. Washington Post carries an extensive article on Laser's appointment. [Thanks to Michael Lieberman for the lead.]

Supreme Court Defines Prisoner Contributions To Attorney Fee Awards

The U.S. Supreme Court yesterday in Murphy v. Smith, (Sup. Ct., Feb. 21, 2018), in a 5-4 decision, decided on the proper interpretation of a statutory provision relating to award of attorneys' fees in damage actions by prisoners, including actions alleging a violation of an inmate's First Amendment free exercise rights.  At issue is the provision in 42 USC § 1997e(d) relating to the amount an inmate must contribute out of his or her recovery toward attorneys' fees when the inmate has been awarded such fees.  The majority, in an opinion by Justice Gorsuch, held that the statutory reference to the inmate's contribution of up to 25% of the monetary judgment toward satisfying the award does not give the trial court discretion to require less than 25%.  Justice Sotomayor, joined by Justices Ginsberg, Breyer and Kagan, dissented arguing that the statute permits the exercise of discretion in determining the percentage (up to 25%) of a judgment that must be applied toward an attorneys' fee award.

Rev. Billy Graham Dies At Age 99

The New York Times chronicling his life, reports this morning:

The Rev. Billy Graham, a North Carolina farmer’s son who preached to millions in stadium events he called crusades, becoming a pastor to presidents and the nation’s best-known Christian evangelist for more than 60 years, died on Wednesday at his home. He was 99.

Suit Challenges Ban On Lesbian Foster Parents In Federally Funded Refugee Program

A lawsuit was filed yesterday against the federal government and the U.S. Conference of Catholic Bishops challenging discrimination against same-sex couples in administration of the Unaccompanied Refugee Minor Program and the Unaccompanied Alien Children Program. The complaint (full text) in Marouf v. Azar, (D DC, filed 2/20/2018), alleges that various federal agencies use taxpayer funds to finance grants to the USCCB to implement these programs based on impermissible religious criteria.  Plaintiffs, a lesbian couple, were told by Catholic Charities of Fort Worth, a sub-grantee of USCCB, that they did not qualify to become foster parents of an unaccompanied refugee child. An official of the organization told them that foster parents must "mirror the holy family."  The complaint alleges in part:

By working to ensure that none of the children for which they are responsible are placed in homes of same-sex spouses based on USCCB’s religious beliefs, USCCB and its sub-grantees not only discriminate against same-sex spouses, but also effectively erase the non-Catholic identities and beliefs of many of the unaccompanied refugee children for which they are responsible. This conduct potentially increases those children’s alienation and vulnerability, while denying them access to loving homes that could serve them best—all at federal taxpayers’ expense.

Lambda Legal issued a press release announcing the filing of the lawsuit. Washington Post reports on the filing of the suit.

Injunction Against Serving As Temple Director Upheld

In Sikh Temple Turlock, California v. Chahal, (CA App, Feb 20, 2018), a California state appeals court upheld the trial court's resolution of a governance dispute between two factions in a Sikh Temple.  As described by the court:

Following a bench trial, the [trial] court found the election of the First Board was valid. The court further concluded the April 2013 election did not occur and that appellants took control of the Temple by usurpation. Accordingly, the trial court reinstated the First Board and ordered that a judicially supervised election take place. The court also enjoined five of the appellants from serving as officers or directors of the Temple for five years.

The appeals court rejected challenges to the trial court's decision, including a a free exercise challenge to the 5-year injunction.  The court said in part:

 Appellants submitted evidence that a Sikh has a general obligation to perform selfless service. However, there was no testimony that serving on the board is itself a religious act, constitutes a religious practice, or is required to satisfy the seva obligation. In fact, the evidence suggests otherwise.... Thus, appellants’ claim that the ban infringes on the free exercise of their religion has no support in the record.