Inmate Is Not "Employee" Under Title VII

A Texas federal magistrate's decision in Smith v. Gonzales, 2018 U.S. Dist. LEXIS 31836 (ND TX, Feb. 2, 2018), adopted by the court at 2018 U.S. Dist. LEXIS 30160 (Feb. 26, 2018), rejected a Title VII religious discrimination claim filed by a state prison inmate.  Plaintiff David Wayne Smith alleged religious discrimination because he was required to work in his prison job on the Sabbath. The court, relying in part on a 1986 EEOC opinion, held that the inmate is not an "employee" for purposes of Title VII of the 1964 Civil Rights Act.

Alabama Judicial Ethics Provision Enjoined In Part

In Parker v. Judicial Inquiry Commission of the State of Alabama, (MD AL, March 2, 2018), an Alabama federal district court held that a provision in Alabama's Canon of Judicial Ethics, because of its breadth, violates the free speech provisions of the 1st Amendment.  At issue was the provision that: "A judge should abstain from public comment about a pending or impending proceeding in any court...."  A complaint had been filed against Alabama Supreme Court Justice Tom Parker over his comments on the impact of the U.S. Supreme Court's Obergefell decision on an earlier Alabama Supreme Court order barring probate judges from issuing licenses for same-sex marriages. The court issued a preliminary injunction barring the Judicial Inquiry Commission

from enforcing Alabama Canon of Judicial Ethics 3A(6) to the extent that it proscribes public comment by a judge about a pending or impending proceeding in a court outside the state of Alabama, [or] ... proscribes public comment by a judge that cannot reasonably be expected to affect the outcome or impair the fairness of a proceeding in Alabama.

Liberty Counsel issued a press release announcing the decision.

4th Circuit Denies En Banc Review On Bladensburg Cross

The U.S. 4th Circuit Court of Appeals, by a vote of 8-6, has denied an en banc rehearing on the constitutionality of the 40-foot high Bladensburg Cross that has stood for over 90 years at an intersection in Prince Georges County, Maryland. Last October a panel of the 4th Circuit, in a 2-1 decision, held the Latin Cross, created as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting.) Yesterday in American Humanist Association v. Maryland- National Capital Park Planning Commission, (4th Cir., March 1, 2018), the full court's denial of review was accompanied by 4 separate opinions-- one a concurring opinion and 3 dissenting opinions.

Judge Wynn's concurring opinion said in part:

To allow this Court to circumscribe the Bladensburg Cross’s meaning and power, as the Commission and its amici request, would empower this Court to diminish the Latin cross’s many years of accrued religious symbolism, and thereby amount to the state degradation of religion that the Framers feared and sought to proscribe. Indeed, were this Court to accept that the Latin cross’s predominantly sectarian meaning could be overcome by a plaque, a small secular symbol, and four engraved words, as the Commission maintains, we would necessarily grant the government—and the judiciary, in particular—broad latitude to define and shape religious belief and meaning. Surely, the Constitution does not contemplate endowing the government with such extraordinary power to determine and prescribe individual citizens’ religious beliefs and religious communities’ joint understandings, appreciations, and teachings.

Judge Wilkinson's dissent, joined by Chief Judge Gregory and Judge Agee, said in part:

The dead cannot speak for themselves. But may the living hear their silence. We should take care not to traverse too casually the line that separates us from our ancestors and that will soon enough separate us from our descendants. The present has many good ways of imprinting its values and sensibilities upon society. But to roil needlessly the dead with the controversies of the living does not pay their deeds or their time respect.

This memorial and this cross have stood for almost one full century. Life and change flow by the small park in the form of impatient cars and trucks. That is disturbance enough. Veterans Memorial Park may not be Arlington National Cemetery, but it is the next thing to it. I would let the cross remain and let those honored rest in peace.

Washington Post, reporting on the decision, says that the case will be appealed to the Supreme Court.

St. Cloud Diocese To File For Bankruptcy

The Diocese of St. Cloud, Minnesota announced this week that it is planning to file for Chapter 11 bankruptcy reorganization in response to 74 claims filed against it for past sexual abuse of minors.  The claims came after the state legislature in 2013 created a 3-year window for abuse suits from past years.  According to the Star-Tribune, this will be the fourth Minnesota Catholic institution to file for bankruptcy.

Tunisian Court Rejects Imams' Challenge To LGBTQ Radio Station

Slate reports on a Feb. 14 decision by a court in Tunisia dismissing a lawsuit filed by a union representing imams.  The suit asked the court to request the Tunisian Internet Agency to block access to the online LGBTQ radio station Shams Rad.  Petitioners argued that the station threatens "social and family values."  The court ruled that the union lacks standing to bring the suit, and that the radio station had not violated the rights of others.

Controversial Bill In Iceland Would Criminalize Muslim and Jewish Circumcision Practices

The New York Times this week reported on the controversy in Iceland over a bill introduced in the country's Parliament last month that would make circumcision of young boys for non-medial reasons illegal.  The bill, which would impose a penalty of up to 6 years in prison for violation, was introduced by four political parties and is backed by many doctors and nurses in Iceland.  According to the Times:

[O]rganizations representing Muslims and Jews, which practice male circumcision as a matter of religious tradition, are questioning the lawmakers’ motives. The Roman Catholic Church in the European Union has also objected that the legislation is an attack on religious freedom.....

The bill is perceived as an anti-immigration issue directed against Muslims, Rabbi [Pinchas] Goldschmidt [President of the Conference of European Rabbis] said, and "we the Jews are the collateral damage."

It is "basically saying that Jews are not anymore welcome in Iceland," he said.

Trump's Remarks As Rev. Billy Graham's Body Lies In State At Capitol

President Trump delivered remarks (full text) yesterday at the U.S. Capitol as Rev. Billy Graham's body was laid in state there.  He said in part:

Around us stand the statues of heroes who led the nation in prayer during the great and difficult times, from Washington to Lincoln to Eisenhower to King.

And, today, in the center of this great chamber lies legendary Billy Graham, an ambassador for Christ who reminded the world of the power of prayer and the gift of God’s grace.

Today we honor him as only three private citizens before him have been so honored.

New Report On 2017 Anti-Semitic Incidents

The ADL this week released its 2017 Audit of Anti-Semitic Incidents. The report summarizes its major findings in part as follows:

ADL identified 1,986 anti-Semitic incidents perpetrated throughout the United States in 2017. This is an increase of 57% over the 1,267 incidents reported in 2016. For the first time since at least 2010, an incident occurred in every US state. The states with the highest numbers of incidents were New York (380 incidents), California (268 incidents), New Jersey (208 incidents), Massachusetts (177), Florida (98), and Pennsylvania (96). These states combined made up more than half (62%)of the total number of incidents. The number of incidents tends to correlate with large Jewish populations.

Wall Street Journal reports on the new data. [Thanks to Steven H. Sholk for the lead.]

European Court Says Psychiatric Patient's Religious Rights Were Infringed

In a Chamber Judgment in Mockute v. Lithuania, (ECHR, Feb. 27, 2018), the European Court of Human Rights held that a Lithuanian woman's privacy and religious exercise rights were violated by the psychiatric hospital to which she had been admitted.  The facts were summarized by the dissenting opinion:

In 2003 the applicant, who at the time was 30 years old and had a long history of mental problems, after a mental breakdown was forcibly placed in a psychiatric hospital, where she spent 52 days. While being held there, psychiatrists disclosed information about the applicant's health and private life to a journalist as well as information about her health and treatment to her mother. In a subsequent television programme, parts of this information were released. The applicant furthermore claimed that the regime at the psychiatric hospital did not allow her to practise the religion of the Ojas Meditation Centre, the Lithuanian branch of the Osho religious movement, and that the psychiatrists had worked on her to convince her to be critical of her non-traditional religion.

The court held by a unanimous vote that her privacy rights under the European Convention on Human Rights were violated, and by a vote of 5-2 that her religious exercise rights were infringed.  The Court's press release on the case describes the holding on religious freedom:

[T]wo factors were decisive in concluding that there had been an interference with her right to freedom of religion. First, she had been held unlawfully at the hospital for more than 50 days and had for the most part been under a very strict regime, such that she had been unable either to practise meditation or to visit the Osjo Meditation Centre. Second, the doctors had tried to “correct” her to persuade her to abandon her religion, which they considered as “fictitious”, and she had felt constrained to obey them, even on pain of receiving a diagnosis which would have made her unemployable.

Law & Religion UK has more on the decision.

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."