6th Circuit: Funeral Home Violated Title VII By Firing Transgender Employee

In EEOC v. R.G & G.R. Harris Funeral Homes, Inc., (6th Cir., March 7, 2018), the U.S. 6th Circuit Court of Appeals reversed the dismissal of a Title VII religious discrimination suit against a Michigan funeral home that fired Aimee Stephens, a transgender employee (funeral director/embalmer) who was in the process of transitioning from male to female. In a 49-page opinion, the court held first that Stephens was illegally fired because of her failure to conform to sex stereotypes.  The funeral home owner decided to fire Stephens "because Stephens was 'no longer going to represent himself as a man' and 'wanted to dress as a woman'."

The court also held that:

discrimination on the basis of transgender and transitioning status violates Title VII.

Moving to defenses raised by the funeral home, including its defense under RFRA which the district court had relied upon, the court held:

the Funeral Home does not qualify for the ministerial exception to Title VII; the Funeral Home’s religious exercise would not be substantially burdened by continuing to employ Stephens without discriminating against her on the basis of sex stereotypes; the EEOC has established that it has a compelling interest in ensuring the Funeral Home complies with Title VII; and enforcement of Title VII is necessarily the least restrictive way to achieve that compelling interest.

Explaining its rejection of defendant's claim of a substantial burden under RFRA, the court said in part:

...simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA. We presume that the “line [Rost] draw[s]”—namely, that permitting Stephens to represent herself as a woman would cause him to “violate God’s commands” because it would make him “directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift,” ... —constitutes “an honest conviction.”...  But we hold that, as a matter of law, tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.

Slate reports on the decision. [Thanks to Steven H. Sholk and Tom Rutledge for the lead.] 

Suit Filed Over Assets of Michigan-Based Communal Sect

The Detroit News this morning reports on a lawsuit that has been filed in an Oakland County, Michigan trial court over millions of dollars of assets of the Israelite House of David (IHOD).  IHOD was a communal religious sect created in 1903 and based in Benton Harbor, Michigan.  Members of the sect were required to remain celibate, and apparently only three members of the sect (one of whom is very ill) remain.  The suit was filed by Charles Ferrel who lives in Hawaii and was excommunicated-- he says wrongfully-- five years ago.  He alleges that defendants (two of the remaining members) have taken $50 million in assets from IHOD.  The sect's assets are located in Michigan, Hawaii and Australia,  Australia was envisioned by the sect as the place where its members would relocate when the world collapsed as predicted in the Book of Revelation.  In the suit, plaintiff seeks reinstatement as a member and control of the assets.  Alternatively he asks that the assets be turned over to the state of Michigan for it to dispose of them according to law.

British Court Issues FGM Protection Order To Protect 1-Year Old

According to the Manchester Evening News this week, a Family Court judge in Manchester, England has entered an "FGM protection order" at the request of social workers.  The order prohibits a 1-year old girl's family from flying the child back to India, their country of origin, for purposes of female genital mutilation.  The child's three older sisters had previously been flown to India for the procedure.  FGM protection orders have been available from British judges for about three years. (Background on obtaining an FGM Order).

Justice Department Sues Over County Nursing Home's Procedure For Obtaining Flu Shot Exemption

The Justice Department announced yesterday that it has filed a religious discrimination suit against a Wisconsin county because of the religious accommodation policy of a county-owned nursing home.  The complaint (full text) in United States v. Ozaukee County, Wisconsin, (ED WI, filed 3/6/2018), challenges the nursing home's requirement that a religious exemption for staff from the requirement to obtain a flu shot is available only if the staff member furnishes a letter from his or her clergy leader.  Nursing assistant Barnell Williams sought a religious exemption, but was not affiliated with any church or organized religion.  She based her religious objection on her own interpretation of the Bible.  She agreed to receive a flu shot in order to preserve her job.  However, according to the complaint:

Williams suffered severe emotional distress from receiving the flu shot in violation of her religious beliefs, including withdrawing from work and her personal life, suffering from sleep problems, anxiety, and fear of “going to Hell” because she had disobeyed the Bible by receiving the shot. These deep emotional problems stemming from having to take the flu shot have plagued Williams to the present. 

Malaysia's Federal Court Says Conversions To Christianity Are For Sharia Courts

In Malaysia last week, the Malaysian Federal Court dismissed appeals by four women who seek to have their names and religious affiliation changed on their national identity cards-- from Muslim to Christian.  Three of the women were originally Christians, but embraced Islam when they married Muslim men.  Now they are divorced and wish to re-embrace Christianity.  The fourth woman is a convert from Islam to Christianity. According to World Watch Monitor, the country's highest civil court held that jurisdiction over these cases is only in the Syariah Courts, even though the Sarawak Shariah Court Ordinance 2001 has no provision for leaving Islam.  CBNNews yesterday further explained the implications of this holding:

In the past, Sharia courts have not allowed conversion from the Islamic faith.

Christian groups said they'll request Sarawak legislators to amend state law to allow conversion. In response, several Islamic groups said they plan to counter Christian conversion efforts by sending more Muslims into the state.

Located in Malaysia's east, Sarawak is about 40 percent Christian. Most Christians are Chinese ethnics. Overall, Christians are about nine percent of the Malaysia population while Muslims are about 61 percent. Leaving Islam is unthinkable for most ethnic Malays who believe to be Malay is to be Muslim.

Missouri Abortion Restriction Challenged In New Suit By Satanic Temple Member

A suit filed last week in a Missouri federal district court by a member of The Satanic Temple challenges Missouri's restrictions on abortion as a violation of the Establishment Clause and Free Exercise Clause of the U.S. Constitution.  The complaint (full text) in Doe v. Greitens, (ED MO,filed 2/28/2018), focuses on the requirements in Missouri law that a woman seeking an abortion be furnished a booklet that states in part that life begins at conception and an abortion will terminate the life of a living human being. It also challenges Missouri's 72-hour waiting period and the requirement that the woman be given the opportunity to view an active ultrasound.  The complaint says that plaintiff does not believe that life begins at conception and holds the religious belief that she alone can decide whether to remove human tissue from her body, according to the best scientific understanding of the world.

As previously reported, the Missouri Supreme Court in January heard oral arguments in a state Religious Freedom Restoration Act challenge by The Satanic Temple to the same abortion restrictions.  As reported by Friendly Atheist blog, one of the purposes of the new lawsuit is to undercut a mootness argument in the Missouri Supreme Court.  The lower court dismissed the lawsuit because the plaintiff was no longer pregnant.  The new suit is presumably intended to show that this challenge is one that is  within the exception for controversies that are capable of repetition but evade review.

Destruction of Native American Burial Site Did Not Violate RFRA

In Slockish v U.S. Federal Highway Administration, (D OR, March 2, 2018), an Oregon federal magistrate judge recommended dismissing a RFRA challenge to the destruction of sacred Native American burial grounds in widening a highway.  Relying on Supreme Court and 9th Circuit precedent, the court held:

As in Lyng and Navajo Nation, plaintiffs contend that the sacred site at issue, which is located on federal land, has been desecrated and destroyed. Yet, as in those cases, plaintiffs have not established that they are being coerced to act contrary to their religious beliefs under the threat of sanctions or that a governmental benefit is being conditioned upon conduct that would violate their religious beliefs. Without these critical elements, plaintiffs cannot establish a substantial burden under the RFRA.

Becket issued a press release announcing the decision.

Recent Articles of Interest

From SSRN:

• Rafael Domingo & Brigitte Basdevant-Gaudemet, Paul Fournier (1853-1935), (in Olivier Descamps and Rafael Domingo, Great Christian Jurists in French History (Cambridge University Press, 2019) (Forthcoming)).
• Rafael Domingo & Javier Martínez-Torrón, Javier, Great Christian Jurists in Spanish History: Introduction, (Rafael Domingo and Javier Martínez-Torrón (eds.), Great Christian Jurists in Spanish History (Cambridge University Press, 2018) (Forthcoming)).
• Berta E. Hernández-Truyol, Religion: Rites vs. Rights Resolving Tensions between LGBT Equality and Religious Liberty, (Sexual Orientation and Gender Identity in International Law (Andreas Ziegler, ed., 2018 Forthcoming)).
• Michael W. McConnell, Dressmakers, Bakers, and the Equality of Rights, (in Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William N. Eskridge, Jr. and Robin Fretwell Wilson, eds. 2018).
• Robbie Skyes & Kieran Mark Tranter, The Rise and Fall of Ziggy Stardust and Natural Law, (International Journal for the Semiotics of Law, 2018).

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

• Robert C. Blitt, The Organization of Islamic Cooperation's (OIC) Response to Sexual Orientation and Gender Identity Rights: A Challenge to Equality and Nondiscrimination Under International Law, (February 28, 2018).
• Paul T. Babie, National Security and the Free Exercise Guarantee of Section 116: Time for a Judicial Interpretive Update, ((2017) 45 Federal Law Review 351).
• Adnan Zulfiqar, Jurisdiction over Jihad: Islamic Law and the Duty to Fight, (West Virginia Law Review, Vol. 120, No. 2, 2017).
• David Abraham, Circumcision: Immigration, Religion, History, and Constitutional Identity in Germany and the U.S., (18 German Law Journal 1745 (2017)).
• P.K. Pandey, Offences Relating to Religion in India, (Law Exam Times, 2017).
• Craig Martin, Striking the Right Balance: Hate Speech Laws in Japan, the United States, and Canada, (Hastings Constitutional Law Quarterly, Vol. 45, No. 3, 2018).

From SmartCILP:

• Gerald Benjamin, The Chassidic Presence and Local Government in the Hudson Valley, 80 Albany Law Review 1383-1464 (2016-2017). 

Recent Prisoner Free Exercise Cases

In Abdul-Aziz v. Lanigan, 2018 U.S. Dist. LEXIS 30258 (D NJ, Feb. 26, 2018), a New Jersey federal district court, while dismissing some claims, allowed Muslim inmates to move ahead with a claim for prospective injunctive relief as to daily Halal meals.

In Fisher v. Schweitzer, 2018 U.S. Dist. LEXIS 33166 (SD OH, March 1, 2018), an Ohio federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 33457, Jan. 2, 2018) and dismissed an inmate's complaint that the warden stopped him from attending church as a way of punishing him for being the victim of an assault.

In Thomas v. Waugh, 2018 U.S. Dist. LEXIS 33541 (ND NY, Feb. 28, 2018), a New York federal magistrate judge recommended allowing plaintiff, an African American of the Jewish-Hebrew faith, to proceed with his 1st Amendment free exercise claim growing out of the refusal by authorities to allow him to wear a tam as an alternative form of Jewish head covering. UPDATE: The magistrate's recommendation was adopted by the court at 2018 U.S. Dist. LEXIS 50282, March 27, 2018.

In Moore v. Jay, 2018 U.S. Dist. LEXIS 34078 (WD OK, March 2, 2018),an Oklahoma federal district court refused at this point to dismiss a suit by a Muslim inmate who alleged that while he agreed to accept kosher food in place of halal food, he was intentionally deceived about the kosher status of the meals he was served.

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.