Recent Articles and Books of Interest

From SSRN:

• Zalman Rothschild, Free Exercise's Outer Boundary: The Case of Hasidic Education, (119 Colum. L. Rev. F. 200 (2019)).
• Helen Pausacker & Amanda Whiting, Special Issue: Legal Regimes of Sexual Orientation and Gender Identity in Asia, (Australian Journal of Asian Law, Vol. 20, No. 1, Article 1, 2019).
• Stephen Mark Bainbridge, Christianity and Corporate Purpose, (UCLA School of Law, Law-Econ Research Paper No. 19-10 (2019).
• John Makdisi, Aquinas's Prohibition of Killing Reconsidered, (57 J. Cath. Leg. Stud. 67 (2018)).
• Ricardo Perlingeiro & Amanda da Fonseca de Oliveira, 'Laicidade' in Brazil as a Booster to Religious Freedom, (2019).
• Kathryn Chan, Constitutionalizing the Registered Charity Regime: Reflections on Canada Without Poverty v Canada (AG), (Forthcoming in Canadian Journal of Comparative and Contemporary Law, summer 2020).
• James Fishman, The Private Foundation Rules at Fifty: How Did We Get Them and Do They Meet Current Needs?, (Pittsburgh Tax Review, Forthcoming).

From SSRN (Islamic Law):

• Mushtaq Ahmad, Revisiting the Discourse on Islam and Human Rights, (November 21, 2019).
• Muhtaq Ahmad, Discovering the Law without a Coherent Legal Theory: The Case of the Council of Islamic Ideology, (November 19, 2019).
• Ashraf Booley, Progressive Realisation of Muslim Family Law: The Case of Tunisia, (Potchefstroom Electronic Law Journal, Vol. 22, 2019).

Recent Books:

• Nathan Walker, The First Amendment and State Bans on Teachers' Religious Garb: Analyzing the Historic Origins of Contemporary Legal Challenges in the United States, (Routledge, September 4, 2019).
• Jianlin Chen, The Law and Religious Market Theory: China, Taiwan and Hong Kong, (Cambridge Univ. Press, December 2019).

Prison's Denial of Access To Religious Services As Discipline Is Invalid

In Greenhill v. Clarke, (4th Cir., Dec. 6, 2019),the U.S. 4th Circuit Court of Appeals held that, absent further justification, a prison disciplinary policy which denied a Muslim inmate television access to view weekly Jum'ah services violates his free exercise rights protected by RLUIPA and the 1st Amendment. The court said in part:

The VDOC’s Step-Down Program appears to be a sophisticated, well-conceived program to better inmates’ behavior and their confinement, as well as to improve safety and the overall operation of the prison. But holding inmates’ religious exercise hostage to incentivize their participation in the Program is impermissible under RLUIPA. Access to bona fide religious exercise is not a privilege to be dangled as an incentive to improve inmate conduct, and placing such religious exercise in the category of privilege to be earned is fundamentally inconsistent with the right to religious exercise that RLUIPA guarantees to prisoners.....

The court also held that the prison's grooming policy that precludes growing of a 4-inch beard imposes a substantial burden on the Muslim inmate's religious exercise. [Thanks to Will Esser via Religionlaw for the lead.]

3rd Circuit Affirms Dismissal of Title VII Religious Discrimination Suit

In Darby v. Temple University, (3d Cir., Dec. 4, 2019), the U.S. Third Circuit Court of Appeals affirmed the dismissal of plaintiff's claim under Title VII that he was fired by Temple University because of his religion.  The court said in part:

[Plaintiff] states that he wore a cross on a chain around his neck, that he read the bible on breaks, that he spoke openly about attending church services, and that he was employed at Temple for a lengthy period of time. But none of the evidence he produced is sufficient to reasonably infer that his coworkers knew his Baptist identity. More important, none of it relates directly to the person, Thomas Johnston, who terminated his employment. He does not proffer any evidence to show that Johnston knew of his religious affiliation.

Penn Live reports on the decision.

Missouri AG Supports High School Football Coaches' Prayer Practices

Missouri Attorney General Eric Schmitt this week released a letter (full text) which he sent on Dec. 3 to the superintendent of the Cameron, Missouri School District supporting high school football coaches against charges in a letter (full text) from the Freedom From Religion Foundation . In its Oct. 28 letter, FFRF said in part:

It is our understanding the Cameron High School's head football coach, Jeff Wallace, and assistant football coach, David Stucky, have been holding religious "chapel" services for players before and after football games where coaches pray with players and read and discuss bible verses.  We understand that after games, Coach Wallace holds religious services with players on the fifty-yard line and leads players in prayer.  We understand that Coach Wallace often brings in outside preachers to proselytize to players as well.

It is illegal for public school athletic coaches to lead their teams in prayer or religious worship.

Responding to this, Attorney General Schmitt in his letter said in part:

FFRF is an extreme anti-religion organization that seeks to intimidate local governments into surrendering their citizens' religious freedom and to expunge any mention of religion from the public square....

Our understanding is that no coach or other Cameron official has forced any football player to participate in prayer or taken any action against any player who chose not to participate.   The prayer occurs outside of the football game.  The prayer is not broadcast over stadium loudspeakers, and fans evidently cannot hear any part of the prayer.  The school district reports that it received no complaints from anyone about the prayer, and FFRF does not reference any complainant in their letter.   Evidently, FFRF's threat does not reflect any discomfort with the prayers in the local community.  Rather, it reflects only FFRF's radical agenda. And without a complainant, FFRF lacks standing to sue the school district, no matter how strongly it objects to this voluntary prayer.

 Friendly Atheist blog reports on these developments.

Priest Sues Archdiocese Over Inclusion In List of Accused Clergy

A lawsuit was filed last month in a Missouri state trial court by a former priest who claims that the Archdiocese of St. Louis defamed him when it included his name on a widely circulated list of clergy for whom there are substantiated allegations of sexual abuse of a minor. The complaint (full text) in Toohey v. Archdiocese of Saint Louis, (MO Cir. Ct., filed 11/3/2019) contends that the allegations against plaintiff are false, that the Archdiocese never notified plaintiff of the allegations and never gave him an opportunity to rebut the charges. St. Louis Post Dispatch reports on the lawsuit.

Congress Passes Uyghur Human Rights Policy Act

On Tuesday, Congress gave final passage to S.178, the Uyghur Human Rights Policy Act of 2019 (full text). In part, the bill finds that:

The Government of the People’s Republic of China has a long history of repressing approximately 13,000,000 Turkic, moderate Sunni Muslims, particularly Uyghurs, in the nominally autonomous Xinjiang region. These actions are in contravention of international human rights standards, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

The bill goes on to express the sense of Congress that, among other steps:

the President should condemn abuses against Turkic Muslims by Chinese authorities in Xinjiang and call on Chinese President Xi Jinping to recognize the profound abuse and likely lasting damage of China’s current policies, and immediately close the “political reeducation” camps, lift all restrictions on and ensure respect for internationally guaranteed human rights across the region, and allow for reestablishment of contact between those inside and outside China;....

the Secretary of State should fully implement the provisions of the Frank Wolf International Religious Freedom Act ... and consider strategically employing sanctions and other tools under the International Religious Freedom Act....

The bill will now go to the President for his signature.

A New Wave of Clergy Sex Abuse Cases Is Expected

An AP investigative report published on Tuesday highlights the rash of new clergy sex abuse cases being pursued as 15 states have extended or suspended their statutes of limitations to allow even decades-old child sex abuse claims to be filed:

It's a financial reckoning playing out in such populous Catholic strongholds as New York, California and New Jersey, among the eight states that go the furthest with "lookback windows" that allow sex abuse claims no matter how old. Never before have so many states acted in near-unison to lift the restrictions that once shut people out if they didn't bring claims of childhood sex abuse by a certain age, often their early 20s....

AP interviews with more than a dozen lawyers and clergy abuse watchdog groups offered a wide range of estimates but many said they expected at least 5,000 new cases against the church in New York, New Jersey and California alone, resulting in potential payouts that could surpass the $4 billion paid out since the clergy sex abuse first came to light in the 1980s.

Controversy Over Army Licensed Items With Religious Theme

First Liberty Institute yesterday sent a letter (full text) to the U.S. Army complaining about the Army's order to a private faith-based company that is licensed to produce Army-themed products. (Press release). The Army instructed the company to remove Biblical verses from its popular Shields of Strength (SoS) dog tags. Since 9-11, SoS has produced over 4 million dog tags, the most popular carrying the words of Joshua 1:9: "Have I not commanded you? Be strong and courageous. Do not be afraid; do not be discouraged, for the Lord your God will be with you wherever you go."

The Army's action follows a complaint from the Military Religious Freedom Foundation about the religious content of the Army-licensed products.  First Liberty argues, however:

once the Army creates a limited public forum via a trademark licensing regime and allows private entities such as SoS to obtain licenses, the Army cannot “discriminate against speech on the basis of its viewpoint” in the administration of the trademark licensing regime. The Army is therefore prohibited from discriminating against SoS because of its inclusion of biblical references on its products, in its advertisements, or on its website.....

More recently, in Iancu v. Brunetti the Supreme Court ...  invalidated the Lanham Act’s “immoral or scandalous” clause as viewpoint discrimination.....

Clearly, if a prohibition against trademarking offensive, immoral, or scandalous speech constitutes viewpoint discrimination, then certainly the Army’s prohibition against using religious speech in conjunction with its trademark does, too. This is especially true because the Army routinely grants licenses to similar, non-religious speech.

Former Cardinal McCarrick and Newark Archdiocese Sued By Sex Abuse Victim

Just minutes after a new New Jersey law went into effect opening a 2-year window in which previously time-barred sex abuse cases can be filed, suit was filed in a New Jersey state trial court against former Cardinal Theodore McCarrick and the Catholic Archdiocese of Newark. The complaint (full text) in Bellocchio v. Roman Catholic Archdiocese of Newark, (NJ Super. Ct., filed 12/1/2019), states claims for sexual battery against McCarrick, and for negligence against the Archdiocese. It alleges in part:

31. In approximately 1995 or 1996, when Plaintiff was approximately 13 or 14 years old, McCarrick engaged in unpermitted sexual contact with Plaintiff.

32. McCarrick engaged in a similar course of conduct and pattern of sexual predation of devout Catholic youth under his control.

Washington Post and America report on the lawsuit.

Texas Justice of the Peace Warned Over Her Refusal To Perform Same-Sex Weddings

Last month, the Texas State Commission on Judicial Conduct issued a Public Warning (full text) to Justice of the Peace Dianne Hensley. The Nov. 12 warning reads in part:

Beginning on about August 1, 2016, Judge Hensley and her court staff began giving all same-sex couples wishing to be married by Judge Hensley a document which stated "I'm sorry, but Judge Hensley has a sincerely held religious belief as a Christian, and will not be able to perform any same sex weddings." The document contained a list of local persons who would officiate a same-sex wedding....

... Judge Hensley testified that she would recuse herself from a case in which a party doubted her impartiality on the basis that she publicly refuses to perform same-sex weddings.....

... [T]he Texas State Commission on Judicial Conduct has determined that the Honorable Judge Dianne Hensley ... should be publicly warned for casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person's sexual orientation in violation of Canon 4A(l) of the Texas Code of Judicial Conduct.

Connecticut Rabbi Sentenced To 12 Years In Prison For Sex Abuse of High Schooler

According to the New Haven Independent, a Connecticut trial court judge yesterday sentenced Rabbi Daniel Greer, a once-prominent New Haven religious leader, to 12 years in prison, with 8 years after that on probation. He will also be required to register as a sex offender.  The 79-year old rabbi was convicted on four counts of risk of injury to a minor. The convictions grew out of a series of rapes of a male high school student from 2002 to 2005 while the student was enrolled at Rabbi Greer's New Haven yeshiva. Originally a jury found Greer guilty on four felony counts of child endangerment, but the judge reduced the charges to a lower felony class. Other sexual assault charges were dismissed on technical grounds.  In 2017, a civil jury awarded $21 million in damages against Greer and his yeshiva in a suit by the rape victim.  Little of that has been paid so far.

State Insurance Regulators Target Trinity Health-Care Sharing Ministry

NPR reported earlier this week on enforcement actions by insurance regulators in Texas, Colorado, Washington and New Hampshire against Aliera and its affiliate Trinity HealthShare for violating rules relating to health-care sharing ministries. These plans for sharing health care costs of members are significantly cheaper than standard health insurance policies. Most of the Christian affiliated ministries will not cover abortion services, and offer prayer hotlines for members. The October 30 press release from the New Hampshire Insurance Department announcing its enforcement action states in part:

Trinity represents itself as a health care sharing ministry, which would be exempt from state insurance regulation. A legal health care sharing ministry is a nonprofit organization in existence since December 31, 1999, whose members share a common set of ethical or religious beliefs and share medical expenses among members. [Trinity was not formed until 2018 and did not show it is faith based and limited its membership to those with common beliefs.]

The Department’s Consumer Services Division received dozens of complaints and concerns from consumers. Some people believed they were buying health insurance and did not know they had joined a health care sharing ministry. Many people discovered this when their claims were denied because their medical conditions were considered pre-existing under the plan, or were not covered because they were deemed inappropriate for a “Christian lifestyle.” 

[Thanks to Scott Mange for the lead.]

British Court Enjoins Protests Against School's LGBT Curriculum

In Birmingham City Council v. Afsar, (EWHC, Nov. 26, 2019), a trial judge in the High Court in the British city of Birmingham held that an injunction should be issued limiting the manner in which demonstrators can protest an elementary school's curriculum on LGBT issues. According to the court:

The case has been pleaded and argued in various ways, but at its heart is the argument that the School’s teaching policy – described by the defendants as “the teaching of LGBT issues (ie teaching equalities)” – represents or involves unlawful discrimination against British Pakistani Muslim children at the School, and those with parental responsibility for them ... on grounds of race and/or religion. It is submitted that the core religious, philosophical and cultural values of this group “are centred on heterosexual relationships in marriage; this state of belief does not encompass same sex relationships”. ....

The court held that the Equality Act 2010 excludes from its coverage anything done in connection with the content of curriculum. In any event, the court concluded:

The teaching has been misunderstood and misinterpreted by the defendants, and misrepresented, sometimes grossly misrepresented, in the course of the protests. The matters that have actually been taught are limited, and lawful. 

The court went on:

The evidence – including but not limited to the expert evidence - persuades me that the levels of noise generated by this way of protesting is clearly excessive, amounting to an intrusion into the lives of those at the School and its neighbours that goes well beyond anything that could be justified as proportionate to the aims of persuasion. 

The court held, however, that an earlier injunction banning the use of social media by protesters should be lifted, saying in part:

The speech with which I am here concerned has been expressed in the context of a private, or limited, WhatsApp group. It was not aimed at the teachers, in the sense that they were intended to read it. It has come to their attention only as a result of disclosures made by one or more members of that group. The scale, frequency, nature and impact of the abuse to date, given its context, do not give rise to a sufficiently compelling case for interference.

The court also issued a summary of the decision. The British publication Conservative Women published an article highly critical of the decision.

Court Dismisses Challenges To Indiana's RFRA

Last week an Indiana state trial court judge ruled that three Christian educational and advocacy organizations lack standing to challenge the constitutionality of Indiana's version of the Religious Freedom Restoration Act that excludes from its coverage conduct that discriminates, among other things, on the basis of sexual orientation or gender identity. The court also held that plaintiffs' claims are not ripe for adjudication. WIBC News reports on the decision. Here is the complaint filed in the case.

Muslim Woman Sues Theater Over Pepperoni Pizza

Redondo Beach Patch reports on a lawsuit filed last week by an observant Muslim woman against a California movie theater chain over a pizza served at the theater. The paper recounts in part:

... [Plaintiff claims] she ordered a cheese pizza at a Redondo Beach theater in 2017 and instead was given pepperoni pizza, which she accidentally ate a portion of in the dark auditorium, violating her religious laws against consuming pork.

Kiara Rivers is suing American Multi-Cinema Inc., alleging religious discrimination, battery, intentional and negligent infliction of emotional distress and negligence....

"As a devout Muslim, (Rivers) considers the consumption of pork a violation of her duties as a Muslim and detrimental to her spiritual purity to the point that nothing can be done to restore her spiritual integrity," the suit states.

Presidential Proclamation On Thanksgiving Issued

Yesterday President Trump issued the Presidential Proclamation on Thanksgiving Day, 2019 declaring today a National Day of Thanksgiving. The Proclamation reads in part:

As we gather today with those we hold dear, let us give thanks to Almighty God for the many blessings we enjoy.  United together as one people, in gratitude for the freedoms and prosperity that thrive across our land, we acknowledge God as the source of all good gifts.  We ask Him for protection and wisdom and for opportunities this Thanksgiving to share with others some measure of what we have so providentially received.

Some Factional Church Claims Subject To Ecclesiastical Abstention Doctrine

In El Pescador Church, Inc. v. Ferrero, (TX App., Nov. 25, 2019), a Texas state appeals court held that the ecclesiastical abstention doctrine requires dismissal of a claim by one church faction that defendants wrongfully exercised control over property of the non-denominational church by changing banks, changing locks, taking control of the tithe and "subjecting any and all parities [sic] that disagree with these actions to intimidation, ridicule, and humiliation directed from the pulpit to the faithful." The court said in part:

[T]he evidence that the Church used to respond to the motion for summary judgment shows how its case is inextricably intertwined with ecclesiastical issues. That evidence consists [in part of] ... meeting minutes [which] state that "the congregation requested to place in discipline the Treasurer--Armando Oaxaca and for him to be destitute of the position of Treasurer." The minutes conclude that "Oaxaca can't function as Treasurer since he is not attending services or tithing to the congregation." Discipline of church members, particularly based on a scriptural concept such as tithing, are uniquely ecclesiastical....

The other claims--fraud and breach of fiduciary duty, equally implicate facts that are inextricably intertwined with internal church governance, the role of the pastor in church affairs, membership in the congregation, and statements of the pastor from the pulpit....

 Certain other claims however are not subject to dismissal:

The Church also sued Nunez for advice that he gave to Hector Ferrero and the congregation. He is alleged to have provided accounting and legal advice while not being licensed in those occupations. There is no allegation or evidence that his advice was ecclesiastical in nature, but rather the pleading alleges it is related to corporate governance under the corporation's articles of incorporation and Texas law. We view those claims differently from the allegations against the church officers and congregants.....

Imam's Interpretation of Halal Held Relevant To Sincerity of Inmate's Beliefs

In Russell v. Pallito, (D VT, Nov. 25, 2019), a Vermont federal district court refused to exclude the testimony of Taysir Al-khatib, the main imam of the Islamic Society of Vermont, who was to be presented as an expert on Islamic dietary laws.  The issue arose in a suit by Justin Russell, a Muslim pre-trial detainee who claimed that Department of Corrections policies fail to provide him and similarly situated inmates a diet that meets their religious requirements. According to the court:

Russell contends that Al-khatib’s expert testimony regarding Islamic dietary law is irrelevant because the proper inquiry for purposes of his claim is whether his beliefs regarding Islamic dietary law are sincerely held, not whether they are correct as a matter of religious doctrine....

More specifically, according to Russell, “[t]he question of whether Muslims may properly subsist on a kosher diet is essentially a question of religious interpretation,” and “the validity of such interpretation is not a fact of any consequence in determining the action, and is therefore irrelevant.”

The court went on to hold:

The Court recognizes Russell’s concern regarding conflation of the sincerity and verity of his religious beliefs, and remains cognizant of its duty to refrain from adjudicating intra-faith disputes.....

But that fact alone does not render Al-khatib’s testimony about Islamic dietary requirements irrelevant as a matter of law.... Rather, evidence that some members of Russell’s religious community hold a contrary interpretation of Islamic dietary requirements may be valuable to a jury in assessing the sincerity or religious nature of Russell’s beliefs as well as whether Defendants’ actions substantially burdened those beliefs.

Disabled Veteran Sues Over Personalized License Plate

A lawsuit was filed Monday in a Kentucky federal district court by Shaun DeWaters, a disabled Marine Corps combat veteran, against the Kentucky Transportation Cabinet. As reported by the Lexington Herald-Leader, the Kentucky Division of Motor Vehicle Licensing informed DeWaters that the personalized license plate which he has had for more than 12 years no longer complies with Kentucky law. According to the state, the plate which reads "INFDL" violates the ban on personalized plates that discriminate, represent a political belief or promote a specific faith, religion or anti-religion.  DeWaters says that troops in Iraq and Afghanistan took the label "Infidel" as a badge of honor after the enemy used the label for American troops. The lawsuit alleges that the ban on DeWaters license plate that was invoked when DeWaters attempted to transfer it to a new vehicle amounts to an infringement of 1st Amendment free speech rights.

Greek Orthodox Archdiocese Official Arrested On Wire Fraud Charges

The U.S. Attorney's Office for the Southern District of New York announced on Monday the arrest on wire fraud charges of Jerome Dimitriou, former Executive Director of an unnamed non-profit organization. The National Herald  identifies Dimitriou as former Executive Director of Administration of the Greek Orthodox Archdiocese of America for 19 years until he was fired in 2017. According to the SDNY release:

DIMITRIOU is charged with committing two embezzlement schemes:  In one, he allegedly embezzled more than $488,000 from Organization-1 by directing subordinates to issue him unauthorized excess salary payments; in the other, he allegedly charged hundreds of personal expenses to his Organization-1 credit card, without authorization, costing Organization-1 at least tens of thousands of dollars.