Church Sues To Enforce Bequest

The Tampa Bay Times reported yesterday on a lawsuit filed by Christ the King Catholic Church, one of the Tampa, Florida area's most prominent churches, against Teresa "Terri" Gaffney, a lawyer who is prominent in the Hillsborough County Republican Party.  The church says that Gaffney's father John J. Gaffney who died in 2011 had directed in his will that his house be sold, the proceeds used to pay any remaining expenses for his care, and the remainder be distributed to the Church.  But instead, Theresa Gaffney transferred the house to her daughter.  Gaffney says the house was never willed to the Church, and that the Church is suing her because her children have been raised in the Jewish faith of her husband. The house is valued at $344,000.

Michigan Supreme Court Dismisses Chabad Property Dispute On Statute of Limitations Grounds

In Chabad-Lubavitch of Michigan v. Schuchman, (MI Sup. Ct., May 20, 2015), the Michigan Supreme Court in a brief opinion reversed the state court of appeals in a dispute between Chabad-Lubavitch of Michigan and a local Chabad organization over ownership of a Chabad center in West Bloomfield. The parent organization claimed that the property should have been titled in its name. In the case, the appeals court had rejected defendants' statute of limitations defense, holding that the statute was equitably tolled during the time that the parties were engaged in Chabad's mandatory ecclesiastical dispute resolution process. (See prior posting.)  Reversing, the Michigan Supreme Court said "there are no grounds on which to equitably toll the statute of limitations."

27 Members of Congress Urge New AG To Help Strengthen Anti-Profiling Ban

Yesterday 27 members of Congress sent a letter (full text) to U.S. Attorney General Loretta Lynch urging stronger limits on religious and ethnic profiling than are set out in December 2014 guidelines issued by her predecessor Eric Holder. While the 2014 guidelines for the first time extended anti-profiling restrictions to national origin, gender, gender identity, religion, and sexual orientation (see prior posting), yesterday's letter pointed out a number of weaknesses in those guidelines: they are only advisory and do not offer victims any remedy; they still permit surveillance in order to map and infiltrate Muslim communities based on religious identity; and they do not cover profiling at airports, borders or by state and local officials.  The letter urged Lynch to work with Congress to adopt a comprehensive federal anti-profiling program. [Thanks to Glenn Katon for the lead.]

USCIRF Condemns Sudan's Prosecution of 2 Pastors

The U.S. Commission on International Religious Freedom issued a press release yesterday condemning the government of Sudan for its continuing prosecution of two Christian clergymen on "baseless charges of undermining Sudan’s constitution and waging war against the state"-- crimes which carry a possible death penalty or life in prison.  USCIRF says:

Revs. [Yat] Michael and [Peter] Reith, both of South Sudanese origin, belong to the Presbyterian Evangelical Church Khartoum Bahri congregation.  The congregation has brought a legal case against Sudanese authorities to stop the illegal sale of church land by Sudanese authorities to a Muslim businessman.  The National Intelligence Security Services (NISS) detained Rev. Michael in December 2014, after recording him urging parishioners at a church service to continue standing firm through the trials they were experiencing.  The same month, authorities partially destroyed the church and arrested 37 congregants.  Rev. Reith was detained in January 2015.  Both pastors were held at an undisclosed location and were not granted access to lawyers and family until March 1.

The defendants are also charged with insulting  religious beliefs, breach of the public peace, arousing feelings of discontent among the regular forces and disclosure of official information.

Church Sues Over Zoning Restrictions That Are Forcing It To Move

The San Diego Reader reports on a lawsuit filed May 28 by the San Diego Christian Worship Center against the city challenging zoning restrictions that will force the church to relocate in September.  The city granted the church a 5-year conditional use permit in 2010, and the church made $700,000 of improvements to its site. In 2014 the city changed the zoning in the area to "prime industrial," which does not allow churches, and the city says it will not renew the conditional use permit. The church lacks the resources to find a new building. Apparently the complaint contends that the new zoning designation, which excludes instructional studios and entertainment venues as well as churches, amounts to a prior restraint on First Amendment expression.  The church also claims-- presumably invoking RLUIPA-- that the cost of preparing an application every 5 years to renew its conditional use permit imposes a substantial burden on its exercise of religion.  It will cost $50,000 to $100,000 to prepare the application, which must include an environmental impact statement.

Supreme Court Rules Against Abercrombie In Title VII Religious Accommodation Case

In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., (Sup. Ct., June 1, 2015), the U.S. Supreme Court today reversed the 10th Circuit's holding on when employers must offer a reasonable accommodation for an employee's religious practices.  The 10th Circuit had held that Abercrombie & Fitch did not violate Title VII of the 1964 Civil Rights Act when it failed to reasonably accommodate Samantha Elauf's need to wear a headscarf because Elauf had not informed the company that she wore the hijab for religious reasons and would need an accommodation. (See prior posting.)  In an opinion by Justice Scalia, 7 justices held:

Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.

Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions....

A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability.

Justice Alito concurred only in the judgment, urging a different test for liability.  He concluded that Abercrombie is liable only if it had knowledge that Elauf wore her headscarf for religious reasons, but that there was sufficient evidence that Abercrombie had such knowledge that the court should not have granted summary judgment to defendants.

Justice Thomas dissented, arguing that Abercrombie's actions did not amount to disparate treatment (or intentional discrimination):

Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf ’s religious practice of wearing a headscarf.... In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices. To be sure, the effects of Abercrombie’s neutral Look Policy, absent an accommodation, fall more harshly on those who wear headscarves as an aspect of their faith. But that is a classic case of an alleged disparate impact.

Politico reports on the decision.

District Court Applies Hobby Lobby To Auto Dealership

In Holland v. U.S. Department of Health and Human Services, (D WV, May 29, 2015), a West Virginia federal district court, applying the Supreme Court's Hobby Lobby ruling, issued a permanent injunction barring federal authorities from enforcing the Affordable Care Act contraceptive coverage requirement, as in effect June 30, 2014, against a West Virginia auto dealership. The complaint (full text) in the case was brought by Joe Holland Chevrolet, Inc., a closely-held corporation, and its 91% owner who became a born-again Christian in 1996. Joe Holland objects to providing coverage for Plan B and ella, contraceptives that he considers abortifacients. Charleston Daily Mail reports on the decision. Liberty Institute issued a press release on the decision.

Turkey's Constitutional Court Invalidates Ban On Religious Marriage Without Civil Certificate

Anadolu Agency and Hurriyet Daily News report on the May 27 decision by Turkey's Constitutional Court striking down Sec. 230 paragraphs 5 and 6 of the Turkish Criminal Code that prohibit arranging or conducting a religious marriage ceremony without obtaining a civil marriage as well. Four of the 16 judges dissented.  Stressing the constitutional protection for freedom of religion and conscience, the court majority said that since it is legal for couples to live together without being married at all, equal treatment requires allowing couples to live together with only a religious ceremony.  Reacting, officials expressed concern that the decision will encourage the illegal marrying off of children and the erosion of the position of women. The case arose when a lower court in Erzurum province referred a case to the Constitutional Court instead of convicting an imam and the couple he married.

Kansas Catholic School Sued Over Child Neglect Report

Saturday's Kansas City Star reported on a lawsuit filed in Johnson County, Kansas state court last month against the Catholic Archdiocese of Kansas City, Sacred Heart Catholic Church and its school principal.  Plaintiff Melissa Schroeder claims that she told the school her 10-year old daughter was suffering significant health problems from ongoing bullying. Instead of resolving the problem, the suit alleges that school officials filed a false report with the state child welfare agency claiming abuse and neglect, reporting that the child's mother falsified the child's medical documents and had requested an exorcism for her daughter.

Recent Articles of Interest

From SSRN:

• Gabor Halmai, Religion and Constitutionalism, (MTA Working Paper No. 2015/05 (May 2015)).
• Elizabeth Pollman, Corporate Law and Theory in Hobby Lobby, (Forthcoming in The Rise of Corporate Religous Liberty (Zoë Robinson, Chad Flanders & Micah Schwartzman, eds., Oxford University Press 2015)).
• Michael John DeBoer, Legislating Morality Progressively -- The Contraceptive Coverage Mandate, Religious Freedom, and Public Health Policy and Ethics, (Journal of Law and Health, Vol. 28, p. 62, 2015).
• Doug Coulson, British Imperialism, the Indian Independence Movement, and the Racial Eligibility Provisions of the Naturalization Act: United States v. Thind Revisited, (Georgetown Journal of Law & Modern Critical Race Perspectives 7 (2015): 1-42).
• Timothy Zick, First Amendment Cosmopolitanism, Skepticism, and Democracy, (Ohio State Law Journal, Vol. 76, No. 3, 2015).
• Margaret M. Blair & Elizabeth Pollman, The Derivative Nature of Corporate Constitutional Rights, (56 William & Mary Law Review 1563 (2015).
• Noel Cox, Justice, Fairness and the Common Law: The Tort of Misfeasance in Public Office, (May 26, 2015).
• Michael J. Perry, On the Constitutionality and Political Morality of Granting Conscience-Protecting Exemptions Only to Religious Believers, (Emory Public Law Research Paper No. 15-356 (May 2015)).
• John D. Inazu, Introduction: Confident Pluralism: Surviving and Thriving Through Deep Difference, (in J. Inazu, Confident Pluralism: Surviving and Thriving Through Deep Difference, University of Chicago Press, 2016, Forthcoming).
• Ellen D. Katz, Dignity and Discriminatory Intent: What the Marriage Equality Cases Tell Us About Voter ID, (University of Chicago Legal Forum, Forthcoming).

Muslim Interfaith Advocate Charges United Airlines With Discrimination

CNN reports that Tahera Ahmad, the 31-year old Muslim chaplain and director of interfaith engagement at Northwestern University is charging that United Airlines discriminated against her on a flight Friday from Chicago to Washington. Wearing a hijab (headscarf), she was on her way to attend a conference promoting dialogue between Israeli and Palestinian youth. Ahmed asked the flight attendant for an unopened can of Diet Coke, but was told: "We are unauthorized to give unopened cans to people because they may use it as a weapon on the plane." However the flight attendant gave the passenger next to Ahmad an unopened can of beer. As reported by CNN:

When Ahmad told the flight attendant she was being discriminated against, the attendant abruptly opened the beer can.  "It's so you don't use it as a weapon," Ahmad said she was told. Shocked, Ahmad asked other passengers if they had seen what happened. A man sitting across the aisle turned to her and yelled, "You Muslim, you need to shut the f--- up," she said. "What?" The man leaned over, looked her in the eyes and said: "Yes, you know you would use it as a weapon. So shut the f--- up"....

The flight attendant as well as the pilot later apologized.  Ahmed has Premier frequent flier status with United.  United said: "We are ... discussing the matter ... with Shuttle America, our regional partner that operated the flight. We look forward to speaking with Ms. Ahmad and hope to have the opportunity to welcome her back."

Recent Prisoner Free Exercise Cases

In Grief v. Ask-Carlson, 2015 U.S. Dist. LEXIS 66653 (ED NY, May 21, 2015), a New York federal district court dismissed with leave to amend an inmate's claim that he needs two stuffed animals to use in his practice of meditation that is part of his quest for spiritual enlightenment.

In Allah v. Wade, 2015 U.S. Dist. LEXIS 66690 (ED NC, May 20, 2015), a North Carolina federal district court dismissed an inmate's claim that his religious material was seized and declared contraband and non-religious.

In Shabazz v. Lokey, 2015 U.S. Dist. LEXIS 67051 (WD VA, May 22, 2015), a Virginia federal district court permitted an inmate to move ahead with his claim that his Nation of Islam materials were seized and wrongly declared to be gang-related "Five Percenter" documents.

In Aytch v. Cox, 2015 U.S. Dist. LEXIS 67180 (D NV, May 21, 2015), a Nevada federal district court granted a Muslim inmate a preliminary injunction ordering prison officials to provide him with a diet that complies with both the tenets of his Muslim faith and his low sodium medical needs.

In Quinn v. Management & Training Corp., 2015 U.S. Dist. LEXIS 68388 (SD MS, May 4, 2015), a Mississippi federal magistrate judge recommended that an inmate's claim that officials refused to recognize Voodoo as his religion and to allow him access to written religious materials be dismissed as abandoned by plaintiff at the hearing.

In Winston v. Gray, 2015 U.S. Dist. LEXIS 69388 (ED MO, May 29, 2015), a Missouri federal district court dismissed an inmate's complaint that he is being denied kosher meals because he failed to comply with the court's discovery order.

In Sessing v. Beard, 2015 U.S. Dist. LEXIS 69916 (ED CA, May 28, 2015), a California federal magistrate judge vacated his earlier findings and recommendation to dismiss and gave plaintiff 30 days to file a new complaint alleging that Asatru/Odinists were arbitrarily denied access to the Native American fire pit and to a suitable worship area.

In Wahid v. Cruzen, 2015 U.S. Dist. LEXIS 70036 (ND CA, May 28, 2015), a California federal district court allowed a Muslim inmate to proceed with his claim for nominal and punitive damages for authorities' interrupting Muslim congregational prayer on one day.

Lack of Judges Creates Huge Backlog In Israel's Highest Religious Court

Haaretz reported last week on the paralysis in Israel's Rabbinical Court because of the partisan fighting that has prevented the appointment of new judges by the committee charged with doing so.  The High Rabbinical Court is the highest appellate court in the religious court system that handles personal status issues-- especially divorces.  Four urgent appeals will finally be heard this week, but the court faces a backlog of 2900 other cases. Six permanent judges are need for the High Rabbinical Court and 25 are needed for regional religious courts. (See prior related posting.)

UPDATE:  Jerusalem Post reports that on Monday June 1,  Justice Minister Ayelet Shaked approved the temporary appointment, for a period of 6 months, of three new judges to the High Rabbinical Court.

District Court Modifies, But Will Not Dissolve, Injunction Barring Sectarian Invocations

In Hudson v. Pittsylvania County, Virginia, (WD VA, May 28, 2015), a Virginia federal district court modified, but refused to dissolve, its prior injunction (issued before the Supreme Court's Town of Greece decision) barring sectarian prayer at Pittsylvania County's Board of Supervisors meetings. The court said in part:

By opening its meetings with prayers led by Board members, the Supervisors of Pittsylvania County determined the content of the prayers offered at Board meetings and did so by consistently referencing the tenets of one denomination. In so doing, the Board involved itself “in religious matters to a far greater degree” than was the case in Town of Greece.... Moreover, by delivering the prayers to the assembled public and asking them to stand for the prayers, the Board members “directed the public to participate in the prayers.”... Finally, because the Board itself determined the content of the Pittsylvania County prayers, persons of other faiths had no opportunity to offer opening prayers in their faith traditions. As such, the Supreme Court’s decision in Town of Greece was decided on very different facts, and its decision does not alter the conclusion that the prayer practice of the Board of Supervisors of Pittsylvania County violated the Establishment Clause of the First Amendment of the United States Constitution.

While the injunction in this case will be modified to eliminate any suggestion that legislative prayer must be nonsectarian, the Board’s exclusive practice of determining the content of and leading the citizens of Pittsylvania County in prayer associated with one faith tradition at the opening of Board meetings will remain enjoined.

Last August the district court had issued an opinion expressing a similar conclusion (see prior posting), but refused to modify the injunction then because it concluded  it did not have jurisdiction to do so until the 4th Circuit to which the case had been appealed granted at least a limited remand. In December, the 4th Circuit dismissed the appeal finding that it was untimely. (See prior posting.)

8th Circuit Upholds Missouri's Blaine Amendments Against 1st and 14th Amendment Attack

In Trinity Lutheran Church of Columbia, Inc.v. Pauley, (8th Cir., May 29, 2015), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, rejected arguments that Missouri's Blaine Amendments violate the free exercise, establishment and equal protection clauses of the federal Constitution. At issue was the refusal by Missouri's Department of Natural Resources of a grant application by Trinity Church for a Playground Scrap Tire Surface Material Grant that would allow it to resurface a playground at its day care and preschool facility on church premises. In refusing the grant, the Department pointed to Missouri Constitution, Art. I Sec. 7, that prohibits public funds from being spent "in aid of any church, section or denomination of religion." The majority said in part:

Trinity Church seeks an unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church. To prevail, Trinity Church must clear a formidable if not insurmountable hurdle, what appears to be controlling adverse precedent.

Judge Gruender dissented, saying that Trinity Church has sufficiently pleaded a Free Exercise violation.

British Education Officials Launch Investigation of Jewish Schools Over Women's Driving Ban

The Guardian reports today that Britain's Department of Education is launching an investigation into an order issued by the Jewish Hasidic Belz sect that operates two schools in North London. The sect's order bans women from driving their children to school-- saying (as reported in a second Guardian article) that women's driving violates "the traditional rules of modesty in our camp." The decision was made upon the advice of the Belzer spiritual leader in Israel. A letter to school parents said that beginning in August, children driven to school by their mothers would be turned away.  A special committee will consider requests for exceptions for medical and similar reasons. Education Secretary Nicky Morgan (who is also minister for women and equalities) said:

This is completely unacceptable in modern Britain. If schools do not actively promote the principle of respect for other people they are breaching the independent school standards. Where we are made aware of such breaches we will investigate and take any necessary action to address the situation.”

UPDATE: A June 4 report by JTA indicates that the schools have backed off.  The schools' CEO said that the letter had not been seen in advance by the schools' board and that "women have a choice about whether they want to drive or not, and our policy is to accept all children who are members of our community..."

North Carolina Governor Vetoes Bill Allowing Magistrates To Refuse To Perform Same-Sex Marriages

As reported by The Advocate, yesterday North Carolina Governor Pat McCrory, a Republican, announced he would veto Senate Bill 2 (full text), which was sent to him earlier in the day by the state legislature. The bill provides that individual magistrates have the right to recuse themselves from performing all lawful marriages based on any sincerely held religious beliefs and that individual register of deeds personnel similarly may opt out of issuing marriage licenses. The Governor in a statement said (full text):

I recognize that for many North Carolinians, including myself,  opinions on same-sex marriage come from sincerely held religious beliefs that marriage is between a man and a woman. However, we are a nation and a state of laws. Whether it is the president, governor, mayor, a law enforcement officer, or magistrate, no public official who voluntarily swears to support and defend the Constitution and to discharge all duties of their office should be exempt from upholding that oath; therefore, I will veto Senate Bill 2.

According to WITN News, a half hour after issuing the statement, he formally vetoed the bill.  In North Carolina, the Administrative Office of the Courts had previously issued a memo to judges and magistrates stating that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples, and magistrates have filed suit challenging the absence of a religious liberty exception. (See prior posting.) The Gaston Gazette has reactions from various state legislators to the governor's veto.

Provocative Draw Muhammad Contest and Rally Planned In Phoenix Today

A provocative rally is set for this evening in Phoenix, Arizona outside the Phoenix Islamic Center.  KPHO News and Mashable report on the event organized by former Marine Jon Ritzheimer and billed as "Round 2" after the attacks earlier this month on Pamela Geller's "Muhammad Art Exhibit and Contest" in Garland, Texas. (See prior posting.)  The two gunmen there were from Phoenix and one had studies at the Phoenix Islamic Center. Today's event, to which bikers are invited, will involve a Muhammad Cartoon Contest with the winner being announced at the rally.  The rally will be held at 6:15 pm to coincide with the mosque's Friday prayer services. The Facebook page promoting the rally says in part: "People are also encouraged to utilize there [sic.] second amendment right at this event just incase our first amendment comes under the much anticipated attack."

The KPHO report quotes Ritzheimer who says he knows that the Phoenix Islamic Center has condemned ISIS.  But he insists that is not enough.  He says: "People call them an extremist; to me it's just a Muslim following their book as it's written.... Unfortunately, we have to hold the cartoon contest, as silly as it sounds, to be able to show the true colors of Islam."

Group Challenges University Football Coach Leading Players In Lord's Prayer

The Toledo Blade reported Wednesday on a letter (full text) sent by Freedom From Religion Foundation to the president of the University of Toledo (a public university) complaining about a video posted on the University's YouTube channel showing football coach Matt Campbell leading his players in the Lord's Prayer.  The video of pre-game activity, apparently shot by a mobile video camera attached to one of the player's helmets, shows the coach calling together the team in the locker room so they can offer the prayer to fire the players up as they are about to run onto the field. The video is from a 2012 game against the school's traditional rival, Bowling Green State University. However the Blade article also features a photo of Coach Campbell leading the team in prayer after a 2015 game. A University spokesman said the school is reviewing FFRF's letter.

More Alabama Same-Sex Marriage Developments

Alabama has been "ground zero" for opposition to same-sex marriage.  Two more developments help it keep that title.  According to the Montgomery Advertiser, in Prattville, Alabama last week, a Unitarian minister pleaded guilty to disorderly conduct charges and was sentenced to six months unsupervised probation and a $250 fine. The charges were filed last February when Anne Susan DiPrizio offered to marry a lesbian couple who had just received a marriage license, planning to conduct the ceremony inside the Autauga County Probate Office.  However, the local Probate Judge had stopped all marriages in the office.  After DiPrizio refused to leave, sheriff's deputies were called and disorderly conduct charges were filed.

Meanwhile also last week, the Alabama state Senate passed and sent to the state House of Representatives SB 377 (full text) that would end the issuance of marriage licences in the state.  Instead a couple would enter a "marriage contract" containing specified information and would record that contract in the office of the county probate court.  If and when same-sex marriage becomes legal in Alabama, this procedure eliminates the issue of whether a probate court employee who objects to same-sex marriage must issue a license to a same-sex couple. The bill's sponsor defines the bill's purpose more broadly, saying: "When you invite the state into those matters of personal or religious import, it creates difficulties." (Yellowhammer News, 4/30/15).

French Court Fines Salafist For Disturbing Mosque

AP reported yesterday that a court in France has handed a victory to a small mosque in Lyon that filed a complaint with authorities about a Salafist member of the mosque who has been disruptive.  The mosque invoked a provision in France's 1905 law on secularism that provides legal recourse against a person who interferes with the ability to express freedom of conscience.  It filed a complaint against Faouzi Saidi who in 2014 criticized the imam, held parallel prayer services and preached his ultraconservative Salafi views to Muslim converts. The court fined Saidi 1500 Euros, with 500 Euros suspended.

Suit Challenges Middle School Field Trip To Christian Sports Complex

The American Humanist Association announced yesterday that it had filed a lawsuit against the Joplin, Missouri public school system challenging a middle-school field trip to a Christian sports complex.  The complaint (full text) in Doe v. Huff, (WD MO, filed 5/27/2015), alleges that the middle school's policy of scheduling student field trips to Victory Ministry and Sports Complex violates the Establishment Clause.  The suit seeks an injunction and punitive damages.

Church's Suit Against Chase and JPMorgan Dismissed In Part, With Leave To Replead

In Rector, Wardens, and Vestrymen of Christ Church Cathedral of Indianapolis v. JPMorgan Chase and Company, (SD IN, May 21, 2015), an Indiana federal district court dismissed with leave to replead constructive fraud claims against Chase Bank and its parent JPMorgan brought by Christ Church Cathedral that lost some $13.5 million from trusts that had been set up to benefit it under the will of Eli Lilly.  The church alleged that the trustee bought complex structured notes and proprietary hedge funds that lost money but resulted in increased fees for the trustee. The court held that the church had not stated its claims with sufficient particularity, lumping together various defendants and failing to indicate what decisions the church made in reliance on alleged misrepresentations. The court dismissed the state securities law claim without leave to replead it. It did not dismiss a breach of trust claim against Chase Bank. Indianapolis Star, reporting on the decision, quotes the church's attorney who says that amended pleadings will be filed.

Suit Claims High School Extensively Promotes Evangelical Christianity Through Activities With Church

A Jewish teacher in a southern Colorado school district filed suit yesterday in federal district court alleging that the Florence, Colorado High School extensively promotes evangelical Christian activities through arrangements with a church, The Cowboy Church at Crossroads. The complaint (full text) in Basevitz v. Fremont RE-2 Schol District, (D CO, filed 5/26/2015), alleges in part:

The Cowboy Church at Crossroads is lead by Pastor Randy Pfaff, and meets every Sunday in the cafeteria of the School. The Church is advertised by two large signs that are hung on school property and are clearly visible to motorists.... 

The cornerstone of Pastor Pfaff and the Church’s “mission work” at the School is daily morning prayer in front of the School, at the flagpole.  Either Pastor Pfaff or another member of the Church has been present for this ceremony every day for the last three years. With the School’s support, Pastor Pfaff has led these services, ministering to the School’s students and staff while holding a bible and using a public address system to preach his evangelical Christian messages.... Numerous faculty members, in including Principal Schipper, participate in services.....

... Pastor Pfaff and the Church, with the support of the School’s administration, routinely minister to staff and students through the distribution of flyers promoting their evangelical Christian views...

Through the Fellowship’s front group, Pastor Pfaff and the Church also hold weekly lunches at the School. The students refer to this event as “Jesus Pizza.” This meeting is promoted to the School’s students and staff through the presence of a large sign in the hallway that reads “God loves you and has a plan for your life. Jeremiah 29:11.” ....  During these “Jesus Pizza” sessions, which are led by Pastor Pfaff, he preaches to and prays with Florence students....

Denver Post reports on the lawsuit.

Court Defers To Ecclesiastical Decision In Church Control Lawsuit

Kim v. The True Church Members of the Holy Hill Community Church, (Cal. App., May 21, 2015), involves a dispute between two factions of a Los Angeles congregation that was part of a presbytery of the Korean American Presbytery Church.  The congregation owns valuable property on Los Angeles' Sunset Boulevard.  The dispute involved attempts by one faction to excommunicate members of the other and an attempt to withdraw the congregation from the parent church body.  The California state appeals court affirmed the trial court's decision deferring to the determination by the parent body of the congregation.

Legalization of Same-Sex Marriage Complicates Prior Estate Planning Devices

A New York Times article six years ago reported on the use of adult adoption as an estate planning tool for same-sex couples who were prohibited by law from marrying.  The technique allows a same-sex partner to share as a beneficiary in a family trust to which the person would not be entitled if not a family member. Last week the Doylestown-Buckingham-New Britain Patch reported on how this kind of arrangement has fared as same-sex marriage becomes legal in many states. Bill Novak and Norman MacArthur are a same-sex couple who have been together for more than 50 years and were registered as domestic partners in New York City. When they moved to Pennsylvania, their lawyer advised them to use the adoption strategy for estate planning purposes.  So in 2000, Novak adopted MacArthur.  But now that same-sex marriage is permitted in Pennsylvania, the two would like to marry.  However this required vacating the adoption decree.  In a precedent-setting decision on May 14, the Orphans Court of Bucks County  granted their Petition to Vacate, and the couple applied for and received a marriage license the same day.  They expect to actually marry soon.

Another Decision Invalidating Alabama's Same-Sex Marriage Ban

In Alabama last week, a federal district court took another step toward requiring all counties to issue licenses for same-sex marriages.  A federal district court had already issued an injunction against the attorney general and one state probate judge requiring them to issue marriage licenses to same sex-couples. (See prior posting.) Now in Strawser v. Strange (Doc. 122), (SD AL, May 21, 2015), the same federal district court permitted plaintiffs to turn the case into a class action against "all Alabama county probate judges who are enforcing or in the future may enforce Alabama’s laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages."  It also certified as a plaintiff class "all persons in  Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages."

Then in a second opinion the same day, Strawser v. Strange (Doc. 123), (SD AL, May 21, 2015), the court again held that Alabama's marriage laws that prohibit and refuse to recognize same-sex marriages violated the equal protection and due process clauses of the 14th Amendment. It granted plaintiffs' motion for a preliminary injunction, but stayed it until the U.S. Supreme Court issues its opinion in Obergefell v. Hodges, expected within the next several weeks.  Christian Science Monitor reports on the decision.

Recent Articles of Interest

From SSRN:

• Steven H. Resnicoff, J. David Bleich: An Intellectual Portrait, (in Hava Tirosh-Samuelson and Aaron W. Hughes (eds), J. David Bleich: Where Halakhah and Philsophy Meet (Brill Academic Publishers, Forthcoming).
• Carl H. Esbeck, Third-Party Harms, Congressional Statutes Accommodating Religion, and the Establishment Clause, (University of Missouri School of Law Legal Studies Research Paper No. 2015-10, May 2015).
• Natasha Bakht & Jordan Palmer, Modern Law, Modern Hammers: Canada's Witchcraft Provision as an Image of Persecution, ((2015) 35 Windsor Review of Legal and Social Issues 123).
• Eliav Lieblich, Assimilation Through Law: Hans Kelsen and the Jewish Experience, (The Law of Strangers: Critical Perspectives on Jewish Lawyering and International Legal Thought (James Loeffler & Moria Paz eds., Cambridge University Press, Forthcoming)).
• Michael Heise, Lost Ground: Catholic Schools, the Future of Urban School Reform, and Empirical Legal Scholarship, (Texas Law Review, Vol. 93, 2015).
• Antonios E. Kouroutakis, Islamic Terrorism: The Legal Impact on the US and Europe, (Boston University International Law Journal, Vol. 34, 2016 Forthcoming).
• Elizabeth Sepper, Healthcare Exemptions and the Future of Corporate Religious Liberty, (The Rise of Corporate Religious Liberty (Oxford University Press, Chad Flanders, Zoe Robinson & Micah Schwartzman, eds. 2015, Forthcoming)).
• Elizabeth Deutsch, Expanding Conscience, Shrinking Care: The Crisis in Access to Reproductive Care and the Affordable Care Act's Nondiscrimination Mandate, (Yale Law Journal, Vol. 124, No. 7, 2015).

From SSRN (Rutgers Journal of Law and Religion Symposium, Vol. 16, 2015).

• Roberta Rosenthal Kwall, Introduction - People of the Book: Judaism's Influence on American Legal Scholarship.
• Margo Schlanger, Against Solitary Confinement: Jonah's Redemption and Our Need for Mercy. 
• Susan A. Bandes, Civil Liberties and the 'Imaginative Sustenance' of Jewish Culture.
• Roberta Rosenthal Kwall, Reinvention with Authenticity: A New Journey on a Familiar Road.

From SSRN (Marriage):

• Kevin H. Govern, Fidelity and Fairness in Marital Commitments, Covenants, and Contractual Relationships: Mulieris Dignitatem's Wisdom, (in American Law from a Catholic Perspective: Through a Clearer Lens, Ronald Rychlak Ed., Rowman & Littlefield (April 2015)).
• Mae Kuykendall, Marriage Goals and Government Interests: Handling Complexity, Apportioning Expertise, Using Federalism, (May 20, 2015).
• R. Anthony Reese, Be Careful Where You Live When You Die: Termination of Copyright Transfers and the Road to Marriage Equality, (IP Theory, Forthcoming, 2015).

From SmartCILP and elsewhere:

• Jeremy A. Rovinsky, The Cutting Edge: The Debate Over Regulation of Ritual Slaughter in the Western World, [Abstract], 45 California Western International Law Journal 79-107 (2014).
• Politics of Religious Freedom. Introduction by Peter Danchin, Winnifred Fallers Sullivan, Saba Mahmood and Elizabeth Shakman Hurd; articles by Ratna Kapur, Heather Miller Rubens, Peter Danchin, Louis Blond, Tamir Moustafa, Waheeda Amien and Annie Leatt (Dhammamegha). 29 Maryland Journal of International Law 293-547 (2014).
• Philip C. Aka, Shaping Their Better Character: Religion In African American Politics In the Age of Obama, 16 Rutgers Journal of Law & Religion 1-70 (2014).
• Mairaj Syed, Compulsion in Islamic Law, Entry in Oxford Encyclopedia of Islamic Law, Academia.edu 2015.

Appeals Court Affirms Decision On Ownership of Buddhist Pagoda

As reported by the Salt Lake Tribune, in Dao Trang Phap Hoa v. Vietnamese Unified Buddhist Association of Utah, (UT App., May 21, 2015), a Utah state appeals court upheld a trial court's decision that a Salt Lake City Buddhist temple-- the Pho Quang Pagoda-- is owned by a local affiliate of the California-based Vietnamese-American Unified Buddhist Congress.  Some members of the temple claimed that the Congress held the Pagoda in trust for the local Vietnamese Buddhist Alliance Society of Utah.  The appeals court held that even if there were questions of fact on that issue, the plaintiff in this case, the  Vietnamese Unified Buddhist Association of Utah, lacked standing to assert the claim on behalf of the Society because the two groups are separate corporations, even though they have overlapping membership.

Texas Passes Bill To Protect Clergy and Religious Groups That Object To Same-Sex Marriage

Anticipating the U.S. Supreme Court's upcoming decision on marriage equality, the Texas legislature last week gave final passage and sent to the governor for his signature S.B. No. 2065 (full text) to protect clergy and religious groups who object to same-sex marriage.  The bill provides:

A religious organization, an organization supervised or controlled by or in connection with a religious organization, an individual employed by a religious organization while acting in the scope of that employment, or a clergy or minister may not be required to solemnize any marriage or provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, or celebration of any marriage if the action would cause the organization or individual to violate a sincerely held religious belief.

It goes on to provide that this shields the organization and individuals against civil or criminal claims or governmental denial of benefits. Last Friday's Dallas Morning News, reporting on the legislature's action, also reported that a separate bill designed to impede issuance of same-sex marriage licenses by county clerks will not move ahead this session.

UPDATE: Gov. Greg Abbott signed SB 2065 on June 11. (Austin Standard-Times).

Pro Se Plaintiff Challenges Teaching of Evolution In West Virginia Schools

A pro se lawsuit was filed in a West Virginia federal district court earlier this month challenging the teaching of evolution in West Virginia's public schools.  The complaint (full text) in Smith v. Jefferson County Board of Education, (ND WV, filed 5/12/2015) contends that school officials and various federal officials are propagating a religious faith by fostering the teaching evolution in the state's schools. Reporting on the lawsuit, the National Center for Science Education says that plaintiff is the author of a book titled The True Origin of Man.

Court Orders Another Election For Small Church's Board

In Rock Church, Inc. v. Venigalla, (NY York Co. Sup. Ct., May 14, 2015), a New York state trial court rejected a challenge to its jurisdiction over a disputed election in a small church whose some 30 members were split over whether to fire its pastor after his decision to reduce the number of Sunday services from two to one. The court had previously ordered that a meeting be held to elect a full Board.  This suit challenges the validity of that election in which the faction opposing the pastor was voted into office after a third vote at which the pastor's supporters claim numerous non-members voted. The court said in part:

If this matter required the a weighing of an individual's fitness for membership in the Church, and a decision as to whether or not that individual met the criteria for membership, including investigation into the depth of his or her religious convictions, it would be clear that the matter would be beyond this court's subject matter jurisdiction. But, the matter actually turns on a matter of contract. In the present matter, through its by-laws, the Church's contract as to how the Church will conduct its business, the Church has already decided how members are to be determined. Under the Church's by-laws, it is up to the pastor, and only the pastor, to determine who is to be a member of the Church....

Since Pastor Impaglia ... attests that the third vote taken on October 5, 2014, was taken largely among nonmembers, who cannot vote for trustees, it follows that the final vote taken on October 5, 2014, which put respondents in power, was illegal under the Church's By-Laws, and is void. As said, the matter is one of pure contract interpretation, and therefore involves only the application by this court of a "neutral principle of law."

The court held that another vote held the same day purporting to elect the pastor's supporters was also void, and ordered the church to hold another special meeting.

Official Results and Reactions To Ireland's Marriage Equality Referendum

The official results of Ireland's referendum last Friday (see prior posting) that approved same-sex marriage was 62.07% yes and 37.93% no. (60.52% of the voters turned out for the election,) In a speech on Saturday (full text) welcoming the result, Ireland's Prime Minister Enda Kenny said in part:

So – the people went to the polls. It passed. The answer is YES. Yes to their future. Yes to their love. Yes to their equal marriage. That yes is heard loudly across the living world as a sound of pioneering leadership of our people and hopefully across the generations of gay men and women born as we say, before their time.

In an inteview on Saturday (full text) ith Vatican Insider, Archbishop of Dublin, Diarmuid Martin said in part:

The Church needs to ask itself when this cultural revolution began  and why some of its members refused to see this change. There also needs to be a review of youth pastoral care: the referendum was won with young people’s votes and 90% of young people who voted “yes” to the motion, attended Catholic schools....

An individualistic idea of the family prevails. The concept of marriage as a fundamental element of social cohesion has been lost. A reasoning based on respect for the rights of the individual is more successful than one based on social ethics.

Obama Addresses Synagogue For Jewish American Heritage Month [corrected]

President Obama this morning delivered a 30-minute address (full text) at Adas Israel Congregation in Washington, D.C. to mark Jewish Heritage Month. Here is an excerpt from his wide-ranging speech:

Now, I wanted to come here to celebrate Jewish American Heritage Month because this congregation, like so many around the country, helps us to tell the American story.  And back in 1876, when President Grant helped dedicate Adas Israel, he became the first sitting President in history to attend a synagogue service.  And at the time, it was an extraordinarily symbolic gesture -- not just for America, but for the world. 

And think about the landscape of Jewish history.  Tomorrow night, the holiday of Shavuot marks the moment that Moses received the Torah at Mount Sinai, the first link in a chain of tradition that stretches back thousands of years, and a foundation stone for our civilization.  Yet for most of those years, Jews were persecuted -- not embraced -- by those in power.  Many of your ancestors came here fleeing that persecution. 

The United States could have been merely another destination in that ongoing diaspora.  But those who came here found that America was more than just a country.  America was an idea.  America stood for something.  As George Washington wrote to the Jews of Newport, Rhode Island:  The United States “gives to bigotry no sanction, to persecution no assistance.” 

[Correction: Obama spoke to "mark" the event.  The typo in an earlier version of the post regrettably suggested something else.]

New Orleans Mayor Issues Executive Order In Opposition To Jindahl's

Two days after Louisiana Governor Bobby Jindahl issued an executive order designed to prevent governmental entities from denying benefits to persons who act in accordance with their religious beliefs in opposition to same-sex marriage (see prior posting), New Orleans Mayor Mitch Landrieu yesterday issued a counter-Executive Order (full text).  Landrieu's order was designed to address the backlash to Jindahl's action that threatened tourist, convention and special event business in the state.  The heart of Landrieu's order is the purpose clause in Sec. 1:

The purpose of this Executive Order is to confirm for the residents of the City of New Orleans, its businesses and visitors that religious beliefs are protected from unjustified governmental burden, but that there is no tolerance in the City of New Orleans for discrimination on the basis of race, creed, national origin or ancestry, color, religion, gender or sex, sexual orientation, gender identification, marital or domestic partner status, age, physical condition or disability.

The Advocate reports on Landrieu's action and points out that New Orleans "has a history of embracing gays, lesbians, bisexuals and transgender individuals, not only culturally, through Carnival krewes and the annual Southern Decadence festival, but through its laws."

Zogby Reappoined To USCIRF

Last week, President Obama announced his intention to reappoint Dr. James J. Zogby to another term on the U.S. Commission on International Religious Freedom. Earlier this week, USCIRF issued a press release in which USCIRF Chair Dr. Katrina Lantos Swett welcomed the reappointment.

Court Refuses To Allow High School Senior To Wear Eagle Feather On Cap At Graduation

In Griffith v. Caney Valley Public Schools, (ND OK, May 20, 2015), an Oklahoma federal district court adopted a magistrate's recommendaiton (full text) and refused to grant a preliminary injunction to high school student Hayden Griffith who wanted to wear an eagle feather on her mortar board tassel at her high school graduation last night.  The court rejected Griffith's claim that the school district's ban on cap decorations violates her free speech and free exercise rights and her rights under the Oklahoma Religious Freedom Act (ORFA). Discussing the ORFA claim, the court concluded that Griffith had not shown that the policy substantially burdens her free exercise of religion, saying:

[Griffith] testified that wearing the feather shows her respect for God and for the tribal elder who gave the feather to her, but that failing to attach the feather to her cap would not result in any religious detriment to her. Thus, attaching the feather to her graduation cap would be a personal expression of religious significance to Griffith, but it is not a religiously motivated “practice” ... or an activity that is “fundamental” to her religion.... Nor does the policy prohibiting decorations on graduation caps during the ceremony “meaningfully curtail” her ability to express adherence to her faith..... The policy does not prevent Griffith from attaching the feather to her cap at any time other than the graduation ceremony. She may attach it to her cap it up until she enters the graduation ceremony, and she may affix the feather to her cap immediately after the ceremony. The school superintendent also offered to re-pose for the professional photographer with Griffith wearing her feather on her cap after the ceremony. In sum, Griffith may display the feather as she wishes throughout her celebration of her graduation, other than during the graduation ceremony with her fellow classmates.

Tulsa World reported on the decision.

North Carolina Magistrates Sue Over Requirement They Perform Same-Sex Marriages

Yesterday in North Carolina, a magistrate and a former magistrate (who had not been reappointed after 10 years of service) filed suit challenging a memorandum issued by the Administrative Office of the Courts in October requiring all magistrates to conduct same-sex marriage ceremonies in the same manner as any other marriage ceremony.  The memorandum was issued to implement federal court rulings striking down the state's same-sex marriage ban.  The complaint (full text) in Smoak v. Smith, (NC Super. Ct., filed 5/21/2015) contends that the failure to make exceptions for magistrates with sincerely held religious beliefs opposed to same-sex marriage violates their conscience, religious liberty, free speech, due process and equal protection rights under the North Carolina Constitution. Liberty Counsel issued a press release on the lawsuit.

DC Circuit Denies En Banc Review of Priests For Life ACA Contraceptive Mandate Challenge

Yesterday in Priests for Life v. U.S. Department of Health and Human Services, (DC Cir., May 20, 2015), the D.C. Circuit Court of Appeals denied a petition for rehearing en banc. In the case, a 3-judge panel upheld the Obama administration's compromise for religious non-profits that object to furnishing contraceptive coverage under the Affordable Care Act. (See prior posting.) While the petition for rehearing failed to garner votes of a majority of the Circuit's judges, three separate opinions on behalf of six different judges were filed along with the per curiam denial.

Judge Brown, dissenting from the denial, joined by Judge Henderson argued

The panel conceded Plaintiffs sincerely “believe that the regulatory framework makes them complicit in the provision of contraception,” ... That acknowledgement should end our inquiry into the substance of their beliefs.

Judge Kavanaugh also dissented from the denial of a rehearing, arguing that the government has a still less restrictive alternative available-- a less restrictive notice of an opt out by the non-profit.

Judge Pillard, joined by Judges Rogers and Wilkins defended their 3-judge panel decision:

the dissenters perceive in Hobby Lobby a potentially sweeping, new RFRA prerogative for religious adherents to make substantial-burden claims based on sincere but erroneous assertions about how federal law works....

RFRA protects religious exercise. In no respect do we, nor could we, question Plaintiffs’ sincere beliefs about what their faith permits and forbids of them. But we can and must decide which party is right about how the law works. We concluded that the regulation challenged in this case does not, as a matter of law or fact, give Plaintiffs’ conduct the contraception-facilitating effect of which they complain.

Washington Times reports on the decision.

Some Recent Congressional Actions of Interest

On April 15, the U.S. House of Representatives passed H.R. 1314, a bill that would amend the Internal Revenue Code to assure the right to an administrative appeal for non-profit organizations that are denied tax-exempt status by the IRS.  When the bill went to the Senate, it became the vehicle for the high profile trade promotion authority.  The May 12 substitute amendment (full text) that added the trade authority provisions, however, eliminated the text of the House language regarding non-profits.

A large number of amendments have been offered on the Senate floor to the trade authority bill. One of those amendments (No. 1237), approved in the Seante  on May 18 by a 92-0 vote, adds to the numerous trade negotiating objectives in Sec. 102, the following:

to take into account conditions relating to religious freedom of any party to negotiations for a trade agreement with the United States.

Louisiana Governor Issues Executive Order Protecting Traditional Marriage Advocates

After a committee of the Louisiana House of Representatives effectively killed the proposed Marriage and Conscience Act yesterday (New Orleans Times Picayune), Governor Bobby Jindal issued Executive Order BJ 15-8  (May 19, 2015) designed to accomplish the same thing. Its key provision prohibits government departments, commissions, boards, agencies and local governments from denying various benefits because a person acts in accordance with his religious belief that marriage should be only between one man and one woman.  Specifically government is not to deny or revoke a tax exemption, disallow deduction of a charitable contribution, or exclude a person from receiving any state grant, contract licensure, accreditation or employment on this basis.

7th Circuit Denies Notre Dame Preliminary Injunction In Its Contraceptive Mandate Challenge

Deciding the case on remand from the Supreme Court (see prior posting), the U.S. 7th Circuit Court of Appeals in a 2-1 decision in University of Notre Dame v. Burwell, (7th Cir., May 19, 2015), refused to grant a preliminary injunction to Notre Dame University in its challenge to the Affordable Care Act contraceptive coverage mandate as applied to religious non-profits.  Federal regulations allow religious non-profits to file a form notifying their insurer or plan administrator of their objection to providing contraceptive coverage.  When that is done, the insurer or administrator must provide coverage directly.  Judge Posner's majority opinion says in part:

Notre Dame claims to be complicit in the sin of contraception. It wants to dissolve that complicity by forbidding Aetna and Meritain ... to provide any contraceptive coverage to Notre Dame students or staff.... It regards its contractual relationship with those companies as making the university a conduit between the suppliers of the coverage and the university’s students and employees.... 

Although Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs. As far as we can determine from the very limited record, the only “conduit” is between the companies and Notre Dame students and staff; the university has stepped aside. 

Judge Hamilton wrote a concurring opinion focusing on the Supreme Court's favorable discussion of the accommodation for religious non-profits in its Hobby Lobby opinion. Judge Flaum wrote a dissenting opinion arguing that "the law turns Notre Dame into a conduit for the provision of cost-free contraception." Wall Street Journal reports on the decision.

Northern Ireland Court Says Bakery Violated Anti-Discrimination Laws In Refusing Cake Promoting Gay Marriage

As reported by the New York Times,  yesterday in a widely followed case a court in Northern Ireland held that owners of a Belfast bakery chain illegally discriminated on the basis of sexual orientation when they refused on religious grounds to provide a customer with a cake featuring the Sesame Street characters Bert and Ernie and the inscription "Support gay marriage."  In Lee v. Ashers Baking Co. Ltd, (County Ct. N. Ireland, May 19, 2015), the court said:

Much as I acknowledge fully their religious belief is that gay marriage is sinful, they are in a business supplying services to all, however constituted.  The law requires them to do just that...

The court observed that a different result "would allow a religious belief to dictate what the law is."  The widely followed case grew out of a cake order placed by a gay man who planned to attend a private event marking the end of Northern Ireland anti-homophobia week.

A Graduation Prayer Decision Worth Reading At Length

Constitutional doctrine surrounding the issue of student-led prayer at elementary school graduation is sufficiently well settled that one would expect an opinion on the issue to be rather routine.  Those expectations are upset by the literate opinion handed down Monday by South Carolina federal district court Judge Bruce Howe Hendricks.  American Humanist Association v. South Carolina Department of Education, (D SC, May 18, 2015) involves a challenge to policies of the Greenville County School District.  Initially many schools in the district selected 5th grade students to deliver an opening and closing prayer at graduation ceremonies.  The content of each prayer-- consistently Christian-- was reviewed in advance and approved by school officials.

After suit was filed, the school district admitted the problems with its practices and switched to a neutral policy.  If a student is selected to speak at graduation on the basis of neutral criteria such as class rank or academic merit, the student may decide on the content of the speech, which can be a religious message or prayer or can be a secular inspirational message.  The court issued an injunction against the school district's original policy, but refused to enjoin its more recent neutral approach, saying in part:

To the undersigned there is no more sacred liberty than an individual’s personal view of his or her cosmological origin – divine or chance, intentional or naturally selective. And, cultures have developed various names for the posture we assume in the direction of our creative source, most notably, prayer. But, also meditation and pilgrimage. Namaste. Surfing. Fly fishing. Science. The citizens of this country have the privilege of electing between the innumerable alternatives in religious practice. Our constitution has established but one caveat: “The First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State.” ...

The Christian community, in certain parts, feels besieged. This sense has two sources. The first is the view that people of faith cannot practice their religion and its tenets as they wish. The second is a genuine compassion for this country -- that it know a redeeming faith. To certain parts of Western Christianity, the lack of prayer in the public sector is not only a symptom of declining religiosity and moralism but is, in part, the cause itself.

In contrast, those of different faith or no religious faith at all are exhausted of this historical conflation of judeo-christianism and public ceremony persistent even to now and our exceedingly modern and pluralistic times. Those that oppose religious practice in schools are exasperated.

The Court has sympathy for both views, indeed, relates. But, the undersigned’s most overwhelming rhetorical reaction to all of this is how in 2015 is there still any debate or legal nuance to hash over prayers at graduation? One side insists on securing every slight remaining loophole of religious demonstration in school and the other is chasing to the ends of the earth the last pitiful vestiges of these practices that have been essentially neutered of all possible eternal meaning and effect....  It is conceivable, however, that, in this war over the private conscious made public, the better strategy is arms laid down in recognition of the human psychology that we are always made more in our submission than our entitlement....

Moving to examine the school district's modified policy, the court said in part:

[P]recisely because of the historical inclusion of prayer and religious speech at graduations, in this school district and State, it is conceivable that the cultural residue of prior practices might continue to color and confuse the application and invitation of, even now, constitutionally neutral practices. The undersigned is vigilant to identify any kind of wink and nod maneuvering.

But, the plaintiffs now have a serious kind of evidentiary problem. The impropriety of the old practice having been entirely confessed, the majority of the plaintiffs’ legal precedent and factual history are neutralized.....

What is continuously confused by the proponents of prayer in school or public forum is that these affirmative attempts to invite or measure the “voluntary choice” of students to pray, in the very same moment, renders that choice less than wholly voluntary. The very act of raising the issue alters the degree of its voluntariness. It is like the Observer Effect. In the moment we measure it, it is changed. So, when the decisions talk of private speech, in this perilous hybrid of public ceremony conducted by actual individuals and citizens, the expectation, if it means anything, is that the religiosity, if any at all, must spring forth from the imagination solely of the speaker and not as the result of expectations and pressures attributable, or historic, to, state action in the graduation or event itself. Moved in the spirit, so to speak....

This Court sits in one of the great parts of the world, in people and heritage. There are many in our city and county and State who are the inheritance of a meaningful practice of various religion, maybe Christianity most predominately. Their tenets and freedom to live them matter. But, there is a new and growing richness of population, here, in culture and background, that is transforming the complexion of mores and discourse and daily experience, in both public and private ways. The new practice of the defendant is constitutional. But, plaintiffs are affirmed. Not in their full request for legal remedy but in their aspiration for equal liberty. For too long school districts have cleverly resisted, with every manner of contortion, the force of Establishment jurisprudence to justifiably eliminate all state-sponsored rite. At least one has gotten it exactly right.

Concomitant to the effectiveness of the defendant’s new practice is the need that it be effectively communicated. The legacy of the historic inclusion of such prayers at graduation might still be coercively operative on contributing students.... Without affirmative instruction that prayer and religious messaging are no longer required, there is some risk that a student may yet still feel compelled. The defendant school district must, therefore, reasonably publicize the new practice to students participating in any graduations.

The American Humanist Association announced that it would appeal the decision.  Last week in a separate opinion (full text), the district court dismissed on mootness and standing grounds a challenge in the same case to the school district's policy of holding some graduation ceremonies at a religious chapel on a local college campus.

Challenge To Florida Tax Credit Scholarship Program Dismissed

A Florida state trial court judge has dismissed a constitutional challenge to the state's Tax Credit Scholarship Program.  In McCall v. Scott, (FL Cir. Ct., May 18, 2015), the court held that plaintiffs lack taxpayer standing because they are not challenging an appropriation. The court held that they also fail to allege a special injury that would give them standing on other grounds, saying:

whether any diminution of public school resources resulting from the Tax Credit Program will actually take place is speculative, as is any claim that any such diminution would result in reduced per-pupil spending or on any adverse impact on the quality of education.

Miami Herald reports on the decision.

9th Circuit En Banc Reverses Injunction Agaianst "Innocence of Muslims" On YouTube

In an en banc opinion in Garcia v. Google, Inc., (9th Cir., May 18, 2015), an 11-judge panel of the 9th Circuit dissolved a 3-judge panel's preliminary injunction (see prior posting) that had required Google to take down from YouTube all versions of the controversial video Innocence of Muslims that included the performance of misled actress Cindy Lee Garcia.  The injunction was sought by Garcia after she received death threats because her dubbed-over performance appeared to be criticizing the Prophet Muhammad.  Garcia claimed a copyright interest in the performance. The en banc majority held that the law and facts do not clearly favor her claim to a copyright in her acting performance, saying in part:

As Garcia characterizes it, “the main issue in this case involves the vicious frenzy against Ms. Garcia that the Film caused among certain radical elements of the Muslim community.” We are sympathetic to her plight. Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression. Garcia’s theory can be likened to “copyright cherry picking,” which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act

Judge Watford issued a concurring opinion and Judge Kozinski dissented. Electronic Frontier Foundation has further analysis of the decision.

Texas Judge Disciplined For Religious-Cultural Bias

The Texas State Commission on Judicial Conduct last week issued a Public Admonition (full text) against Texas state trial court judge Carter Tinsley Schildknecht, finding in part that she:

manifested a religious and/or cultural bias by describing District Attorney Munk as a “New York Jew” and by criticizing a prosecutor’s beard because it made him look like a “Muslim.”

Other charges involved a court session that lasted until 4:00 AM without breaks and an order refusing to allow the District Attorney to enter the court room. Besides the admonition, the judge was ordered to complete an additional four hours of education with a mentor on open courts and eliminating bias. Texas Lawyer reports on the Commission's action.

Irish Referendum On Same-Sex Marriage Will Be Held Friday

In Ireland on Friday voters will cast ballots in a referendum to approve same-sex marriage. (Referendum Commission Voters Guide). Voters will be asked to approve a Constitutional amendment which reads:

Marriage may be contracted in accordance with law by two persons without distinction as to their sex.

Sunday's Globe and Mail reports that polls show 70% favor the proposal, even though it is strongly opposed by the Catholic Church. 84% of Irish identify ans Catholic, and almost half go to mass every Sunday. According to yesterday's Irish Independent, Irish bishops are warning that passage of the amendment could threaten the Church's ability to teach children about traditional marriage. However Communications Minister Alex White rejected that claim, saying: "There is absolutely no basis whatsoever for any suggestion that the Church ...would be constricted or constrained in any way,... A specific provision in the legislation we're going to bring in if and when the referendum is passed would mean a Catholic priest, for example, will not be required to solemnise for example, the marriage of a same-sex couple."

Meanwhile, each side in the referendum issue is accusing the other of accepting improper campaign donations.  According to Saturday's Guardian, supporters of the referendum accuse opponents of receiving funding from conservative Christian groups in the United States. Ireland’s Standards in Public Office Commission rules bar foreign donations in the campaign.  A website operated by the US-based National Organization for Marriage is campaigning for a "no" vote, but NOM says it has not funneled any money to groups in Ireland.  Some on the "no" side claim that supporters have been funded by Irish-American multimillionaire Chuck Feeney and his Atlantic Philanthropies agency

School Board Sued Over Invocation Policy

The American Humanist Association announced yesterday that it has filed a lawsuit against a Texas school district on behalf of a former student challenging the school board's invocation policy.  The complaint (full text) in American Humanist Association v. Birdville Independent School District, (ND TX, filed 5/18/2015) alleges that the school board and its members violate the Establishment Clause by selecting elementary and middle school students, and occasionally high school students, from District schools to deliver prayers as part of the regular School Board meetings. Often the prayers are Christian and make specific reference to Jesus. The suit seeks an injunction and punitive damages.

Supreme Court Interprets Indigent Prisoner Litigation Statute

The U.S. Supreme Court today in Coleman v. Tollefson, (Sup. Ct., May 18, 2015), gave a literal interpretation to the "three strikes" provision of 28 USC Sec. 1915(g) that restricts the ability of inmates to bring multiple challenges to prison conditions without paying the required filing fees.  The section, which qualifies the right of indigent inmates to file federal lawsuits in forma pauperis, provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

In an opinion by Justice Breyer, the Court held unanimously that a dismissal which is under appeal still counts as one of the "three strikes" to prevent an additional lawsuit from being filed.  The Court left open the question of whether this interpretation also would preclude an appeal of a trial court decision that was itself the third strike. Today's decision upholds the view of the 6th Circuit below, and rejects a contrary interpretation by a number of other Circuits.  The decision will particularly impact inmates seeking religious accommodations from prison systems, since these cases rarely if ever will fall within the "imminent danger of serious physical injury" exception.

New Zealand Think Tank Suggests Limiting Charitable Status of Some Religious Institutions

The New Zealand Initiative, a public policy think tank supported by chief executives of major New Zealand businesses, yesterday issued a new report titled Giving Charities A Helping Hand. Among the Report's recommendations was a review of the Charities Act's definition of charitable purpose, and thus of which organizations qualify for tax exemptions.  The Report went on:

In addition, the review might usefully examine whether religious and cultural institutions should continue to qualify for charitable status simply because they pursue the goal of promoting religion and culture. This is not to say that such institutions should not be considered, but the assessment criteria should be the same for all organisations seeking the status of registered charities.

Minnesota Legislature Passes Bill Providing For Religious Objection To Autopsy

The Minnesota legislature last Saturday gave final passage to SF 1694 (full text) providing a right to object on religious grounds a medical examiner or coroner conducting an autopsy.  The bill provides:

If the representative of the decedent objects to the autopsy on religious grounds, an autopsy must not be performed unless the coroner or medical examiner determines that there is a compelling state interest to perform the autopsy.

However the bill lists 13 specific situations which will be considered to be compelling, and even if one of those is not present the state may counter a religious objection by showing a court in a summary proceeding that the autopsy is necessary and that need outweighs the state's interest in observing the decedent's religious beliefs. If an autopsy is carried out after a religious objection has been made, it must be performed by the least intrusive procedure consistent with the state's compelling interest. As reported by Bring Me The News, the bill now goes to Gov. Mark Dayton for his signature.

Recent Articles of Interest

From SSRN:

• Steven H. Resnicoff, Jewish Identity's Impact in a Nutshell, (Rutgers Journal of Law and Religion, Forthcoming).
• Mohamed Abdelaal, Leadership Accountability in Islam: Islamic Standards for Holding the Executive Accountable for Official Misconduct, (Global Journal of Comparative Law, Forthcoming).
• Frederick Mark Gedicks & Rebecca G. Van Tassell, Of Burdens and Baselines: Hobby Lobby's Puzzling Footnote 37, (in The Rise of Corporate Religious Liberty, Oxford University Press, Chad Flanders, Zoe Robinson & Micah Schwartzman, eds. 2015, Forthcoming).
• Nahshon Perez, Lautsi vs. Italy: Questioning the Majoritarian Premise, (May 14, 2015).
• Yuval Jobani & Nahshon Perez, Women of the Wall: A Normative Analysis of the Place of Religion in the Public Sphere, (Forthcoming: Oxford Journal of Law and Religion).
• Paul T. Babie, Religion and Constitutionalism: Oscillations Along a Continuum, (Journal of Religious History Vol. 39, No. 1, March 2015).
• Linda C. McClain, The Civil Rights Act of 1964 and 'Legislating Morality': On Conscience, Prejudice, and Whether 'Stateways' Can Change 'Folkways', (95 Boston University Law Review 891 (2015)).
• Ahmad T. Alharbi, Islamic Law and Banking: An Overview, (May 5, 2015).

From SmartCILP:

• Kenneth K. Ching, Would Jesus Kill Hitler?: Bonhoeffer, Church, and State, 11 Georgetown Journal of Law & Public Policy 529-576 (2013).
• Matthew A. Melone, Corporations and Religious Freedom: Hobby Lobby Stores--A Missed Opportunity to Reconcile a Flawed Law with a Flawed Health Care System. 48 Indiana Law Review 461-508 (2015).
• Jonathan S. Sussman, Prayer for Relief: Considering the Limits of Religious Practices in the Military, 20 Roger Williams University Law Review 75-118 (2015).

Atheist Activist Will Use RFRA To Challenge "In God We Trust" On Money

Atheist activist Michael Newdow is looking for individuals who will act as plaintiffs in a new set of challenges to "In God We Trust" on U.S. coins and currency.  For the first time, the suits will rely primarily on the Religious Freedom Restoration Act.  In a post last Friday on Friendly Atheist, Newdow says suits are being prepared in states in the seven federal circuits that have not already upheld the constitutionality of the national motto on coins and currency. The cases will argue that being forced to carry a message that violates one's religious ideals is substantially burdensome, and that the government has no compelling interest in having the motto on coins and currency. As pointed out by Inquisitr,  this is the latest recent attempt to turn state and federal RFRA's-- which have been strongly supported by conservative Christian groups-- into tools to oppose the conservative Christian agenda.

Russia Increases Fines For Organizations Disseminating "Extremist" Materials

Forum 18 reported Friday that amendments to Russia's Code of Administrative Offenses, Sec. 20.29, that became effective May 6 have sharply increased the fines imposed on "juridical persons" for mass dissemination of extremist materials on the Federal List.  Juridical persons include commercial, publishing, media and registered religious organisations. Fines for legal entities under the section previously were 50,000 to 100,000 roubles. The amendments increase the fines to 100,000 to 1 million roubles. Sanctions for individuals and other sanctions applicable to organizations did not change. This section of the Administrative Code has often been used in connection with materials confiscated from Muslims and Jehovah's Witnesses. According to Forum 18: "The Federal List now runs to over 2,500 items, often does not include full bibliographical details, and is irregularly updated, making it difficult for anyone to keep abreast of recent bans..."

D.C. Rabbi Sentenced To Over 6 Years On Voyeurism Charges

A Washington, D.C. Superior Court judge on Friday sentenced Rabbi Barry Freundel to nearly six and one-half years in prison after Freundel plead guilty to 52 counts of voyeurism (see prior posting).  Freundel secretly videotaped 150 women in the changing room of the mikveh (ritual bath) at Washington's Kesher Israel Synagogue.  AP reports that after a 3-hour sentencing hearing at which 16 of his victims testified, Freundel was sentenced to 45 days in prison on each of the 52 counts (a total of 2,340 days). (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Quezada v. Long, 2015 U.S. Dist. LEXIS 61753 (CD CA, May 11, 2015), a California federal magistrate judge dismissed, with leave to amend, a complaint by an Orthodox Jewish inmate that he was not allowed to take his religious meals out of the dining hall to his cell, so that he could perform ritual washing of hands and recitation of prayers before eating.

In Strickland v. Godinez, 2015 U.S. Dist. LEXIS 62179 (SD IL, May 12, 2015), an Illinois federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 62176, April 20, 2015) and denied a preliminary injunction to an inmate who practices Asatruar who sought protection from retaliation, participation in worship, ownership of various ritual items and setting aside of sacred land where rituals could be performed.

In Porter v. Wegman, 2015 U.S. Dist. LEXIS 63573 (ED CA, May 15, 2015), a California federal magistrate judge recommended dismissing a House of Yahweh inmate's complaint over lack of accommodation of his Passover observance and denial of participation in the Jewish kosher diet program.

Suit Charges Mall With Rejecting Christian Bookstore

In Missoula, Montana this week business owner Michael Burks filed suit against a local mall because it refused to allow him to open a Christian bookstore in retail space he was leasing. The complaint (full text) in Missoula Maulers, Inc. v. Southgate Mall Associates, (MT Dist. Ct., filed 5/11/2015), alleges that Burks became concerned about the profitability of a retail hockey store he was operating in the mall, and proposed replacing it with another of his businesses, a Christian bookstore. The mall refused.  The complaint alleges that the refusal was based on the store's status as a Christian bookstore, or "for some other malicious reason."  Helena Independent Record reports on the lawsuit.

Head of Jewish Public Policy Organization Is Stepping Down

The Forward reports today that Rabbi Steve Gutow is stepping down as head of the Jewish Council for Public Affairs where he has served for ten years.  Gutow and JCPA have been a leading voice for the American Jewish community on domestic and international public policy issues, including church-state concerns.  JCPA is the umbrella organization for 125 local Jewish Community Relations Councils and 14 national Jewish organizations. Gutow's resignation takes effect Dec. 31.  He will continue to be active on interfaith, environmental and anti-poverty issues, but will give up direction of the organization's day-to-day operations sooner.