Proposed HHS Rule Will Give Contraceptive Alternative To Women Excluded By Employers' Religious Objections

The New York Times reported yesterday that the Department of Health and Human Services has issued a new proposed rule that would blunt the impact of its recent final rules allowing employers to assert religious or moral objections to furnishing contraceptive coverage in their health plans. Under the proposed rule, any woman denied coverage from her employer because of the employer's religious or moral objections would be eligible for the family planning program for low income families offered under Title X of the Public Health Service Act, regardless of the woman's actual income. [Thanks to Steven H. Sholk for the lead.]

Victim of Neo-Nazi Website Attacks Can Move Ahead With Lawsuit

In Gersh v. Anglin, (D MT, Nov. 14, 2018), a Montana federal district court denied a motion to dismiss made by Andrew Anglin, publisher of the alt-right website the Daily Stormer in a suit against him for invasion of privacy, intentional infliction of emotional distress and violation of Montana's Anti-Intimidation Act.  The suit was filed by Tany Gersh, a realtor who was the subject of abusive articles on Daily Stormer over her interactions with the mother of neo-Nazi leader Richard Spencer. As described by the court:

In the articles, Anglin described Gersh's behavior as extortion, and Anglin drew heavily on crude ethnic stereotypes, painting Gersh as acting in furtherance of a perceived Jewish agenda and using Holocaust imagery and rhetoric. He called for "confrontation" and "action"....

When Gersh filed her Complaint in the spring of 2017, she and her family had received more than 700 disparaging and/or threatening messages over phone calls, voicemails, text messages, emails, letters, social media comments, and Christmas cards. 

Refusing to dismiss the suit on free speech grounds without a more fully developed factual record, the court said in part:

At minimum, Gersh has made a plausible claim that Anglin' s speech involved a matter of strictly private concern.... 

The context of the case is, at first blush, public-a series of blog posts on an alt-right "news" blog, which often engages with political issues, albeit from an extremist viewpoint. However, under a liberal interpretation of the Complaint, the content of the speech may be seen as strictly private; Anglin launched a campaign of unrelated personal attacks on a Whitefish realtor, her husband, and their son because of a perceived conflict between Gersh and the mother of Anglin's friend, another white supremacist. Although Anglin drew heavily on his readers' hatred and fear of ethnic Jews, rousing their political sympathies, there is more than a colorable claim that he did so strictly to further his campaign to harass Gersh...

CNN reports on the decision. [Thanks to Scott Mange for the lead.]

Employer's Proposed Religious Accommodations Were Adequate

In Miller v. Port Authority of New York & New Jersey, (D NJ, Nov. 13, 2018), a New Jersey federal district court held that the religious accommodations offered to a newly-hired Jewish employee (shift swapping or use of vacation or comp time) were reasonable and the employee's preferred accommodation of his Sabbath observance did not need to be offered. The court said in part:

The employees in Miller’s unit are unionized, and as a result, Port Authority is bound by a collective bargaining agreement. Creating a permanent shift schedule for Miller exempting him from work on the Sabbath or the Jewish holidays, without first offering that option to more senior employees, would have violated the agreement’s seniority provision. It also would have violated the past-practices provision of the agreement, which requires that the established rotational schedule be maintained. In short, Miller’s preferred accommodation would have placed Port Authority in violation of its collective bargaining agreement and required other, more senior employees to work less desirable additional Friday evening and Saturday shifts.

On this record, the religious accommodation offered by Port Authority was reasonable. And because the blanket exemption proposed by Miller would have imposed more than a de minimis hardship, the employer was not required to accept it.

[Thanks to Steven H. Sholk for the lead.]

Christian Student Group Sues University For Registration

A suit was filed in Colorado federal district court this week by a Christian student organization at the University of Colorado that was denied registered status because it requires its officers must share and personally hold its Christian beliefs. It also requires prospective members to agree with and promote the organization's purposes. Registered status gives an organization access to student activity fees. The complaint (full text) in Ratio Christi at the University of Colorado v. Sharkey, (D CO, filed 11/14/2018) alleges:

[The University] has promised to register Ratio Christi only if the group changes its leadership and membership criteria. That is, Plaintiffs must agree to abandon their rights to free speech, free association, free exercise of religion, freedom from unconstitutional conditions, due process, and equal protection to access campus resources available to all other student organization.

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

Free Exercise Claim Over Search Warrant Execution Fails

In Brown v. Scanlon, 2018 U.S. Dist. LEXIS 194049 (MD PA, Nov. 13, 2018), a Pennsylvania federal magistrate judge recommended dismissing a free exercise claim growing out of the execution of a search warrant at the residence of Shannon Brown.  Brown claims that her 1st Amendment rights were infringed when police forced her to lie on the floor handcuffed in her underwear during the search.  She says that as a Muslim woman, being in a state of undress around men caused her to feel defiled and embarrassed. She also complained that she was forced to remove her head scarf for her mugshot at the courthouse.

Catholic Diocese Opposes Taking of Church Land For Border Fencing

The Catholic Diocese of Brownsville, Texas filed suit in federal district court on Nov. 6 seeking a temporary restraining order to prevent the federal government from exercising its eminent domain power to take church land to construct border fencing and security.  According to the Brownsville Herald, last month the Department of Homeland Security waived more than two dozen laws to facilitate construction of border fencing through Hidalgo County and filed a Declaration of Taking that includes the La Lomita Chapel and Juan Diego Academy in Mission, Texas. The Diocese argues that the taking violates its free exercise rights and that the DHS waivers exceeded the authority granted by Congress.

New York's Top Court Denies Mandamus In Battle Against Kaporos Ritual

In Alliance to End Chickens as Kaporos v New York City Police Department, (NY Ct App, Nov. 14, 2018), New York state's highest court agreed that a petition for a writ of mandamus to require enforcement of public health and animal cruelty laws should be denied. According to the Court:

Plaintiffs allege those laws are routinely violated when thousands of chickens are killed during the religious practice of Kaporos performed in certain Brooklyn neighborhoods prior to Yom Kippur....

Enforcement of the laws cited by plaintiffs would involve some exercise of discretion.... Moreover, plaintiffs do not seek to compel the performance of ministerial duties but, rather, seek to compel a particular outcome. Accordingly, mandamus is not the appropriate vehicle for the relief sought.

WABC reports on the decision.

WAPO Runs Study of Southern Poverty Law Center

The Washington Post Magazine last week published a lengthy investigative article on the Southern Poverty Law Center.  Titled The State of Hate, frames the issue it explores as follows:

The SPLC was founded in 1971 to take on legal cases related to racial injustice, poverty and the death penalty. Then, in the early 1980s, it launched Klanwatch, a project to monitor Klan groups, neo-Nazis and other white supremacists. Their hate seemed self-evident. But eventually the SPLC began tracking — and labeling — a wider swath of extremism. And that’s when things became more complicated.

Today the SPLC’s list of 953 “Active Hate Groups” is an elaborate taxonomy of ill will.....

For decades, the hate list was a golden seal of disapproval, considered nonpartisan enough to be heeded by government agencies, police departments, corporations and journalists. But in recent years, as the list has swept up an increasing number of conservative activists — mostly in the anti-LGBT, anti-immigrant and anti-Muslim categories — those conservatives have been fighting back.....

Ironically, the assault on the SPLC comes at a time when, by other measures, it has reached a new peak of public regard. Last year the group raised a whopping $132 million through its famously relentless direct-mail appeals and other giving.

Get Religion has more on the WAPO article.

ACLU Settles Free Speech Suit Against Missouri City

ACLU of Missouri announced yesterday that it has settled a lawsuit which it filed earlier this year against the city of Wentzville after the city removed a woman from a Board of Alderman's meeting for criticizing a 16-foot "In God We Trust" sign that had been installed on the front of the meeting room dias. According to the ACLU:

Tonight, the Wentzville governing body passed and read aloud a resolution affirming its commitment to uphold First Amendment freedoms and acknowledging that members of the public of any or no religions tradition are welcome to participate in local government. The city also resolved to apply the updated city code evenhandedly, without censoring speech based on its content during the open forum portion of a Wentzville Board of Aldermen meeting.

The settlement also stipulates that Wentzville must advise law enforcement officers assigned to public meetings that they have an independent obligation to uphold the Constitution. Officers will now independently assess if probable cause exists before removing someone from a meeting.

9th Circuit Hears Oral Arguments In Title VII Case Against Salvation Army

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Garcia v. Salvation Army (video of full arguments). In the case, an Arizona federal district court dismissed a Title VII religious discrimination claim brought against the Salvation Army. Plaintiff claimed that she was subjected to discrimination, retaliation, and hostile work environment after she stopped attending Salvation Army services.  The court held that Title VII's religious organization exemption applies and that the Salvation Army did not waive the defense by failing to assert it as an affirmative defense. (See prior posting.) [Thanks to John Jackson for the lead.]

8th Circuit: Title VII Failure To Accommodate Does Not Equal Retaliation

In EEOC v. North Memorial Health Care, (8th Cir., Nov. 13, 2018), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, interpreted Title VII's unlawful retaliation provision. At issue is the interpretation of 42 U.S.C. § 2000e-3(a) that makes it illegal to discriminate against an employee or applicant for employment because the person "has opposed" an employer's discriminatory practices. In the case, an employment offer to a Seventh Day Adventist registered nurse was withdrawn because she was unable to work Friday night shifts and an accommodation was not feasible.  The majority held that merely requesting religious accommodation is not necessarily an expression of opposition to a denial of the accommodation.  Judge Grasz dissenting explained the opposing views:

I do share the Court’s apparent concern that Title VII not be read so that meritless discrimination claims based on a failure to accommodate may simply be repackaged and resurrected as retaliation claims. In my view, however, it is the causation element that properly does the work of weeding out such claims, not the opposition requirement. Where an employer, after denying an accommodation request that it is not legally obligated to grant, refuses to hire an applicant because the applicant cannot or will not perform the job without accommodation, the employer can show the legitimacy of the action.... Unlike such repackaged claims, the claim here should survive because there is evidence of retaliation, namely the evidence that Sure-Ondara told North Memorial she would work the job even without the accommodation and would show up for work if she could not find a replacement. Despite her willingness to work without accommodation, North Memorial withdrew its job offer, making it reasonable for a fact-finder to infer that it did so because she had requested an accommodation.

Chaplaincy Program of Wisconsin Justice Department Challenged

Suit was filed yesterday in a Wisconsin state trial court challenging the constitutionality of a new Chaplaincy Program for employees and their families created by the Wisconsin Department of Justice. The complaint (full text) in Freedom From Religion Foundation, Inc. v. Schimel, (WI Cir. Ct., filed 11/13/2018),  alleges that six chaplains from across the state have been appointed initially-- all white males from Christian faiths. The program excludes secular mental health professionals. Chaplains operate under the direction of a paid Chaplaincy Program Coordinator. The suit contends that the program violates the U.S. Constitution's Establishment Clause.  FFRF issued a press release announcing the filing of the lawsuit.

FBI Releases 2017 Hate Crimes Report

Yesterday the FBI released  its 2017 Hate Crime Statistics. The number of hate crime incidents increased 17% from last year-- 6,121 incidents in 2016 and 7,175 in 2017. However the year-to-year data may not be fully comparable since 1,000 additional agencies reported in 2017.  In 2017, hate crimes motivated by religious bias accounted for 1,564 incidents (totaling 1,679 offenses), or 22% of all incidents. This compares with 1,273 incidents in 2016. (See prior posting). Hate crimes based on race comprised 58% of all incidents in 2017.  Of the religiously-motivated hate crimes in 2017, some 938 (60%) were anti-Jewish while 273 (17%) were anti-Muslim. 73 incidents were anti-Catholic. ADL issued a press release analyzing the report.

Recent Prisoner Free Exercise Cases

In Buckley v. Munk, 2018 U.S. Dist. LEXIS 188322 (ND CA, Nov. 2, 2018), a California federal district court dismissed the complaint of an Orthodox Jewish former pre-trial detainee that he was not allowed to have candles and a particular prayer book or to wear his tallit katan outside his cell.

In Clark v. Foxwell, 2018 U.S. Dist. LEXIS 188343 (D MD, Nov. 1, 2018), a Maryland federal district court dismissed a suit by an inmate who said he is Jewish who complained that he did not receive proper kosher meals.

In Wali Ibn Abd-Ali v. Sibanda, 2018 U.S. Dist. LEXIS 188885 (WD PA, Nov. 2, 2018), a Pennsylvania federal magistrate judge recommended allowing a Muslim inmate to move ahead with his complaint that is ability to participate in the Ramadan fast was impeded, but recommended dismissing his claim that he could not participate in Eid feasts.

In Meeks v. Boulden, 2018 U.S. Dist. LEXIS 190037 (ED CA, Nov. 6,2018), a California federal magistrate judge dismissed, with leave to amend, an inmate's complaint that his religious beliefs prohibit him from drinking tap water and he was denied distilled or bottled water as an alternative.

In Alvarez v. Lassiter, 2018 U.S. Dist. LEXIS 190236 (WD NC, Nov. 6, 2018), a North Carolina federal district court dismissed an inmate's complaint that his religious books and literature were taken from him, violating his free exercise rights.

At Pope's Request, U.S. Bishops Postpone Vote On New Conduct Standards

Crux reports that in a surprise move, on Sunday night the Holy See notified Cardinal Daniel DiNardo, president of the US Conference of Catholic Bishops, that the Pope wants U.S. bishops to postpone their vote on new standards of conduct for bishops and the creation of an outside commission to enforce it. The Pope wants the vote to wait until after a Feb. 21-24 international bishops' conference on clerical sex abuse.  In his opening address to the USCCB General Assembly in Baltimore yesterday (full text), Cardinal DiNardo said in part:

in light of this morning’s news, the nature of my address changes. We remain committed to the specific program of greater episcopal accountability that we will discuss these days. Consultations will take place. Votes will not this week. But we will prepare ourselves to move forward.

Jury Awards $3.2M To Muslim Employee For Religious Discrimination

According to the Press-Enterprise, last week a jury in a San Bernardino, California trial court awarded $3.2 million in damages for religious discrimination to a former warehouse employee at Loma Linda University Medical Center.  Muslim former employee Hugo Lizzaraga claimed that he was harassed for four years and ultimately was dismissed because of his Muslim religious beliefs.  Lizzaraga claimed that the harassment began after he converted to Islam and also broke his thumb and was placed on modified duty by his physician. A month before he was fired, he was suspended-- accused of telling a co-worker what he would have done differently in the 2015 San Bernardino terrorist shooting.

Albany Episcopal Bishop Defies Parent Body On Same-Sex Marriage Rites

In July, the General Convention of the Episcopal Church passed Resolution B012 Marriage Rites for the Whole Church, which was designed to give local congregational access to all couples wishing to have a same-sex marriage ceremony.  The Resolution stated in part:

[I]n dioceses where the bishop exercising ecclesiastical authority ... holds a theological position that does not embrace marriage for same-sex couples, and there is a desire to use such rites by same-sex couples in a congregation or worshipping community, the bishop exercising ecclesiastical authority ... shall invite, as necessary, another bishop of this Church to provide pastoral support to the couple...

Last week, in response to Resolution B012 that is to become effective on Dec. 3, the Bishop of Albany, William Love, who has been an opponent of same-sex marriage, issued a Pastoral Letter (full text) that reads in part as follows:

I cannot in good conscience as a bishop in God’s holy Church agree to what is being asked for in B012. While I respect the authority of General Convention as an institutional body, my ultimate loyalty as a bishop in God’s holy Church is to God....

Until further notice, the trial rites authorized by Resolution B012 of the 79th General Convention of the Episcopal Church shall not be used anywhere in the Diocese of Albany by diocesan clergy (canonically resident or licensed)....

Albany Times-Union reports on the Bishop's action.

Restaurant Settles EEOC Suit On Dress Code Accommodation

The EEOC last week announced the settlement of a religious discrimination suit it had filed against the operators of a Flowood, Mississippi restaurant, Georgia Blue.  The restaurant agreed to pay $25,000 to settle a complaint by an Apostolic Pentecostal waitress who objected to the company's dress code that required servers to wear blue jean pants.  The company had refused to accommodate her religious beliefs that women should only wear skirts or dresses. The settlement also requires the company to change its employee policies and to provide non-discrimination training to managers.

Recent Articles of Interest

From SSRN:

• Thomas Scott-Railton, A Legal Sanctuary: How the Religious Freedom Restoration Act (RFRA) Could Protect Sanctuary Churches, (Yale Law Journal, Forthcoming).
• Tamar Hostovsky Brandes, Israel's Nation-State Law – What Now for Equality, Self-Determination, and Social Solidarity?, (October 1, 2018).
• Jan Petrov, The Populist Challenge to the European Court of Human Rights, (The Jean Monnet Working Paper Series (NYU School of Law) 3/18 (2018).
• Eric Segall, Putting the 'Exercise' Back in the Free Exercise, (Kentucky Law Journal, Forthcoming).
• Elizabeth Kukura, Revisiting Roe to Advance Reproductive Justice for Childbearing Women, (Notre Dame Law Review Online, Vol. 94, 2018).
• Deborah Hellman, The Epistemic Commitments of Nondiscrimination, (Virginia Public Law and Legal Theory Research Paper No. 2018-60 (2018).
• Yaoyao Fan, Kose John, Hong Liu & Luqyan Tamanni, Security Design, Incentives, and Islamic Microfinance: Cross Country Evidence, (October 14, 2018).

From SmartCILP and elsewhere:

• Judge Shams Al Din Al Hajjaji,  Government By Judiciary In Islam: Islamic Theory of Government and Mal/practice of Muslim Governments (Turkey, Saudi Arabia, Egypt and Morocco), 48 California Western International Law Journal 283-339 (2018).
• Babak Manouchehrifar, Is Planning ‘Secular’? Rethinking Religion, Secularism, and Planning, [Abstract], Planning Theory and Practice (2018).

Recent Prisoner Free Exercise Cases

In Wright v. Bibens, 2018 U.S. Dist. LEXIS 187463 (D CT, Nov. 1, 2018), a Connecticut federal district court dismissed a Rastafarian inmate's complaint that he was denied common fare meals for 4 days after he was transferred to a different institution.

In Braun v. Sterno, 2018 U.S. Dist. LEXIS 187654 (D CT, Oct. 31, 2018), a Connecticut federal district court allowed a Native American inmate to move ahead with free exercise and RLUIPA claims against a correctional officer who dumped out his medicine bag and kicked and stomped sacred items in it.

In Harris v. Cearlock, 2018 U.S. Dist. LEXIS 187839 (CD IL, Nov. 2, 2018), an Illinois federal district court allowed an African Hebrew Israelite inmate to move ahead with his complaint that he was denied a religious diet.

In Jean-Pierre v. Clay, 2018 U.S. Dist. LEXIS 187606 (MD GA, Nov. 2, 2018), a Georgia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 188138, Oct. 10, 2018) and allowed a Muslim inmate to move ahead only on his claim for nominal damages for restricting his prayer time during Ramadan, prohibiting him from leading prayers and other religious instruction, and removing him to isolation in retaliation for continuing to pray during Ramadan.

In Prosha v. Robinson, 2018 U.S. Dist. LEXIS 188313 (ED VA, Nov. 2, 2018), a Virginia federal magistrate judge allowed a House of Yahweh inmate to move ahead with his RLUIPA complaint that he did not receive an adequate religious diet during Passover.