Recent Articles and Books of Interest

From SSRN:

• Roger Cotterrell, Jack Balkin’s Constitutional Faith, (Public Law [2013] pp. 443-9).
• Brian Michael McCall, Decorating the Structure: the Art of Making Human Law, (Catholic Lawyer, Forthcoming).
• Jeremy Grunert, How Do You Solve a Problem Like Sharia? Awad v. Ziriax and the Question of Sharia Law in America, (Pepperdine Law Review, Vol. 40, No. 3, 2013).
• Roger Colinvaux, Rationale and Changing the Charitable Deduction, (Tax Notes, Vol. 138, No. 1453, 2013).
• Michael A. Helfand, What is a 'Church'?: Implied Consent and the Contraception Mandate, (Journal of Contemporary Legal Issues, 2013).

From SmartCILP:

• Kinch Hoekstra, Early Modern Absolutism and Constitutionalism, (34 Cardozo Law Review 1079-1098 (2013)).
• Arthur J. Jacobson, Job's Justice, (34 Cardozo Law Review 983-997 (2013)).
• David N. Wagner, The Obligation of Government Toward Humanity: The Role of the State In the Common Good, (35 Campbell Law Review 1-58 (2012)).
• Alex E. Wallin, John Finnis's Natural Law Theory and a Critique of the Incommensurable Nature of Basic Goods, (35 Campbell Law Review 59-81 (2012)).
• Poverty, Islamist Extremism, and the Debacle of Doha Round Counter-Terrorism: Part One of a Trilogy--Agricultural Tariffs and Subsidies. Foreword by Joel A. Nichols; article by Raj Bhala; reply by Robert J. Delahunty; response by Frank J. Garcia. 9 University of St. Thomas Law Journal 1-213 (2011).

New Books:

• Tahir Mahmood, Religion Law & Society - Across the Globe, (Universal Law Publishing Co., April 2013), reviewed by News4Education.
• Michael D'Antonio, Mortal Sins: Sex, Crime, and the Era of Catholic Scandal, (Thomas Dunne Books, April 2013).

Court Upholds Unemployment Benefit Denial To Employee Who Refused To Wear Company's Religious Mission Statement

In Mathis v. Unemployment Compensation Board of Review, (PA Commonwth. Ct., April 9, 2013), the Pennsylvania Commonwealth Court held that a former employee who left because he objected to wearing the religious message on his employer's identification badge voluntarily resigned without a compelling reason and so is ineligible for unemployment compensation benefits. The claimant, Paul Mathis, who was a sheet metal installer, objected to this mission statement of Christian Heating & Air Conditioning Co. on the reverse side of the badge:

This company is not only a business, it is a ministry. It is set on standards that are higher than man's own. Our goal is to run this company in a way most pleasing to the Lord. Treating employees and customers as we would want to be treated along with running a business as if we are all part of one big family is our plan.

The court concluded that Mathis had not offered evidence of any contrary sincerely held religious beliefs, nor did he attempt  to describe any actual conflict between a religious belief and the badge requirement.

Recent Prisoner Free Exercise Cases

In Sanders v. Cain, 2013 U.S. Dist. LEXIS 47634 (MD LA, March 29, 2013), a Louisiana federal district court permitted an inmate to proceed with his complaint that Mormon inmates were not allowed to hold worship services on Sundays at the main prison complex interfaith chapel. However the court dismissed various other claims, including complaints of lack of office space and fund-raisers to purchase religious material for the Mormon community, as well as retaliation and defamation claims.

In Catanzaro v. Harry, 2013 U.S. Dist. LEXIS 46671 (WD MI, Feb. 19, 2013), a Michigan federal magistrate judge recommended dismissal of an inmate's claim that he was not allowed to attend church services while he was on parole to a Residential Sex Offender Program.

In Johnson v. Bailey, 2013 U.S. Dist. LEXIS 46473 (SD IL, March 30, 2013), an Illinois federal magistrate judge found no free exercise or RLUIPA violations at present in the time given a Buddhist inmate to eat his meals. The court said however that if, as was the case two yeas ago, the inmate had only 2 to 5 minutes to eat his religious diet, this would be a substantial burden on his religious practice.

In Rippy v. North Carolina, 2013 U.S. Dist. LEXIS 45666 (WD NC, March 29, 2013), an inmate claimed his free exercise rights were infringed when he was denied access to a yoga class and a 12-step program and was told to behave during an Islamic service. A North Carolina federal district court dismissed the in forma pauperis action pursuant to the Prisoner Litigation Reform Act because the inmate had previously filed 3 other suits dismissed as frivolous.

In Dickerson v. Gusman, 2013 U.S. Dist. LEXIS 47592 (ED LA, April 2, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 47595, March 7, 2013) and dismissed for lack of prosecution an inmate's complaint that he is not allowed to attend Jumah and other Islamic services.

In Taylor v. Godinez, 2013 U.S. Dist. LEXIS 48596 (SD IL, April 3, 2013), an Illinois federal district court rejected the free exercise and RLUIPA claims by an inmate who was an ordained Baptist minister who attempted to satisfy his tithing obligations by giving away 10% of his commissary purchases to other inmates. He was disciplined for violating prison rules against trading and trafficking.

In Watkins v. Haynes, 2013 U.S. Dist. LEXIS 43881 (SD GA, March 27, 2013), a Georgia federal district court rejected in part a magistrate's recommendations (2012 U.S. Dist. LEXIS 187476, Aug. 23, 2012) and dismissed on qualified immunity grounds a claim by a Rastafarian inmate for a non-flesh food diet cooked and served with separate vessels and utensils from meat items.

In Prall v. Supreme Court, 2013 U.S. Dist. LEXIS 48788 (D NJ, April 4, 2013), a New Jersey federal district court dismissed complaints about disapproval and rejection in earlier state court proceedings of an inmate's conscientious objection (based on his Nation of Gods and Earth's beliefs) to participation in the criminal justice system.

In Gowers v. Haleen, 2013 U.S. Dist. LEXIS 49709 (D UT, April 4, 2013), a Utah federal district court rejected a Mormon inmate's complaints that his free exercise rights were infringed when he was denied participation in auxiliary religious activities such as choir, piano or organ practice; he was randomly excluded from worship services; and he was suspended from all activities including worship services for disciplinary reasons.

In Heim v. York County Prison, 2013 U.S. Dist. LEXIS 50074 (MD PA, April 8, 2013), a Jewish inmate complained about delays in responding to his kosher diet request and retaliation, including anti-Semitic caricatures, because of his insistence on a kosher diet. A Pennsylvania federal district court dismissed his suit against institutional and supervisory defendants, but permitted him to proceed against the chaplain, the complaint supervisor and the correctional officers that allegedly harassed him.

In People v. Osman, 2013 Cal. App. Unpub. LEXIS 2487 (CA App., April 8, 2013), a California state appellate court rejected free exercise and equal protection challenges to a risk factor analysis for sex offenders used by the probation department which treated as added risk the fact that an individual had not lived with a lover for at least 2 years. Defendant argued that his Muslim religion bars cohabitation before marriage.

In Abpikar v. Martin, 2013 U.S. Dist. LEXIS 50433 (ED CA, April 6, 2013), a California federal magistrate judge permitted a federal inmate to proceed on his complaint that he was not permitted to participate in group worship with other Muslim inmates.

Court Approves Recovery For Chicago's Meritless Lawsuit Against Religious Group

In World Outreach Conference Center v. City of Chicago, 2013 U.S. Dist. LEXIS 46943 (ND IL, April 1, 2013), on remand from the 7th Circuit (see prior posting), an Illinois federal district court resolved the remaining issues in a challenge to the City of Chicago's rezoning of a former YMCA building.  World Outreach Center, a religious organization, was delayed for two years while it obtained required licenses and permits from housing Hurricane Katrina evacuees there and from operating it as a community center.  The court rejected most of World Outreach's equal protection and religious discrimination claims. However the court held that the City had imposed a substantial burden on World Outreach by filing and maintaining a meritless lawsuit against it, and that World Outreach is entitled to recover the attorneys' fees it incurred in defending the lawsuit. It concluded that an inference of hostility to religion could be drawn from the filing of the suit.

UPDATE: An Amended Opinion was issued on June 10, 2013.

2nd Circuit: Establishment Clause Claim that "Feminism Is Religion" Dismissed On Collateral Estoppel Grounds

In Hollander v. Members of the Board of Regents of the University of the State of New York, (2d Cir., April 10, 2013), the 2nd Circuit dismissed on collateral estoppel grounds an action claiming that the state and federal governments have violated the Establishment Clause by providing funding to Columbia University which maintains an Institute for Research on Women’s and Gender Studies and a Women’s Studies program. Plaintiff argues that feminism is a "modern-day religion." The courts had dismissed a similar suit in 2010 on standing grounds, and so the issue cannot now be relitigated. The court added: "Hollander is an attorney. Before again invoking his feminism-as-religion thesis in support of an Establishment Clause claim, we expect him to consider carefully whether his conduct passes muster under Rule 11," the procedural rule that imposes sanctions on attorneys for filing frivolous lawsuits. (See prior related posting.)

EEOC Raises Triable Questions of Fact On Abercrombie's Failure To Hire Muslim Teenager

Equal Employment Opportunity Commission v Abercrombie & Fitch Stores Inc., (ND CA, April 9, 2013), involves the question of whether Abercrombie & Fitch violated Title VII of the 1964 Civil Rights Act when it failed to hire a Muslim teenager, Halla Banafa, as a part-time stock-room employee. Banafa wore a hijab to her job interview. Abercrombie has a "Look Policy" that governs the dress of employees, and it precludes any kind of head wear (though the company has made exceptions). A California federal district court rejected several of Abercrombie's defenses and held that triable issues of fact exist as to whether Banafa's religion was the motivating factor in her failure to be hired.

One of Abercrombie's more interesting defenses was a 1st Amendment argument that "forcing Abercrombie to grant a Look Policy accommodation to a Muslim in-store employee who wears a hijab for religious reasons would... amount to the government's compelling it to advertise a fashion inconsistent with its “East Coast” and “preppy” style...."  The court said, however, that "Abercrombie cannot achieve an end-run around Title VII by elevating the appearance of its stock room employees to protected commercial speech." However it left open "the more difficult question of whether a living model, whose stated job responsibility is to advertise Abercrombie's brand, constitutes commercial speech." [Thanks to Jeffrey Pasek for the lead.]

6th Circuit: Church Has Standing To Sue Over Police Investigations of Loud Music

In Faith Baptist Church v. Waterford Township, (6th Cir., April 11, 2013), the U.S. 6th Circuit Court of Appeals held that a Michigan federal district court was wrong in denying a  church standing to complain about police investigations of complaints about loud music coming from the church during rehearsals, services and concerts. (See prior posting.)  The 6th Circuit said:

Plaintiffs have shown they have a reasonable fear that their speech, free exercise of religion, and freedom of association will be chilled.... Although Defendants did not actually enforce the ordinance, they credibly threatened to do so. As a result, Plaintiffs sustained a concrete and particularized injury.

The court also held that  claims against the prosecuting attorney in his individual capacity for injunctive and declaratory relief were improperly dismissed by the district court on qualified immunity grounds.  However the appeals court affirmed the district court's dismissal of civil conspiracy, equal protection and 4th Amendment claims, as well as all claims against the prosecuting attorney in his official capacity and for monetary damages in his individual capacity. [Thanks to Brian D. Wassom for the lead.]

Appeals Court: Wrong Standard Used In Denying YMCA's Property Tax Exemption

In Larimer County Board of Commissioners v. Colorado Property Tax Administrator, (CO App., April 11, 2013), a Colorado state appeals court held that the Board of Assessment Appeals applied the wrong legal test in denying the YMCA (except for its chapels and religious activity center) a religious purposes exemptions from property taxes for its two extensive recreational sites. The court concluded that the appeals Board had not applied the statutory presumption in favor of an exemption where an applicant has filed a declaration that sets forth its religious mission and purposes. Instead the Board's engaged in a detailed examination of a number of factors in determining that the YMCA's uses were not solely and exclusively religious.  The court said that this approach fosters an excessive government entanglement with religion. Also the Board erred in not considering whether the YMCA qualified for a partial charitable use exemption.

Azerbaijan's President Approves Restrictive Law On Distribution of Religious Books and Materials

News.Az today reports that Azerbaijan's president Ilham Aliyev has signed an order approving amendments to the Law on Freedom of Religion. Under the amendments, individuals and religious organizations can only acquire and use religious books, e-books, videos and other religious products and materials that are labeled with a special control stamp by government authorities. Government approval is required for the production, import or export of religious materials which must also be marked with a special control stamp before distribution.  Sale of religious materials can take place only at specialized locations established with government approval.

2 Studies Released: Religious Courts In US and State Bans on Applying Foreign Or Religious Law

Earlier this week, the Pew Forum On Religion & Public Life released two related studies. The first, titled Applying God’s Law: Religious Courts and Mediation in the U.S. surveys the routine operation of religious courts across the United States. The second is titled State Legislation Restricting Use of Foreign or Religious Law.  It surveys developments in 32 states in which legislation has been proposed, including 6 in which legislation has been enacted, to ban state courts from considering foreign or religious law in their decision making.

President Awards Medal of Honor Posthumously To Korean War Army Chaplain

Yesterday, President Obama awarded the Medal of Honor posthumously to Army Chaplain Emil Kapaun for his bravery during the Korean War. (White House Blog report.)  The President recounted at length Chaplain Kapaun's bravery in comforting the dying in a battle with Chinese troops early in the Korean War at Unson, and his subsequent service to his fellow prisoners of war in their prison camp where Kapun eventually died from disease and mistreatment. (Full text of President's remarks.)

In 2-1 Decision, State Appeals Court Says Judge's Reference To Biblical Passage Was Not A Problem

In In re Marriage of Sarah Peterson v. Adam Peterson,(MN Ct. App., March 25, 2013), the Minnesota Court of Appeals, in a 2-1 decision, upheld a trial court's award of sole physical custody of 3 minor children to the wife in a divorce action. One issue in the case was whether the trial judge improperly interjected her personal beliefs about a Biblical passage regarding a husband's authority to make decisions in the home.  The majority concluded that the judge's "brief, personal comments" were not an abuse of discretion, particularly since husband's lawyer did not object to them.

Judge Ross, dissenting in part, however took a very different view of the trial judge's comments that in her own marriage she dismissed the Biblical injunction that wives should obey their husbands. The dissent said in part:

I think a district court acts beyond its broad discretion in deciding child custody if the judge personally suggests her approval or disapproval of a religious doctrine that only one of the parties holds.... [K]nowing that the doctrine had taken a lead role in the custody trial, the judge revealed her bias by volunteering that in her own marriage she had “dismissed” the doctrine.

Judge Ross also expressed another concern:

Despite overwhelming evidence and findings recognizing that the children have always attended and continue to be actively involved in the marital church where they grew up, the district court never assesses how the children’s need for stability is impacted by the disruption in their church-related activities if Sarah has sole physical custody.

The Minneapolis Star Tribune reports on the decision.

Israeli Court Orders Release of Women Arrested For Praying With Prayer Shawls At Western Wall

In Israel, a Jerusalem Magistrate's Court yesterday ordered the release of 5 women who had been arrested after participating with Women of the Wall in their monthly women's prayer service near the Western Wall. According to Times of Israel, the women were arrested for wearing prayer shawls (traditionally worn only by men) during their Rosh Hodesh (new month) service. Women of the Wall have engaged in increasingly large prayer services since 1988 in their efforts to obtain legal recognition of egalitarian Jewish prayer at the Wall. The arrests came just as the Israeli government is moving toward a possible compromise between the more liberal branches of Judaism and the Orthodox rabbis who currently control the customs observed at the Western Wall plaza.  Judge Sharon Lary-Bavly, in ordering the women's release from custody, said that there were no grounds for their arrest and likened actions by the police to blaming a rape victim for the clothes she wears.

UPDATE: A transcript of the Court hearing and judge's ruling is available online via Failed Messiah blog.

President's Faith-Based Advisory Council Issues Report On Combating Human Trafficking

Yesterday the President's Advisory Council on Faith-based and Neighborhood Partnerships presented its recommendations on combating human trafficking in a 35-page report titled Building Partnerships to Eradicate Modern-Day Slavery. Advisory Council chair Susie Stern presented the report, and Melissa Rogers, director of the White House Faith-Based Office thanked the Advisory Council for its recommendations.

7th Circuit: Civil Courts Are Bound By Church Ruling That Defendant Is Not A Member Of A Religious Order

McCarthy v. Fuller, (7th Cir., April  10, 2013), is a complicated dispute over who is entitled to the possession of documents and artifacts of Sister Mary Ephrem who claimed to have experienced a series of apparitions of the Virgin Mary in which Mary told Sister Ephrem, "I am Our Lady of America." Sister Ephrem willed all her property to Sister Mary Joseph Therese, referred to in the litigation by her birth name, Patricia Fuller.  However, a lawyer, Kevin McCarthy and a Catholic layman, Albert H. Langsenkamp, who claims to be a Papal Knight of the Holy Sepulcher, contend they are entitled to the property and artifacts after they had a falling out with Fuller.  In this decision, an interlocutory appeal of an Indiana federal district court's order, the U.S. 7th Circuit Court of Appeals held that civil courts must recognize a ruling by the Holy See that "Patricia Ann Fuller is not a member of any religious Institute, formally recognized by the Catholic Church." That status is relevant to several issues in the litigation brought by McCarthy against Fuller-- allegations by Fuller that McCarthy defamed her by calling her a "fake nun," and allegations by McCarthy that Fuller defrauded him by misrepresenting herself as being a nun and living in a convent. Writing for a unanimous 7th Circuit panel, Judge Posner said:

In [its amicus brief] the Holy See has spoken, laying to rest any previous doubts: Fuller has not been a member of any Catholic religious order for more than 30 years. Period. The district judge has no authority to question that ruling. A jury has no authority to question it. We have no authority to question it.

AP reports on the decision.

Kansas Governor Signs Preservation of Religious Freedom Act

Yesterday, Kansas governor Sam Brownback signed HB 2203, the Preservation of Religious Freedom Act (full text). The new law provides in part:

Government shall not substantially burden a person’s civil right to exercise of religion even if the burden results from a rule of general applicability, unless such government demonstrates, by clear and convincing evidence, that application of the burden to the person: (1) Is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest....

Section 4 of the new law, however, limits its application in a number of ways.  Among other things, it does not apply to suits challenging prison or jail rules or conditions. It also does not authorize the application or enforcement in Kansas courts "of any law, rule, code or legal system other than the laws of the state of Kansas and of the United States." AP has further background on the law.

Singapore Court Refuses To Strike Down Ban On Male Homosexual Conduct

In Lim Meng Suang v. Attorney General, (Singapore High Ct., April 9, 2013), a Republic of Singapore trial court refused to declare Singapore's ban on male homosexual conduct to  be unconstitutional. Holding that the  ban is "an issue of morality and social values," the court in a lengthy opinion concluded that it cannot substitute its own views for that of Parliament where Parliament's decision is not "undeniably wrong." The National Law Journal, reporting on the decision, quotes the reaction of the gay couple who unsuccessfully challenged the law: "it is disheartening that we are criminals in the eyes of the law because of a segment of society ... insist on pushing their version of religion and morality on us."

President Renews Faith-Based Advisory Council

Last Friday, President Obama issued an Executive Order (full text) extending the life of the President's Advisory Council on Faith-Based and Neighborhood Partnerships for another two years. [Thanks to Blog From the Capital for the lead.]

Washington State AG Sues Florist Who Refused To Sell Flowers For Gay Wedding

Washington state attorney general Bob Ferguson announced yesterday that his office has filed a consumer protection lawsuit against a retail florist for refusing to sell flowers to a customer who wanted to purchase them for his wedding.  The complaint (full text) in  State of Washington v. Arlene's Flowers, Inc.,(Super Ct., filed 4/9/2013), alleges that the flower shop owner, Barronelle Stutzman, told customer Robert Ingersoll that she could not provide the flowers for his same-sex wedding "because of [her] relationship with Jesus Christ." The complaint alleges further that the sexual orientation discrimination involved here is a violation of the public accommodate provisions of Washington's Law Against Discrimination and thus a per se violation of the state's Consumer Protection Act. AP reports on the lawsuit.

South African Human Rights Commission Says Christian Center Violates LGBTI Rights

The South African Human Rights Commission yesterday issued a statement finding the Christian-affiliated Creare Training Centre has violated Lesbian, Gay, Bisexual, and Transgender (LGBTIs) rights to equality, dignity, religion, freedom of association, freedom and security of the person and education. The Centre was created by Our Father's Home Church and specializes in Christian studies and Christian Arts and Mission, It does not permit anyone in a same-sex "lifestyle" who "is not willing to be disciplined in this regard" to continue to study or lecture at the Centre. The Centre adds: "We offer ministry to help people that want to change their sexual orientation...." Gay Star News reports on the statement.