Recent Articles of Interest

From SSRN:

• Kevin H. Govern, International Humanitarian Law (IHL): Five Key Dynamics Shaping the Global Landscape, Security, and Freedom of Religion and the Way Ahead, (Chapter 4 in The Persecution and Genocide of Christians in the Middle East - Prevention, Prohibition, & Prosecution, Edited by Ronald J. Rychlak and Jane F. Adolphe (Angelico Press, 2017)).
• Caroline Mala Corbin, Government Employee Religion, (Arizona State Law Journal, Forthcoming).
• Lotem Perry-Hazan & Oshrat Perelstain, Mobilizing Ethnic Equality in Admissions to Schools: Litigation, Politics, and Educational Change, (Journal of Educational Change, Forthcoming).
• David B.Oppenheimer, Dr. King's Dream of Affirmative Action, (August 7, 2017).
• Joel Harrison, Autonomy and the Liberal Imagination in Jane Calderwood Norton's Freedom of Religious Organizations, (July 16, 2017).
• Scientia Moralitas, International Journal of Multidisciplinary Research, Vol. 2, No. 1, 2017. (Articles by Ioan Gheorghe Rotaru; Ganoune Diop; Mihaela Alexandra Tudor; and Cosmin Tudor Ciocan; Godina Bojan, Arpad Kovacs; Arthur Wagner, Alexandru Bulearcă).
• Donna Farag, From Tweeter to Terrorist: Combatting Online Propaganda When Jihad Goes Viral, (American Criminal Law Review, Vol. 54, No. 4, 2017).
• Catherine Jean Archibald, Transgender Bathroom Rights Post-Obama, (Forthcoming, Tennessee Journal of Race, Gender, and Social Justice).
• Shawn Fields, Is it Bad Law to Believe a Politician? Campaign Speech and Discriminatory Intent, (San Diego Legal Studies Paper No. 17-297, 2017).

From SSRN (Islamic Law):

• Joshua T. Carback, On Sharia in American Family Law: Confronting the Dangers of Legal Pluralism, (January 17, 2016).
• Jaber Seyvanizad, WMD Under Islamic International Law, (International Journal of Law, Volume 3; Issue 1; January 2017; Page No. 12-16).

Suit Seeks To Protect Eruv In New Jersey Township

A suit was filed last week in New Jersey federal district court against the Township of Mahwah, NJ, seeking to prevent its use of a zoning ordinance that prohibits signs on utility poles as a basis to require Orthodox Jews to dismantle an eruv that was set up in a portion of the township.  The eruv, created by agreement with the local utility company, makes use of lechis (thin plastic pipes) on utility poles.  The complaint (full text) in Bergen Rockland Eruv Association, Inc. v. Township of Mahwah, (D NJ, filed 8/11/2017), contends that the township's enforcement actions target the Orthodox Jewish community's exercise of religion, and thus violates the 1st and 14th Amendments as well as RLUIPA. NorthJersey.com reports on the lawsuit. [Thanks to Steven A. Sholk for the lead.]

2nd Circuit: Pregnancy Discrimination Claim Against Synagogue Can Proceed

In Shultz v. Congregation Shearith Israel of the City of New York, (2d Cir., Aug. 10, 2017), the U.S. 2nd Circuit Court of Appeals held that giving an employee a notice of termination of employment can be an "adverse employment action" under Title VII of the 1964 Civil Rights Act even though the notice is rescinded before the date that the firing becomes effective.  The court thus allowed a long-time Program Director for a New York synagogue to move ahead with her claim that she was given a termination notice because of disapproval of the fact that she was pregnant at the time of her recent marriage.  The court also allowed her to move ahead with her claim under the Family Medical Leave Act. [Thanks to Rabbi Michael Simon for the lead.]

Recent Prisoner Free Exercise Cases

In Hoever v. Belleis, (11th Cir., Aug. 10, 2017), the 11th Circuit held that denial of an English language Bible and devotional materials to an inmate for 20 days while in disciplinary confinement did not impose a substantial burden on his religious exercise.

In Harris v. Holmes, 2017 U.S. Dist. LEXIS 124062 (D NJ, Aug. 7, 2017), a New Jersey federal district court refused to issue a preliminary injunction against a prison's new policy on purchase of religious oils.

In Dunn v. Todd, 2017 U.S. Dist. LEXIS 124302 (ND NY, July 10, 2017), a New York federal district court dismissed with leave to amend an inmate's complaint that he was unable to contact his pastor and family.

In Keaton v. Ponte, 2017 U.S. Dist. LEXIS 124303 (SD NY, Aug. 4, 2017), a New York federal district court dismissed with leave to amend an inmate's complaint about strip searches in the chapel area.

In Shields v. Ahern, 2017 U.S. Dist. LEXIS 125424 (ND CA, Aug. 8, 2017), a California federal district court dismissed a Muslim inmate's complaints regarding halal meals, hiring of a Muslim chaplain, group prayer and study, religious items and books, and receiving packages from an Islamic vendor.

In Buckley v. County of San Mateo, 2017 U.S. Dist. LEXIS 125420 (ND CA, Aug. 8, 2017), a California federal district court dismissed with leave to amend a former inmate's complaint that his free exercise rights were infringed because Kosher meals provided were not actually Kosher and he was not allowed to wear certain religious items outside of his cell.

In Zapata v. Ducart, 2017 U.S. Dist. LEXIS 125453 (ND CA, Aug. 8, 2017), a California federal district court allowed a Messianic Jewish inmate to move ahead with his complaint that he was not allowed to participate in the kosher diet program.

In Ali v. Romero, 2017 U.S. Dist. LEXIS 125696 (D MD, Aug. 7, 2017), a Maryland federal district court refused to dismiss at least until the prison chaplains had been served an inmate's complaint over the lack of Islamic prayer services.

In Holmes v. Engleson, 2017 U.S. Dist. LEXIS 126228 (ND IL, Aug. 9, 2017), an Illinois federal district court dismissed a Rastafarian inmate's complaint that his dreadlocks and beard were removed forcibly.

In Simmons v. Williams, 2017 U.S. Dist. LEXIS 126294 (SD GA, Aug. 9, 2017), a Georgia federal magistrate judge recommended that a Muslim inmate be allowed to move ahead with his action for injunctive relief (but not his damage claims) under the 1st Amendment and RLUIPA for being dragged through a commons area wearing wet boxer shorts, which violated his religious beliefs that he must keep his awrah covered in the presence of others.

Judge Wrongly Relied On Defendant's Christian Religious Background To Enhance Sentence

In Miller v. People of the Virgin Islands, (VI Sup. Ct., Aug. 9, 2017), the Virgin Islands Supreme Court remanded for re-sentencing a case in which defendant plead guilty as an accessory after the fact to embezzlement of funds from a hospital.  The Supreme Court concluded that the sentencing judge wrongly relied on defendant's religion to impose a longer sentence that the one recommended in defendant's plea agreement. The sentencing judge had referred to defendant's "claims to Christianity and her theology degree" in explaining the longer sentence.

Free Exercise Claim Against Hospital Over Diet For Daughter Moves Ahead

In Dixon v. Department of Health and Human Services, (ED MI, Aug. 11, 2017), a Michigan federal district court allowed parents whose daughter was ordered hospitalized for mental health treatment to proceed with several claims.  Among them is a claim that the hospital is violating the parents' free exercise rights by feeding their daughter pork with knowledge of the family's religious beliefs.

Court Refuses To Enforce Arbitration Award In Church Control Dispute

In Patterson v. Shelton, (ED PA, Aug. 11, 2017), a Pennsylvania federal district court dismissed an attempt to obtain enforcement of an arbitration award entered over ten years ago in a dispute over control of the General Assembly of the Church of the Lord Jesus Christ.  The underlying litigation began 22 years ago.  the court said in part:

Petitioner seeks to have this Court adjudicate a church controversy by confirming an Arbitration Award, albeit one that was vacated, which would require extensive inquiry into church matters. A solution to the parties’ problems involves more than mere application of neutral principles of law. It involves a deeper look into the church’s control over its leaders, how they acquire and maintain authority, and how the church is being managed.... Probing deeper into these matters would do exactly what the law prohibits courts from doing: becoming entangled in church issues.

The court also relied on several other grounds in dismissing the case.

Federal Suit By Houston Employees Seeks To Preserve Benefits For Same-Sex Couples

A suit was filed yesterday in a Texas federal district court by Houston city employees and their same-sex spouses seeking to preserve the same spousal benefits that are received by other city employees. In a decision handed down last month, the Texas Supreme Court kept alive a suit by Houston taxpayers challenging the city's extending spousal benefits to same-sex married couples. (See prior posting.) In the complaint (full text) filed yesterday in Freeman v. Turner, (SD TX, filed 8/10/2017), plaintiffs asked the federal district court to declare that the city may not rely on the Texas DOMA Statute and the Texas Marriage Amendment, which have previously been held unconstitutional by federal courts, to justify depriving city employees with same-sex spouses to to the same spousal benefits extended to other married employees. The complaint also asks the court to find that denial or withdrawal of such benefits would be unconstitutional under the equal protection and due process clauses. Texas Observer reports on the lawsuit.

Court Rejects Challenge To Permit Denial For Outdoor Weddings

In Epona v. County of Ventura, 2017 U.S. Dist. LEXIS 126533 (CD CA, Aug. 9, 2017), a California federal district court dismissed a free exercise challenge to the denial of a conditional use permit to Epona Estate  that wants to rent out its premises for outdoor weddings. Plaintiff claimed that the county selectively discriminates against weddings. (See prior related posting.)

Suit Challenges Trump's Reversal of Military Policy On Transgenders

Five members of the military filed suit yesterday challenging President Trump's announcement through Twitter that he will reverse the Obama Administration's policy that allows transgender individuals to serve openly in the military.  The complaint (full text) in Doe v. Trump, (D DC, filed 8/9/2017), contends that the White House counsel's office has turned Trump's decision into official guidance which will be communicated to the Department of Defense.  The suit alleges that Trump's directive unconstitutionally discriminates against transgender individuals, is arbitrary, and that the government is estopped from rescinding plaintiffs' rights.  NPR reports on the lawsuit.

Religious School Asserts Ecclesiastical Abstention Defense

As reported by Houston Chronicle, an Episcopal elementary school in Galveston, Texas has asserted an ecclesiastical abstention defense to a lawsuit filed by the mother of a student alleging an inadequate response by the school to bullying and racial harassment of her sixth-grade son.  Plaintiff says that 3 of her son's classmates gave her son a piece of paper folded to resemble a KKK hood, and bullied them in other ways. The school only required the students to send apology notes, and gave a one day suspension to one of the students.  The defendants' motion to dismiss (full text) in Beans v. Trinity Episcopal School, (TX Dist. Ct., filed 8/1/2017) argues:

As a religious institution, Trinity has a constitutionally-protected freedom to make decisions regarding the discipline of its students without judicial interference. The courts cannot second guess those decisions, even in the guise of purportedly "secular" causes of action arising from tort principles. Plaintiffs' claims ask the Court to intrude upon Trinity's internal affairs and governance relating to discipline, investigation, and standards of conduct—which is precisely what the ecclesiastical abstention doctrine was designed to prevent.

Differential Marriage License Requirement For Foreign Born Held Unconstitutional

In Vo v. Gee, (ED LA, Aug. 8, 2017), a Louisiana federal district court granted a permanent injunction, holding unconstitutional a Louisiana statute that treats differently applicants for a marriage license who were born outside the United States from those born in the U.S. or one of its territories.  Under the law a birth certificate must be produced in order to obtain a marriage license, but those born in the U.S. may obtain a waiver of the requirement.  Those born elsewhere, such as the Vietnamese refugee who is plaintiff in the case, are not entitled to the same type of waiver and must also provide a passport or visa.  The court concluded that this violates the Equal Protection clause as well as the substantive due process right to marriage, even though a subsequent Louisiana law allows a judicial waiver of the birth certificate requirement.  Washington Post reports on the decision.

Case Remanded For Determination of Whether Church Is Hierarchical

In  Slagle v. Church of the First Born of Tennessee, (TN App., Aug. 7, 2017), a case involving a dispute over control of church property after a split among church members, a Tennessee appellate court remanded the case to the trial court for a determination of whether the church was congregational or hierarchical. In doing so, the court noted that a church may be congregational in some respects while it is hierarchical in other respects. The court noted that here the relevant question is whether the church is congregational for purposes of ownership and control of property.

In Zimbabwe, Businessman Sues Church Leader For False Prophecies of A Debt Cancellation Miracle

In Zimbabwe, a suit was filed last week against United Family International Church leader Prophet Emmanuel Makandiwa and his wife Ruth.  According to Bulawayo24 News, former members of the church-- a businessman and his wife from the country's capital of Harare-- are seeking damages of $6.5 million (US), claiming that the Church leader through false prophecies and fraud convinced them to donate over $1.1 million (US) over a 5-year period by telling them that this would lead to a debt cancellation miracle. Plaintiffs also seek damages for various related conduct, including the Church leader's convincing them to hire a disbarred lawyer to try to recover $1.7 million from a lender.

Recent Articles of Interest

From SSRN:

• Ira C. Lupu & Robert W. Tuttle, Trinity Lutheran Church v. Comer: Paradigm Lost?, (Forthcoming, American Constitution Society for Law & Policy Supreme Court Review, October Term 2016).
• Meghan Boone, The Autonomy Hierarchy, (Texas Journal on Civil Liberties and Civil Rights, Vol. 22, No. 1, 2016).
• Julio C. Colón, Improving Dispute Resolution for Muslims in the United States, (International Conference on Dispute Resolution 2017: Modern Trends in Effective Dispute Resolution, International Islamic University of Malaysia (2017)).
• Nicholas Aroney, Individual, Community and State: Thoughts on Jane Norton, Freedom of Religious Organizations, (July 17, 2017).
• Adam Perry, Pardons and Mercy, (July 30, 2017).
• Robert L. Tsai, Obama's Conversion on Same-Sex Marriage: The Social Foundations of Individual Rights, (Connecticut Law Review, Vol. 50, 2017).

From SSRN (International and Comparative Law):

• Jaclyn L. Neo, Realizing the Right to Freedom of Thought, Conscience, and Religion: The Limited Normative Force of the ASEAN Human Rights Declaration, (Human Rights Law Review (2017, Forthcoming)).
• Jaclyn L. Neo, Secularism Without Liberalism: Religious Freedom and Secularism in a Non-Liberal State, (Michigan State Law Review, 2017).
• John Lunstroth, Human Rights and Cultural Diversity in UNESCO Bioethics, (in Advancing Global Bioethics, Vol. 6: Religious Perspectives on Bioethics and Human Rights (Tham, Joseph, Man Kwan, Kai, Garcia, Alberto (Eds.) 2017, Springer Nature, New York, Forthcoming).

From SSRN (Jewish Law):

• Raphael Cohen-Almagor, The Monopoly of Jewish Orthodoxy in Israel and Its Effects on the Governance of Religious Diversity, (in Anna Triandafyllidou and Tariq Modood (eds.), The Problem of Religious Diversity (Edinburgh: Edinburgh University Press, 2017), pp. 250-272).
• Levi Cooper, Mysteries of the Paratext: Why Did Rabbi Shneur Zalman of Liady Never Publish His Code of Law?, (Diné Israel 31 (2017): 43-84).

Recent Prisoner Free Exercise Cases

In Henry v. Bright, 2017 U.S. Dist. LEXIS 119374 (D SC, July 31, 2017), a South Carolina federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 119701, July 11, 2017) and dismissed a complaint that prison policies do not permit Buddhist inmates to use scented oils.

In Roberts v. Perry, 2017 U.S. Dist. LEXIS 120621 (WD NC, Aug. 1, 2017), a North Carolina federal district court upheld a prison's refusal to recognize "Nation of Israel" (a white-supremacist group) as an approved religion and the concomitant limit on the number of religious texts that an adherent can possess.

In Evans v. Bilal, 2017 U.S. Dist. LEXIS 121795 (ND IL, Aug. 2, 2017) an Illinois federal district court dismissed an inmate's complaint that he was not permitted to participate in religious services with other Muslim inmates.

In Butler v. California Department of Corrections, 2017 U.S. Dist. LEXIS 122724 (ND CA, Aug. 3, 2017), a California federal district court permitted an inmate to move ahead with his attempt to obtain showing of a Nation of Islam video and obtaining a NOI chaplain.

Retaliation Suit By Dismissed Nursing Student Moves Ahead

In Brown v. William Rainey Harper College, 2017 U.S. Dist. LEXIS 121333 (ND IL, Aug. 1, 2017), an Illinois federal district court allowed a student who was dismissed from the Practical Nursing Certificate Program at William Rainey Harper College to move ahead with her complaint that the action taken against her resulted from her practice of praying with her patients, as well as because of her complaints to the Department of Education's Office of Civil Rights.

3rd Circuit Rejects Secular Anti-Abortion Group's Challenge To ACA Contraceptive Mandate

In Real Alternatives Inc. v. Secretary Department of Health and Human Services, (3d Cir. Aug. 4, 2017), a 3-judge panel of the U.S. 3rd Circuit Court of Appeals held unanimously that the Equal Protection Clause does not require the government to provide a secular anti-abortion group with the same exemption from the Affordable Care act contraceptive coverage mandate as is provided to houses of worship. The majority said in part:

Real Alternatives is in no way like a religious denomination or one of its nontheistic counterparts—not in structure, not in aim, not in purpose, and not in function. We do not doubt that Real Alternatives’s stance on contraceptives is grounded in sincerely-held moral values, but “religion is not generally confined to one question or one moral teaching; it has a broader scope.”

The court by a vote of 2-1 also rejected a claim under RFRA that religious exercise of employees who oppose contraceptives, but work for secular employers, is substantially burdened when the government requires the employer to include contraceptive coverage in their health plans. Judge Jordan filed an an opinion dissenting on this issue.  He contended that requiring objecting employees to pay for insurance that includes contraceptive coverage creates a substantial burden and that the government had not used the least restrictive means to achieve a compelling governmental interest. Legal Intelligencer reports on the decision.

Cert. Filed In Wyoming's Disciplining of Judge For Refusing To Perform Same-Sex Marriages

A petition for certiorari (full text) was filed with the U.S. Supreme Court today in Neely v. Wyoming Commission on Judicial Conduct and Ethics, (cert. filed 8/4/2017).  In the case, the Wyoming Supreme Court held that a judge who, because of religious objections, refuses to perform same-sex marriages violates the Wyoming Code of Judicial Conduct. (See prior posting). ADF issued a press release announcing the filing of the petition for review.

German Court Says Church of Flying Spaghetti Monster Is Not a Religion

In Germany, a court in Frankfurt an der Oder has upheld a decision by the Infrastructure Ministry of Brandenburg to deny the Church of Flying Spaghetti Monster (FSM) a permit to put up signs announcing its religious services. As reported this week by The Vanguard, FSM contended that it should be able to erect road signs publicizing its "noodle masses" just as local Catholic and Protestant churches erect signs giving details of their worship services. However the court ruled that FSM is neither a religious community or a community with a common world view.