Friday, July 29, 2016

7th Circuit Reluctantly Holds Title VII Does Not Cover Sexual Orientation Discrimination

In Hively v. Ivy Tech Community College, (7th Cir., July 28, 2016), the U.S. 7th Circuit Court of Appeals adhered to its past precedent and held that Title VII of the 1964 Civil Rights Act does not cover employment discrimination on the basis of sexual orientation. However two of the three judges (Judge Rovner who wrote the opinion and Judge Bauer) apparently did so hesitantly, joining in the lengthy portions of the opinion that review the anomalies produced by this conclusion.  They said in part:
As things stand now, ... our understanding of Title VII leaves us with a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms—wearing pants instead of dresses, having short hair, not wearing make up— but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman. We are left with a body of law that values the wearing of pants and earrings over marriage. It seems likely that neither the proponents nor the opponents of protecting employees from sexual orientation discrimination would be satisfied with a body of case law that protects “flamboyant” gay men and “butch” lesbians but not the lesbian or gay employee who act and appear straight....
In addition to the inconsistent application of Title VII to gender non‐conformity, these  sexual orientation cases highlight another inconsistency in courts’ applications of Title VII to sex as opposed to race....  [C]ourts and the Commission have consistently concluded that the statute prohibits discrimination based on an employee’s association with a person of another race, such as an interracial marriage or friendship..... But ... Title VII ... has not protected women employees who are discriminated against because of their intimate associations with other women, and men with men....
Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, ...; many of the federal courts to consider the matter have stated that they do not condone it...; and this court undoubtedly does not condone it.... But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent....
Judge Ripple concurred in the outcome, but did not join those part of the opinion expressing doubt about the continued viability of the past precedent.  The decision came in the case of a part-time adjunct professor at a community college who claimed that she was denied a full-time position. Indy Star reports on the decision.

Libertarian Candidate On Religious Liberty

The Washington Examiner yesterday posted an interview with Libertarian Party candidate for President (and former New Mexico governor), Gary Johnson, focusing largely on Johnson's views on religious liberty issues.  Here is an excerpt:
Do you think New Mexico was right to fine the photographer for not photographing the gay wedding?
"Look. Here's the issue. You've narrowly defined this. But if we allow for discrimination — if we pass a law that allows for discrimination on the basis of religion — literally, we're gonna open up a can of worms when it come stop discrimination of all forms, starting with Muslims … who knows. You're narrowly looking at a situation where if you broaden that, I just tell you — on the basis of religious freedom, being able to discriminate — something that is currently not allowed — discrimination will exist in places we never dreamed of."

Parish Assets Not Includable In Archdiocese Bankruptcy

As reported by the Minneapolis Star Tribune, a Minnesota federal bankruptcy court yesterday refused to include the assets of 200 parishes, schools and other entities as part of the assets of the Archdiocese of St. Paul and Minneapolis in its Chapter 11 bankruptcy proceedings.  In In re: The Archdiocese of Saint Paul and Minneapolis, (MN Bkruptcy., July 28, 2016), the court said in part:
The typical substantive consolidation is reserved for situations where the finances of two or more debtors are so confusingly intertwined that it is impossible to separate them. Nothing of the sort is alleged here. There were insufficient facts demonstrating a complete abuse of the non-debtors’ corporate form under Minnesota law governing religious corporations and organizations.
Reacting to the ruling,  Archbishop Bernard Hebda in a statement (full text) said that he is "particularly thankful that [the judge] was not swayed by the allegations that the Archdiocese had hidden assets and engaged in deceptive practices...." He added: "The Archdiocese nonetheless continues to stand ready to work with counsel for sexual abuse claimants to provide fair compensation as part of our Plan of Reorganization.." [Thanks to Tom Rutledge for the lead.]

Thursday, July 28, 2016

Mormon Judge's Recusal Not Required In Case Involving Indian Tribe

In Ute Indian Tribe of the Uintah & Ouray Reservation, Utah v. State of Utah, (D UT, July 25, 2016), a Utah federal district court rejected the contention that a federal judge's membership in the Mormon Church should be a basis for requiring recusal in cases involving Indians or Indian tribes.  To support the claim, the Ute Tribe cited a passage in Mormon scripture regarding a curse on the Lamanites, which some identify as American Indians.  In the long-running case involving the extent of tribal court jurisdiction, the court said:
plaintiff's argument is conclusively foreclosed by the Tenth Circuit's unequivocal holding that membership in and support of "the Mormon Church would never be enough to disqualify" a judge.
The court also refused to disqualify the judge on various other grounds as well. Fox 13 reports on the decision.

Kansas City Sued Over Tourism Grant To Baptist Convention

A lawsuit was filed last week by the American Atheists challenging a grant that had been approved by the Kansas City, Missouri City Council to support the National Baptist Convention that will be hosted in Kansas City in September.  According to the complaint (full text) in American Atheists, Inc. v. City of Kansas City, Missouri, (WD MO, filed 7/22/2016), a grant of $65,000 from the city's Neighborhood Tourist Development Fund was to fund shuttle bus transportation for convention delegates from their hotels to convention site. The complaint alleges that the grant violates the Establishment Clause and equal protection clause of the federal Constitution as well as the "no aid" clause of the Missouri Constitution. Plaintiffs also filed a motion (full text) for a preliminary injunction. An American Atheist press release announced the lawsuit. Reuters reports on the suit.

Wednesday, July 27, 2016

Israel's Parliament Enacts Law To Circumvent Court Ruling On Use of Mikvehs By Non-Orthodox Jewish Groups

According to the Jerusalem Post, in Israel on Monday the Knesset (Parliament) passed a controversial law that essentially circumvents an Israeli Supreme Court ruling last February (see prior posting) that opened publicly funded mikvehs  (ritual bath facilities) operated by Orthodox-controlled religious councils for use by the Conservative and Reform Jewish movements for their conversion ceremonies as well as for Orthodox conversions. The new law allows local rabbinates to limit which groups can use public mikveh facilities, essentially assuring that they will only be open to Orthodox Jewish use. At the same time, the government has proposed that the Jewish Agency-- whose funds come largely from private contributions by Jewish communities outside of Israel-- build up to four mikvehs for use by the Reform and Conservative Jewish movements. The new law does not take effect for nine months to provide time for these new mikvehs to be built. The more liberal streams of Judaism doubt whether the construction can take place that quickly. This is part of a broader struggle by non-Orthodox streams of Judaism to gain more official recognition in Israel, and strong Orthodox resistance to those attempts.

Nova Scotia Appeals Court Overturns Refusal To Recognize Christian Law School's Graduates

In Nova Scotia Barristers’ Society v. Trinity Western University, (NS Ct., App., July 26, 2016), the Nova Scotia Court of Appeal, without reaching religious liberty claims, held that the Nova Scotia Barristers' Society exceeded its authority in adopting a regulation that effectively barred graduates of a Christian law school based in British Columbia from being admitted to the bar in Nova Scotia by refusing to allow them to article there.  At issue was Trinity Western University's "community covenant" that requires students and faculty to abide by various Biblical teachings, including a ban on sexual intimacy outside of heterosexual marriage.  The Barristers' Society passed a resolution refusing to recognize Trinity Western's degrees because the community covenant is discriminatory.  The Society subsequently amended its regulations to allow non-recognition of law schools that unlawfully discriminate on grounds prohibited by the Charter of Rights and Freedoms and the Nova Scotia Human Rights Act. The court said:
It is inconceivable that the Legislature, without expressing a supportive word in either the Legal Profession Act or the Human Rights Act, intended that the Society’s Council could assert for itself an autonomous jurisdiction concurrent with that of a human rights board of inquiry.
The court went on to conclude that even if the Society's regulation had been properly adopted, Trinity Western did not violate Nova Scotia's Human Rights Act since all its activities occurred in British Columbia, and Trinity Western is not subject to the Charter of Rights because it is a private university. ADF issued a press release announcing the decision, and The Globe and Mail reports on it.

9th Circuit: Healthcare System's Pension Plan Is Not An Exempt "Church Plan"

The U.S. 9th Circuit Court of Appeals yesterday joined the 3rd and 7th Circuits in interpreting ERISA to cover plans of a number of religiously-affiliated health care systems that previously operated their pension plans on the assumption that they are exempt "church plans."  In Rollins v. Dignity Health, (9th Cir., July 26, 2016), the court concluded that under the language of ERISA, a pension plan is exempt as a church plan only if it was originally established by a church or convention of churches.  The class action complaint filed in 2013 alleges that as of that date Dignity Health's pension plan was underfunded by more than $1.2 billion.

Church Meeting Not Totally Immune From Judicial Examination

In Barrow v. Living Word Church, (SD OH, July 25, 2016), an Ohio federal magistrate judge refused to apply the ecclesiastical abstention doctrine to dismiss a suit by a former volunteer pastor who was removed from his position and from church membership, saying in part:
The Magistrate Judge agrees that the Free Exercise Clause requires this Court to abstain from judging the legitimacy of any Living Word decision about who is or can be a member or a clergyperson of their church or about whether it is proper to remove a person from either position on the basis of church moral judgment of that person’s behavior. If this were a case about those issues or indeed about interpreting church doctrine in any way, we would be required to abstain.  But the Free Exercise Clause does not shield church people from any secular court consideration of what happens in church meetings just because of where it happened. If a church meeting is used as a place to plan to commit torts involving third parties – which is what is alleged here regarding Living Word interference with Barrow’s book deals – ecclesiastical abstention will not shield the occurrences in the meeting from secular court consideration.

RLUIPA Applies To Law Aimed At Transitional Housing For Sex Offenders

In Martin v. Houston, (MD AL, July 25, 2016), an Alabama federal district court held that a pastor can invoke RLUIPA in challenging an Alabama law that would require him to close down his mobile home transitional housing arrangement for recently-released male sex offenders.  The law, which the state legislature made applicable to only one county, prohibits unrelated adult sex offenders from establishing residency in the same home or living less than 300 feet apart on the same property. The court concluded that the law constitutes a land use regulation under which the government makes individualized assessments of the proposed use of property.

Tuesday, July 26, 2016

2016 Democratic Platform On Protecting Religious Minorities Internationally

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the last in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Here is the Platform provision on international human rights dealing with Religious Minorities:
We are horrified by ISIS’ genocide and sexual enslavement of Christians and Yezidis and crimes against humanity against Muslims and others in the Middle East. We will do everything we can to protect religious minorities and the fundamental right of freedom of religion.

2016 Democratic Platform On International Human Rights of LGBT Communities

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the sixth in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Here is the Platform provision on international human rights of the LGBT community:
Democrats believe that LGBT rights are human rights and that American foreign policy should advance the ability of all persons to live with dignity, security, and respect, regardless of who they are or who they love. We applaud President Obama’s historic Presidential Memorandum on International Initiatives to Advance the Human Rights of Lesbian, Gay, Bisexual, and Transgender Persons, which combats criminalization, protects refugees, and provides foreign assistance. We will continue to stand with LGBT people around the world, including fighting efforts by any nation to infringe on LGBT rights or ignore abuse.

2016 Democratic Platform on Reproductive Health, Rights and Justice

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the fifth in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Note that the excerpt continues after the jump. Here is the Platform section on Securing Reproductive Health, Rights, and Justice:
Democrats are committed to protecting and advancing reproductive health, rights, and justice. We believe unequivocally, like the majority of Americans, that every woman should have access to quality reproductive health care services, including safe and legal abortion—regardless of where she lives, how much money she makes, or how she is insured.

2016 Democratic Platform on Tribal Nation Religious Traditions

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the fourth in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Here is an excerpt from the Platform section on Honoring Indigenous Tribal Nations:
We will manage for tribal sacred places, and empower tribes to maintain and pass on traditional religious beliefs, languages, and social practices without fear of discrimination or suppression. We also believe that Native children are the future of tribal nations and that the Indian Child Welfare Act is critical to the survival of Indian culture, government, and communities and must be enforced with the statutory intent of the law.

2016 Democratic Platform on Respecting Faith and Service

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the third in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Here is an excerpt from the Platform provision titled Respecting Faith and Service:
Democrats know that our nation, our communities, and our lives are made vastly stronger and richer by faith in many forms and the countless acts of justice, mercy, and tolerance it inspires. We believe in lifting up and valuing the good work of people of faith and religious organizations and finding ways to support that work where possible.

2016 Democratic Platform on LGBT Rights

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the second in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Note that the excerpt continues after the jump. Here is the Platform section on Guaranteeing Lesbian, Gay, Bisexual, and Transgender Rights:
Democrats applaud last year’s decision by the Supreme Court that recognized that LGBT people—like other Americans—have the right to marry the person they love. But there is still much work to be done. LGBT kids continue to be bullied at school, restaurants can refuse to serve transgender people, and same-sex couples are at risk of being evicted from their homes. That is unacceptable and must change.

2016 Democratic Platform on Religious Discrimination

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the first in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Here are two Platform excerpts that deal with religious discrimination:
Fixing our Broken Immigration System
...We reject attempts to impose a religious test to bar immigrants or refugees from entering the United States. It is un-American and runs counter to the founding principles of this country....
Guaranteeing Civil Rights
Democrats will always fight to end discrimination on the basis of race, ethnicity, national origin, language, religion, gender, age, sexual orientation, gender identity, or disability. We need to promote civility and speak out against bigotry and other forms of intolerance that have entered our political discourse. It is unacceptable to target, defame, or exclude anyone because of their race, ethnicity, national origin, language, religion, gender, age, sexual orientation, gender identity, or disability. While freedom of expression is a fundamental constitutional principle, we must condemn hate speech that creates a fertile climate for violence. We condemn Donald Trump’s demonization of prisoners of war, women, Muslims, Mexicans, and people with disabilities; his playing coy with white supremacists; and the climate of bigotry he is creating. We also condemn the recent uptick in other forms of hate speech, like anti-Semitism and Islamophobia....

Challenge To Church Pension Plan Not Barred By First Amendment

In Bacon v. Board of Pensions of the Evangelical Lutheran Church in America, (MN App., July 25, 2016), a Minnesota state court of appeals held that neither the First Amendment nor the Freedom of Conscience Clause of the Minnesota Constitution prevents a civil court from adjudicating a challenge to the manner in which the Lutheran Church retirement plans were managed. Participants in the pension plan sued claiming breach of fiduciary duty, breach of trust, and fraud and concealment in the administration and management of the Plans. The court said in part:
Because the plan documents themselves contain the fiduciary duties, a Minnesota court can adjudicate many of the claims without reaching the religious documents.... There does not appear to be a specific ruling of a governing ecclesiastical body at issue in this case....

Monday, July 25, 2016

Recent Articles of Interest

From SSRN:
From SmartCILP and elsewhere:

Church Directional Sign On Public Property Did Not Violate Establishment Clause

In Tearpock-Martini v. Shickshinny Borough, (MD PA, July 22, 2016), a Pennsylvania federal district court dismissed an Establishment Clause challenge to the action of a borough council that voted to permit a sign on a public property pointing the way to a local Baptist church.  Plaintiff whose property was near the sign was a member of council as well, but voted against the action. Borough employees helped install the sign which read: "Bible Baptist Church Welcomes You!".  The sign included a cross and a Bible and a directional arrow with the words "one block". Finding that the sign is a "religious display," the court concluded nevertheless:
A reasonable observer familiar with the history and context of the display would not perceive the sign as a government endorsement of religion.
(See prior related posting.)

Sunday, July 24, 2016

Recent Prisoner Free Exercise Cases

In Turner v. Sidorowicz, 2016 U.S. Dist. LEXIS 93339 (SD NY, July 18, 2016), a New York federal district court dismissed an inmate's complaint that he was removed from the kosher diet meal plan after he allegedly took food from the regular meal line.

In Powell v. City of New York, 2016 U.S. Dist. LEXIS 94186 (SD NY, July 14, 2016), a New York federal magistrate judge recommended dismissal of an inmate's complaint that Muslims in his housing unit were not called for Friday Jummah services for two consecutive weeks.

In Turner v. Schofield, 2016 U.S. Dist. LEXIS 94304 (WD TN, July 20, 2016), a Tennessee federal district court, while dismissing a number of claims, allowed a Nation of Islam inmate to move ahead with his complaint that pork meals are being served in the non-pork food line, that he is allergic to the food being served as  a pork replacement, and he has been refused passes for religious services when hi uses his Nation of Islam name to sign up.

In Burrell v. Loungo, 2016 U.S. Dist. LEXIS 94561 (MD PA, July 18, 2016), a Pennsylvania federal magistrate judge dismissed, with leave to amend, numerous claims by an inmate including his claim that his free exercise rights were infringed when his request for a furlough to attend an outside church service was denied.

In McCann v. Moreno, 2016 Tex. App. LEXIS 7715 (TX App., July 21, 2016), a Texas state appeals court affirmed the dismissal of a claim by a Jewish-Druid inmate that insistence he receive an insulin dose at 3:00 am violates his free exercise rights because his religion requires that he not eat or rise before sunrise.

In Henderson v. Muniz, 2016 U.S. Dist. LEXIS 94828 (ND CA, July 20, 2016), a California federal district court allowed a Muslim inmate to move ahead with his complaints regarding denial of daily and Friday prayers, denial of a qualified Muslim chaplain, necessary congregational artifacts, ability to celebrate Iftar and, as to one defendant, failure to provide hot Ramadan meals prepared and served by Muslim inmates.

In Etterson v. Newcome, 2016 U.S. Dist. LEXIS 94927 (ED VA, July 19, 2016), a Virginia federal district court refused to dismiss a Muslim inmate's complaint that  he was wrongly removed him from the list to receive Ramadan trays when he was seen eating and drinking after sundown but before the Ramadan trays had been served.

In Celestin v. Rock, 2016 U.S. Dist. LEXIS 95450 (ND NY, July 20, 2016), a New York federal magistrate judge recommended dismissing on qualified immunity grounds a Jewish inmate's complaint about not receiving Seder meals in special housing unit. The court stated: "although plaintiff may have had a well-established right to have the Seder meal brought to his cell, based on his individual belief that he could celebrate the Seder by himself, it was objectively reasonable for all the defendants to believe that they were not violating plaintiff's rights...."

In Flowers v. Mullet, 2016 U.S. Dist. LEXIS 95009 (WD OK, July 21, 2016), an Oklahoma federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 95473, June 27, 2016) and dismissed an inmate's complaint that a Bible was taken from his cell.

Saturday, July 23, 2016

Federal Agencies Seek Public Input On Contraceptive Mandate Accommodation

In a Request For Information (full text) published yesterday in the Federal Register, the IRS, HHS and Employee Benefits Security Administration asked for suggestions on ways to further accommodate objections by religious non-profits to  furnishing their employees coverage for contraceptive services in employer health plans.  The Release is the government's response to the U.S. Supreme Court's remand last May in Zubki v. Burwell. (See prior posting.) The Release says in part:
The Departments are using the RFI procedure because the issues addressed in the supplemental briefing in Zubik affect a wide variety of stakeholders, including many who are not parties to the cases that were before the Supreme Court. Other employers also have brought RFRA challenges to the accommodation, and their views may differ from the views held by the employers in Zubik and the consolidated cases. In addition, any change to the accommodation could have implications for the rights and obligations of issuers, third party administrators, and women enrolled in health plans established by objecting employers.
Responses must be submitted by Sept. 20. [Thanks to Jeff Pasek for the lead.] 

Cert. Petition Filed In Bakery's Refusal To Provide Cake For Same-Sex Wedding

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Masterpiece Cake Shop, Ltd. v. Colorado Civil Rights Commission, (cert filed 7/22/2016). In the case, a Colorado Court of Appeals held that a bakery owner's free exercise and free speech rights were not infringed when the Colorado Civil Rights Commission found that the refusal to create a wedding cake for a same-sex couple violates Colorado's public accommodation law.  The Colorado Supreme Court denied review. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.