Religious Scholar Among Recipients of Nation Medals of Arts and Humanities

Yesterday President Obama presented the 2015 National Medals of the Arts and Humanities to 22 awardees. (Full text of President's remarks.) Among them was Princeton Professor of Religion Elaine Pagels, who has written widely on Gnosticism  and early Christianity.  The citation presented to her reads:

The 2015 National Humanities Medal to Elaine Pagels for her exploration of faith and its traditions.  Through her study of ancient manuscripts and other scholarly work, she has generated new interest and dialogue about our contemporary search for knowledge and meaning.

Gay Student Sues Catholic High School That Barred His Bringing Same-Sex Date To Homecoming

Lance Sanderson, a former student at Memphis, Tennessee's Christian Brothers High School, filed suit in a Tennessee state court on Tuesday alleging that the private Catholic boy's school-- which receives federal funds-- violated Title IX when it prohibited him from bringing his same-sex date from another school to the school's Homecoming Dance.  NBC News reports that the suit seeks $1 million in damages for breach of contract, intentional infliction of emotional distress, negligent training and a violation under Title IX of the 1972 Education Amendments.  The Obama administration, and several courts, have recently concluded that Title IX is broad enough to include sexual orientation discrimination. IdentitiesMic has more details on the failed attempts by the school to work out a compromise with Sanderson, and its ultimate policy statement that technically would have allowed him to bring a same-sex date from his own school.

Fire Department Can Exclude Employee's Religious Messages From E-Mail System

In Sprague v. Spokane Valley Fire Department, (WA App., Sept. 21, 2016), the Washington state Court of Appeals, in a 2-1 decision, upheld a fire department's termination of a firefighter who insisted on using the department's internal e-mail system to distribute religious messages.  Jonathan Sprague, founder of the Spokane Christian Firefighters Fellowship, was found to have violated departmental policies limiting use of the e-mail system to official communications. He sent out messages, including scriptural passages, on meetings of his group. Judge Korsmo's majority opinion concluded:

It should go without saying that a fire department's business is firefighting, not discussion of religion. Pointing out that Mr. Sprague violated the prohibition against public use in that specific manner did not thereby convert the policy to one of opposition to religious speech any more than challenging use of e-mails to promote chess tournaments or a political candidate could be interpreted as anti-chess or anti-political speech. The policy was anti-private use, not anti-religion.

Judge Lawrence-Berrey filed a concurring opinion.  Chief Judge Fearing dissented in an opinion that begins with a quotation from the Biblical Book of Matthew. He said in part:

The majority holds that the fire department held the prerogative to preclude the use of its e-mail for the voicing of religious messages. I note that a government entity, as a general proposition, enjoys this prerogative. Nevertheless, the Spokane Valley Fire Department opened its email system to employee messages of solving personal problems and societal ills through the grace of God when the fire department delivered employee assistance programs newsletters, through the department e-mail, addressing those same problems and ills. The Spokane Valley Fire Department's discipline of Sprague for addressing a topic from Sprague's spiritual perspective constituted viewpoint discrimination in violation of Sprague's free speech rights. The government may not prefer secular chatter over religious oration.

Faith-Based Recovery Home Loses Challenges To Fire Code Enforcement

In Affordable Recovery Housing v. City of Blue Island, (ND IL, Sept. 21, 2016), an Illinois federal district court in a 40-page opinion dismissed a claim under RLUIPA and its Illinois counterpart, the 1st and 14th Amendments, as well as under the Fair Housing Amendments Act, brought against the city by a faith-based recovery home for drug and alcohol addicts. At issue was the city's enforcement of its fire code sprinkler system requirement that led to the eviction of 73 men from the facility, and the city refusal to grant an accommodation that would have given the facility 3 years to install a sprinkler system.

The court held that the eviction was pursuant to the fire code, not the zoning code, so RLUIPA does not apply. Moving to the claim under the Illinois Religious Freedom Restoration Act, the court then held that the eviction stemming from a delayed enforcement of the fire code and the refusal to grant an accommodation did not impose a substantial burden on the facility's religious exercise and, in any event, the city's enforcement of its sprinkler regulations was in furtherance of a compelling governmental interest. The court also rejected the claim that the city violated RLUIPA by demanding that the facility apply for a special use permit.

Massachusetts Supreme Court Upholds Rulings In Landlord's Assault On Muslim Tenant

In Commonwealth v. Obi, (MA Sup Jud Ct, Sept 21, 2016), the Massachusetts Supreme Judicial Court upheld a series of rulings by a trial court judge in the criminal trial of a female landlord for assault and battery after she pushed a tenant, who is Muslim, down a flight of stairs. Defendant Daisy Obi, described by the court as "a septuagenarian Christian minister," had  history of harassing tenants, but in this case she also made a number of anti-Muslim statements to tenant Gilhan Suliman with whom she had a number of landlord-tenant issues.

After a jury trial, the trial judge sentenced Obi to 6 months in jail and 18 months probation with two special conditions: (1) she must disclose to prospective tenants that she had been convicted of assaulting a tenant and she had several previous harassment prevention orders issued against her, and (2) she must attend an introductory class on Islam. The court upheld the disclosure requirement, and refused to consider Obi's challenge to the requirement she attend a class on Islam since objections to it were not raised at trial. However the court observed:

conditions of probation that touch on religion and risk incursion upon constitutionally protected interests should be imposed only with great circumspection.

Finally the Court upheld the trial judge's refusal to allow defendant to exercise a peremptory challenge against a juror who wore a headscarf of the type commonly worn by Muslim women.

VA Updates Guidelines On Religious Exercise At Its Facilities

On Aug. 19, the Veterans Administration issued an internal memorandum (full text) updating its Policy Guidance on Religious Exercise and Religious Expression In VA Facilities.  The memo revises a 2014 Guidance.  A press release yesterday from the Chaplain Alliance for Religious Liberty welcomes the revision, saying in part:

This should make clear that churches may sing Christmas carols and distribute Christmas cards at VA hospitals. Further, veteran organizations may set up MIA/POW tables that include a sacred text.

Russian Supreme Court Bans Aum Shinrikyo As Terrorist Organization

According to Interfax and Russia Beyond the Headlines, the Russian Supreme Court yesterday agreed with the Prosecutor General's Office and the Federal Security Service that Aum Shinrikyo is a terrorist organization. The decision to ban the organization's activities in Russia was made after an in camera hearing by the Court.  Wikipedia describes Aum Shinrikyo as a Japanese doomsday cult best known for its 1995 Sarin attack on the Tokyo subway system. Aum Shinrikyo combines elements of Eastern religions and Christianity, but is generally seen as an offshoot of Japanese Buddhism.

Magistrates Lack Standing To Challenge Memo From Administrative Office On Same-Sex Marriages

In Breedlove v. Warren, (NC App., Sept. 20, 2016), the North Carolina Court of Appeals dismissed for lack of standing a suit by two former magistrates who objected on religious grounds to a Memo issued by the state Administrative Office of the Courts (AOC) indicating that magistrates have a constitutional duty to perform marriages for same-sex couples on the same basis as other marriages, and that refusal to do so is grounds for suspension or removal from office. The two resigned after they were not granted religious accommodations. The Court concluded that, despite the AOC memo, under North Carolina law it is various judges, not the AOC, that has authority to sanction, suspend or remove magistrates. The Court concluded:

the allegations in plaintiffs’ complaint... fail to demonstrate an injury that defendants were capable of inflicting upon plaintiffs, and by extension fails to show that such an injury could be redressed.

WRAL News reports on the decision, and reminds readers that late last year the North Carolina legislature enacted a bill giving magistrates the right to opt out of performing marriages on the basis of sincerely held religious beliefs. (See prior related posting.)

Court Denies Preliminary Injunction To Football Coach Seeking To Pray On Field

According to AP, a Washington federal district court judge on Monday denied a preliminary injunction to high school football coach Joe Kennedy.  The coach, who says he was acting in accordance with his Christian beliefs, was suspended with pay by the Bremerton, Washington school district after he insisted on praying at mid-field at the end of games. He sued, claiming the school's directive barring him from doing so is unconstitutional. (See prior posting.) The denial of preliminary relief means that the school does not have to immediately reinstate Kennedy.

Does Sharia-Compliant Financing By Non-Profit Cause Loss of Property Tax Exemption?

In what may well be a case of first impression, the Islamic Center of Nashville on Monday filed suit in a Tennessee federal district court challenging its inability to maintain its property tax exemption after it financed new building construction employing a well-recognized Sharia-compliant technique that uses a legal fiction to avoid borrowing at interest. The Islamic Center of Nashville has continuously operated the Nashville International Academy, a grade K-8 school, at the same site since 1995.  In 2008 it constructed a new school building on the site, financing the construction through a 5-year Ijara agreement.  The agreement involved transfer of title to an entity owned by the bank in exchange for construction funds, repayment captioned as rent, and a return of title once the required number of "rent" payments had been made.

Tennessee Code Sec. 43-610.7 exempts from property tax:

real and personal property owned by religious, charitable, scientific or non-profit educational institutions which is occupied and used by such institutions purely and exclusively to carry out one or more of its purposes....

In May 2016, the Tennessee State Board of Equalization Appeals Commission concluded (full text of opinion) that, while it was sympathetic with the Islamic Center's sincere desire to comply with its religious principles, the formal transfer of title to an entity owned by the bank meant that the property was not exempt from taxation from 2008 to 2013 (when the Islamic Center regained formal title). The Islamic Center then sued for a declaratory judgment and damages.  The complaint (full text) in Islamic Center of Nashville v. State of Tennessee, (MD TN, filed 9/19/2016) argues:

Here, ICN was ironically denied the religious exemption from property taxes by Defendant specifically because of its adherence to its religious tenets.

The suit claims violations of state and federal RFRAs, RLUIPA, the Elementary and Secondary Education Act, and the Establishment Clause. The Tennessean reports on the lawsuit.

Full Text of Complaint In 2011 Discrimination Suit By Family of Alleged NY/NJ Bomber

As reported today by CNN, the family of Ahmad Khan Rahami-- the alleged New York/ New Jersey bomber-- filed a federal lawsuit in 2011 claiming religious, racial and national origin discrimination by Elizabeth, New Jersey and its police department.  At issue was the city's repeated attempts to apply a 10:00 pm closing ordinance to the Rahami's chicken restaurant, while the family contended that the restaurant came within one of the exemptions in the ordinance.  Here is the full text of the complaint filed by the family in Rahami v. City of Elizabeth,(D NJ, filed 4/6/2011). Alleged bomber Ahmad Rahami was not one of the named plaintiffs in the case.

Obama Appoints Delegation To Babi Yar Commemoration

Yesterday President Obama announced the appointment of a Presidential Delegation to attend the Commemoration of the 75th Anniversary of the Babyn Yar Massacre in the Ukraine. The 4-person delegation is headed by Marie Yovanovitch, U.S. Ambassador to Ukraine, and also includes the chairman of the U.S. Holocaust Memorial Council.  The History Channel summarizes the events in Kiev in 1941:

The German army took Kiev on September 19, and special SS squads prepared to carry out Nazi leader Adolf Hitler’s orders to exterminate all Jews and Soviet officials found there. Beginning on September 29, more than 30,000 Jews were marched in small groups to the Babi Yar ravine to the north of the city, ordered to strip naked, and then machine-gunned into the ravine. The massacre ended on September 30, and the dead and wounded alike were covered over with dirt and rock.

Perhaps reflecting current international tensions in the area, the White House announcement used the Ukrainian term (Babyn Yar) rather than the more commonly used Russian name (Babi Yar) for the site.

European Court: Greece Violated Rights of Conscientious Objector

In Papavasilakis v. Greece, (ECHR, Sept. 15, 2016) [full text in French], the European Court of Human Rights in a Chamber Judgment found that a Jehovah's Witness' freedom of thought, conscience and religion (Art. 9 of the European Convention on Human Rights) were infringed by procedures used in Greece to consider his application to perform alternative civilian service instead of military service. As summarized by the Court's English-language press release:

Domestic law provided that the Special Board, when it examined applications for exemption from military service for conscientious objectors, had to be composed of two university professors, one senior or other advisor at the State Legal Council and two high-ranking army officers. Accordingly, if at the time it interviewed Mr Papavasilakis the Special Board had sat with all of its members present, the majority would have been civilians. However, only the two officers and the chairman were present on that day. In the Court’s view Mr Papavasilakis could thus have legitimately feared that, not being a member of a religious community, he would not succeed in conveying his ideological beliefs to career officers with senior positions in the military hierarchy.

A Chamber Judgment may be appealed to the Grand Chamber.

USCIRF Gets Acting Executive Director

Last week, the U.S. Commission on International Religious Freedom announced the appointment of Erin D. Singshinsuk as its Acting Executive Director while it searches for a person to fill that position on a permanent basis. The new appointee has been affiliated with several organizations having an international focus including the U.S. Institute for Peace where she served as the Vice President for Management and CFO.  Singshinsuk replaces Jackie Wolcott, the previous executive director, who was appointed to be a member of the Commission in March. (See prior posting.)

Court Employee Sues Under Title VII When Fired For Refusing To Process Same-Sex Marriage Licences

A Title VII lawsuit was filed earlier this month in a Florida federal district court by an employee of the Broward County, Florida clerk's office who was fired because she refused to process marriage license applications for same-sex couples. The complaint (full text) in Parker v. Forman, (SD FL, filed 9/9/2016), contends that plaintiff Yanicka Parker, as a Christian, has a sincere religious belief "that persons of the same sex cannot and should not be morally or legally recognized as husband and wife, and that God will judge individual Christians, as well as the society of which they are a part, who condone or institute same sex marriages."  The complaint asserts:

There were many other clerks available, willing and able to perform same sex marriages.

... Given that issuing marriage licenses to same sex couples was a miniscule part of the clerk’s job and overall responsibilities, and Ms. Parker was willing and able to perform all other aspects of her job, Defendant ... could have easily accommodated her religious beliefs.

Plaintiff seeks an injunction and damages for defendants' refusal to accommodate her religious beliefs. Christian Post yesterday reported on the lawsuit.

Court Refuses To Bar Enforcement of Anti-Discrimination Law Against Wedding Invitation Designers

In Brush & Nib Studio LC v. City of Phoenix, (AZ Super. Ct., Sept. 19, 2016), an Arizona trial court refused to issue a preliminary injunction to prevent enforcement of Phoenix, Arizona's public accommodation anti-discrimination ordinance against a business that designs custom wedding invitations. Refusing to dismiss on ripeness grounds, the court held that the law does not violate plaintiffs' free speech or free exercise rights. Rejecting plaintiffs' compelled speech argument, the court said in part:

Here, there is nothing about custom wedding invitations made for same-sex couples that is expressive.... The printing of the names of a same-sex couple on an invitation or thank you note does not compel Plaintiffs to convey a government mandated message, such as an endorsement or pledge in favor of same-sex marriages, nor does it convey any message concerning same-sex marriage.... It is absurd to think that the fabricator of a wedding invitation for a same-sex couple has endorsed same-sex marriage merely by creating or printing that invitation. Moreover, there is nothing about the creative process itself, such as a flower or vine or the choice of a particular font or color, that conveys any pledge, endorsement, celebration, or other substantive mandated message by Plaintiffs in regard to same-sex marriage.

Responding to plaintiffs' free exercise challenge, the court said in part:

the sale of wedding invitations free of the names of same-sex couples clearly is not the exercise of religion, and certainly is not a burden on the free exercise of their religion. Nothing about the ordinance has prevented the Plaintiffs from participating in the customs of their religious beliefs or has burdened the practice of their religion in any way.

ADF which represented plaintiffs in the case issued a press release responding to the decision. The press release is accompanied by links to pleadings in the case and to the relevant city ordinances.

4th Circuit: Sectarian Invocations Led By County Commissioners Are Permissible

In a 2-1 decision today, the U.S. 4th Circuit Court of Appeals, reversing the trial court, upheld the practice in Rowan County, North Carolina Board of Commissioners of opening their meetings with an invocation led on a rotating basis by one of the commissioners.  In Lund v. Rowan County, North Carolina,  (4th Cir., Sept. 19, 2016), the majority in a 54-page opinion held that the Board's practice is constitutional under the U.S. Supreme Court's Town of Greece  decision, saying in part:

The Board’s legislative prayer practice falls within our recognized tradition and does not coerce participation by nonadherents. It is therefore constitutional.

The district court (see prior posting) had held that Town of Greece does not cover sectarian invocations delivered by the county commissioners themselves instead of invited clergy. The majority, however, said:

Nowhere did the [Supreme] Court say anything that could reasonably be construed as a requirement that outside or retained clergy are the only constitutionally permissible givers of legislative prayer.

Judge Wilkinson, dissenting, said in part:

This combination of legislators as the sole prayer-givers, official invitation for audience participation, consistently sectarian prayers referencing but a single faith, and the intimacy of a local governmental setting exceeds even a broad reading of Town of Greece.

Charlotte Observer reporting on the decision says that the ACLU, representing plaintiffs, will ask for en banc review.

Recent Articles and Upcoming Conference of Interest

From SSRN:

• James M. Oleske, A Regrettable Invitation to 'Constitutional Resistance,' Renewed Confusion Over Religious Exemptions, and the Future of Free Exercise, (20 Lewis & Clark L. Rev. in Symposium, 'Law and Religion in an Increasingly Polarized America', (Forthcoming)).
• Sarah M. Stephens, Employer Conscience after Hobby Lobby and the Continuing Conflict between Women's Rights and Religious Freedom, (2016).
• Richard W. Garnett, Justice Scala, Religious Freedom, and the First Amendment, Notre Dame Law School Legal Studies Research Paper No. 1637 (2016).
• Nuel Chinonyelum Oji, Obergefell v Hodges and the Problem of Judicial Legislation, (University of Nigeria Bar Journal(UNBJ) 3 (2016) 147).
• Catherine Jean Archibald, Transgender Bathroom Rights, (Duke Journal of Gender Law & Policy, Forthcoming).
• Riley Fredrick, Marriage Equality: The Paralleled Progress between Public Approval and Supreme Court Decision-Making, (Florida State University Law Review, Forthcoming).

From SSRN (Non-U.S. Law):

• Paul Maginn & Graham Ellison, ‘Ulster Says No’: Regulating the Consumption of Commercial Sex Spaces and Services in Northern Ireland, (Urban Studies, Forthcoming).
• Aleksandra Gliszczynska-Grabias & Wojciech Sadurski, Law of Ritual Slaughter and the Principle of Religious Equality, (Journal of Law, Religion and State, Forthcoming).
• Jeffrey A. Redding, Transgender Rights in Pakistan?: Global, Colonial, and Islamic Perspectives, (September 11, 2016).
• Satvinder Juss, The Justiciability of Religion, (Forthcoming in the Journal of Law and Religion - Cambridge University Press).
• Howard Kislowicz, On Collective Constitutional Rights: Lessons for Religious Rights from Language Rights, ((2016) 75 S.C.L.R. (2d) 31).
• Solomon A. M. Ekwenze, Nigeria's Multi-Religious Platform: A Myth or Reality - Public Holidays a Question, (September 7, 2016).
• Federico Masera, State, Religiosity and Church Participation, (September 14, 2016).
• Connor M. Ewing, The Structural Articulation of 'Equal Dignity', (August 28, 2016).

From SmartCILP:

• Zachary Bray, RLUIPA and the Limits of Religious Institutionalism, (2016 Utah Law Review 41-103).
• Julia L. Ernst, How Should the South African Constitutional Court Approach Tensions Between Women's Rights and Religious Rights?, 60 New York Law School Law Review 493-516 (2015/16).
• Ruth C. Stern & J. Herbie DiFonzo, Dogging Darwin: America's Revolt Against the Teaching of Evolution, 36 Northern Illinois University Law Review 33-82 (2016).

Upcoming Conference:

• Religious Critiques of Law, Pepperdine University, March 9-10, 2017.

Recent Prisoner Free Exercise Cases

In Scarpinato v. Indiana State Prison, 2016 U.S. Dist. LEXIS 122795 (ND IN, Sept. 12, 2016), an Indiana federal district court dismissed an inmate's complaint that he was not allowed to have a Bible in his cell during periods he was in segregation.

In Thomas v. Lakin, 2016 U.S. Dist. LEXIS 123182 (SD IL, Sept. 12, 2016), an Illinois federal district court allowed a Muslim inmate to move ahead with claims that jail authorities denied his request for a copy of the Qur'an, a prayer mat, religious worship services, and a religious diet.

In Hanson v. New Hampshire State Prison Literary Review Commission, 2016 U.S. Dist. LEXIS 123935 (D NH, Sept. 12, 2016), a New Hampshire federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 123936, Aug. 17, 2016) and dismissed an inmate's complaint that he was not allowed to receive a package containing the religious book The Shaolin Grandmasters' Text, and a non-religious book, Sailing a Serious Ocean, sent along with it.

In Gayle v. Harmon, 2016 U.S. Dist. LEXIS 124565 (ED PA, Sept. 13, 2016), a Pennsylvania federal district court, dismissing a case, held that restrictions on attending religious services for those in administrative segregation are rationally related to a legitimate penological interest.

In Stocking v. Semple, 2016 Conn. Super. LEXIS 2210 (CT Super. Ct., Aug. 10, 2016), a Connecticut state trial court dismissed an inmate's complaint that he was continually denied access to religious services.

In Aiello v. West, 2016 U.S. Dist. LEXIS 124739 (WD WI, Sept. 14, 2016), a Wisconsin federal district court allowed a Jewish inmate to move forward with his RLUIPA challenge to the ban on inmate-led group religious services, but dismissed plaintiff's 1st Amendment challenge to that ban as well as his challenges relating to availability of ritual foods for the Passover seder and to changes in the kosher meal menu.

In Munson v. Butler, 2016 U.S. Dist. LEXIS 124817 (SD IL, Sept. 13, 2016), an Illinois federal district court dismissed a Buddhist inmate's complaint that he was not able to receive a low soy lacto-ovo vegetarian diet.

In Beamon v. Dittmann, 2016 U.S. Dist. LEXIS 124879 (ED WI, Sept. 14, 2016), a Wisconsin federal district court upheld a prison's ban on Nations of Gods and Earths material despite plaintiff's claim that his beliefs were derived from various religious traditions.

In Salgado v. NYS Department of Corrections & Community Supervision, 2016 U.S. Dist. LEXIS 126659 (WD NY, Sept. 14, 2016), a New York federal magistrate judge recommended that a Muslim inmate be allowed to proceed with his complaint that he was not allowed to wear his Dihk'r prayer beads outside of his cell.

Inmate Has Broader Damage Remedy Under RFRA Than Under RLUIPA

In Crowder v. Lariva, 2016 U.S. Dist. LEXIS 122966 (SD IN, Sept. 12, 2016), an Indiana federal district court permitted a Hebrew Israelite inmate to move ahead against one of the prison chaplains on his complaint that he was denied a kosher diet. Because plaintiff was a federal inmate, he sued (in addition to his 1st Amendment claim) under RFRA instead of RLUIPA, and the court held that he had broader remedies as a result:

Jones [the chaplain] also argues that because the Seventh Circuit in Nelson v. Miller, 570 F.3d 868, 887 (7th Cir. 2009), held that the similarly-worded RLUIPA does not allow for the collection of money damages against individuals, the same reasoning should apply to RFRA. But there are at least two important differences between RLUIPA and RFRA that compel a different conclusion. First, ... the statutory language of RFRA defines "government" as, among other things, an "official (or other person acting under color of law)." ...Congress thus envisioned at least some individual-capacity suits under RFRA.... Second, RFRA, which applies to federal action, and RLUIPA, which is applicable to state action, arise from different principles.,,, [T]he portion of RFRA that authorizes lawsuits against the states was held unconstitutional because such an application exceeded Congress's power under the Enforcement Clause of the Fourteenth Amendment in City of Boerne v. Flores.... RLUIPA was enacted in response to City of Boerne ... as an exercise of Congress's spending power[.] ...[I]nterpreting that statute to allow damages actions against state officials in their individual capacities would 'raise serious questions regarding whether Congress had exceeded its [constitutional] authority.'" ... [S]uch considerations are not at issue when applying RFRA because RFRA's application to federal action is not based on the Spending Clause.... For these reasons, the Court concludes that RFRA does allow for the recovery of monetary damages against officers in their individual capacities