Sunday, May 03, 2015

Recent Prisoner Free Exercise Cases

In Herbert v. Balducci, 2015 U.S. Dist. LEXIS 54866 (WD WA, April 27, 2015), a Washington federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 54945, Jan. 8, 2015) and dismissed an inmate's claim that his free exercise rights were infringed by prison policy that limits reading material to a Bible while serving disciplinary confinement  Plaintiff argued this means he is forced to read a Bible and cannot read his Alcoholics Anonymous Big Book.

In Truidalle v. Godinez, 2015 U.S. Dist. LEXIS 55061 (CD IL, April 28, 2015), an Illinois federal district court dismissed with leave to amend a complaint by a Rastafarian inmate that he was receiving a vegan rather than a kosher diet, and that his religion was wrongly changed on his identification card to "other."

In Walker v. Fasulo, 2015 U.S. Dist. LEXIS 56209 (D NV, April 29, 2015), a Nevada federal magistrate judge permitted a Muslim inmate to move ahead with his complaints that  jail officials prevented him from praying (and threatened to send him to disciplinary housing if he prayed without permission), prevented him from attending Jumua services, and from obtaining Kosher-Halal meals.

In Simmons v. Williams, 2015 U.S. Dist. LEXIS 56134 (SD GA, April 29, 2015), a Georgia federal magistrate judge recommended permitting an inmate to move ahead with his claims that a search resulting in his being undressed in front of other men and having to shave his beard imposed a substantial burden on the exercise of his religion.

In Wilson-El v. Mutayoba, 2015 U.S. Dist. LEXIS 56163 (SD IL, April 29, 2015), an Illinois federal district court held that requiring an inmate who had successfully recovered $10,100 in punitive damages against prison officials who had denied his request for a vegan diet should not be required to pay more than a nominal amount of his $15,000 attorneys fees, with the remainder paid by defendants.

In Kindred v. Allenby, 2015 U.S. Dist. LEXIS 56318 (ED CA, April 29, 2015), a California federal magistrate judge dismissed with leave to amend a complaint by a Native American civil detainee that Native Americans were denied the right to hold Sunrise Prayer Ceremonies, were retaliated against for displaying sacred or spiritual items, and that his spiritual rug was confiscated and his medicine bag desecrated.

Justice Department Wins Its Suit Against Florida To Require a Kosher Meal Program In Prisons

The U.S. Department of Justice has won it long-running lawsuit against the state of Florida over its prisons' kosher meal policy.  In United States v. Secretary, Florida Department of Corrections, (SD FL, April 30, 2015), a Florida federal district court held that the blanket denial of kosher meals violates RLUIPA, and issued a permanent injunction requiring the state to provide kosher meals to those prisoners with a sincere religious belief requiring kosher meals.  The state initially suspended its kosher meal program for budgetary reasons, but reinstituted a program in 2013.  However the state rejects the claim that it is by law required to provide kosher meals. In granting the injunction, the court said in part:
Because neither side disputes that a blanket denial of kosher meals imposes a substantial burden on prisoners' religious exercise for those prisoners that have a sincere religious belief requiring them to eat kosher, the burden is on Defendants to demonstrate that denying such prisoners kosher meals (a) is in furtherance of a compelling state interest and (b) is the least restrictive means of achieving that interest. Throughout this litigation, Defendants have asserted that they have a compelling state interest in cost containment and that not providing a kosher diet is the least restrictive means of achieving cost containment.  Defendants have not met their burden....
As the United States contends, it is hard to understand how Defendants can have a compelling state interest in not spending money that they are already voluntarily spending on the exact thing they claim to have an interest in not providing.
The court also enjoined two other aspects of the religious diet program: the zero tolerance policy on infractions and the rule requiring removal from the program of an inmate who has missed 10% of his meals. However the court refused to enjoin the potential use as one part of its testing of an inmate's religious sincerity a question asking the inmate to identify the religious rules that require him to eat a religious diet. The Justice Department issued a press release announcing the decision. Orlando Sentinel yesterday reported on the decision.

Helena Diocese Posts List of Alleged Abusers As Part of Settlement

As reported by the Ravalli Republic, last Wednesday, as part of the non-monetary terms of the settlement with 362 sex-abuse victims, the Catholic Diocese of Helena, Montana posted on its webiste the names of 80 individuals (priests, sisters and lay persons) who were identified by the victims as sexual abusers betwen the 1930's and the 1970's.  A number of the alleged abusers are identified only by first or last name. Most of those on the list have died.  Under the settlement, the names are to remain posted for at least ten years. The diocese exited bankruptcy in March. (Full text of reorganization plan and confirmation order.)

Friday, May 01, 2015

6th Circuit Hears Oral Arguments In RLUIPA Zoning Case

On Wednesday, the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Tree of Life Christian Schools v City of Upper Arlington, (Docket No. 14-3469, argued 4/29/2015). In the case, an Ohio federal district court dismissed a Christian school's RLUIPA and constitutional challenge to Upper Arlington's refusal to issue a conditional use permit or to rezone for use as a school an existing office building. (See prior posting.)  Upper Arlington News, reporting on the oral arguments, quoted the reaction to the arguments from Erik Stanley who argued the case for Tree of Life:
A few of the judges seemed to key in on the idea the city argued all along that the city needs this property for revenue, but the judges seemed alarmed that some of the uses the city has allowed in the ORD don’t generate a lot of revenue. The city cannot have this zoning district that claims only to allow revenue-generating uses when they’ve allowed uses that don’t generate revenue to the extent Tree of Life would, such as day care centers, charitable hospitals and nonprofit offices.

Pennsylvania Supreme Court Reinstates Priest's Child Endangerment Conviction; Trial Court Orders Him Back To Prison

On Monday in Commonwealth of Pennsylvania v. Lynn, (PA Sup. Ct., April 27, 2015), the Pennsylvania Supreme Court, in a 4-1 decision, reinstated the conviction of Msgr. William J. Lynn who had been sentenced to prison for 3 to 6 years on charges of endangering the welfare of children. Lynn is the first U.S. priest criminally convicted of covering up sexual molestation of minors by another priest. An appeals court reversed the conviction, holding that the statute under which Lynn was convicted only applies to a person who is directly in charge of a child, not to someone supervising the person in charge. (See prior posting.) Now the Pennsylvania Supreme Court has reversed the appellate court, holding "the statute is plain and unambiguous that it is not the child that Appellee must have been supervising, but the child’s welfare." The court explained:
[T]he requirement of supervision is not limited to only certain forms of supervision, such as direct or actual, as the Superior Court held. By its plain terms it encompasses all forms of supervision of a child’s welfare.... Further, as the Commonwealth correctly argues, supervision is routinely accomplished through subordinates, and is no less supervisory if it does not involve personal encounters with the children. Like Appellee, school principals and managers of day care centers supervise the welfare of the children under their care through their management of others. Depending upon the facts, they could be criminally liable for endangering the welfare of the children under their supervision if they knowingly place sexually abusive employees in such proximity to them as to allow for the abuse of these youth.
Chief Justice Saylor filed a dissenting opinion.

As reported by the Philadelphia Daily News, in January 2014 after the state appeals court (Superior Court) reversed Lynn's conviction, Lynn was released from prison on bail, but ordered to remain under house arrest pending the appeal to the state Supreme Court.  Yesterday a common pleas court judge ordered Lynn back to prison. Lynn's attorney said he will file an emergency petition with the Superior Court seeking Lynn's release on bail again while additional issues are resolved on appeal.

9th Cirucit Upholds Ban on Christmas Display In Palisades Park

In Santa Monica Nativity Scenes Committee v. City of Santa Monica, (9th Cir., April 30, 2015), the U.S. 9th Circuit Court of Appeals rejected free speech and Establishment Clause challenges to Santa Monica's repeal of a policy that, as an exception to a general ban on unattended displays, allowed  unattended Winter Displays in the city's Palisades Park. Since 1955, during December local residents  (and later the Nativity Scenes Committee) have erected dioramas in the Park depicting the Biblical story of Christmas. A policy enacted in 2003 allocated space on a first-come-first-served basis. However beginning in 2011, atheists who opposed Christmas displays in the Park, flooded the city with requests for their own displays and the city moved to a lottery system for allocating space. Rather than continuing to deal with this, in 2012 the city repealed the exception that allowed Winter Displays, and the Nativity Scenes Committee sued. The court held that the Ordinance repealing the Winter Display exception was a narrowly tailored neutral time, place and manner regulation that serves a substantial governmental interest and leaves open ample alternative channels of communication. The court refused to extend the "heckler's veto" doctrine to this situation. Finally the court rejected challengers' claim that the repeal violated the Establishment Clause by conveying hostility toward Christianity. Thompson/ Reuters reports on the decision.

Satanic Temple Member Claims State RFRA Exemption To Missouri's Abortion Waiting Period

Friendly Atheist reports this week on plans by a member of the Satanic Temple to challenge Missouri's requirement for a 72-hour waiting period for abortions by asserting a religious freedom claim.  Missouri has a Religious Freedom Restoration Act (MO Rev. Stat Section 1.302.1).

Missouri law (MO Rev. Stat. Section 188.027.1)  requires that: "The physician who is to perform or induce the abortion or a qualified professional shall provide the woman with the opportunity to view at least seventy-two hours prior to the abortion an active ultrasound of the unborn child and hear the heartbeat of the unborn child if the heartbeat is audible." Using an exemption form developed by the Satanic Temple, the Missouri native identified as "Mary" claims that her sincerely held Satanic Temple beliefs are that her body is inviolable and subject to her will alone, and that inviolable body includes any fetal tissue so long as it is unable to survive outside her body as an independent human being.

Planned Parenthood of St. Louis is the only abortion provider in Missouri, and Mary lives hundreds of miles away from it, making a 72 hour wait after her initial appointment difficult. The head of the Satanic Temple says it will pursue litigation if Mary's exemption claim is not honored. Last year, using similar arguments, the Satanic Temple launched a campaign against "informed consent" laws that require abortion providers to furnish women certain informational material when they seek an abortion. (See prior posting.)

USCIRF Issues 2015 Annual Report

The U.S. Commission on International Religious Freedom yesterday released its 2015 Annual Report (full text) (press release). The Report, mandated by the International Religious Freedom Act, this year documents religious freedom violations in 33 countries and recommends that 17 countries be designated by the State Department as "countries of particular concern" (CPC) in which particularly severe violations of religious freedom are perpetrated or tolerated. This year, USCIRF expands its criteria for designating CPC:
The 2015 Annual Report recognizes that non-state actors, such as transnational or local organizations, are some of the most egregious violators of religious freedom. For example, in the Central African Republic and areas of Iraq and Syria, the governments are either non-existent or incapable of addressing violations committed by non-state actors. USCIRF has concluded that the CPC classification should be expanded to allow for the designation of countries such as these, where particularly severe violations of religious freedom are occurring but a government does not exist or does not control its territory. Accordingly, USCIRF’s CPC recommendations reflect that approach.
The Report recommends that the State Department redesignate 9 countries as CPC: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, Turkmenistan, and Uzbekistan.  It also recommends adding 8 other countries to the list: Central African Republic, Egypt, Iraq, Nigeria, Pakistan, Syria, Tajikistan, and Viet Nam.

USCIRF placed 10 countries on its Tier 2 list, countries that engage in or tolerate violations, but which do not reach CPC levels: Afghanistan, Azerbaijan, Cuba, India, Indonesia, Kazakhstan, Laos, Malaysia, Russia and Turkey.

The Introduction to this year's report highlights massacres by ISIL and Boko Haram, as well as violence in the Central African Republic and Burma, saying:
A horrified world has watched the results of what some have aptly called violence masquerading as religious devotion.
The Report also recommends changes within the State Department to give more authority to the Ambassador-at-large for International Religious Freedom as well as a number of other funding enhancements, programmatic changes and changes in the processing of asylum seekers. Vice-Chair James Zogby issued a dissenting statement saying:
I voted against some of the recommendations in this chapter because I cannot support USCIRF calling on Congress to micro-manage the way the State Department and the White House National Security Council organize their staff and set their priorities.
Again this year, the Report includes lists of those imprisoned in several countries as activists, conscientious objectors or those sentenced for blasphemy.

California Megachurch Challenges Church-State Boundaries

The Center for Investigative Reporting on Wednesday posted a long report on a megachurch in Chino Hills, California that is attempting to break down the church-state barrier.  Three of the five members of the Chino Valley Unified School District Board of Education worship at the 10,000-member Calvary Chapel.  Apparently two of them bring their praying and preaching regularly into school board meetings.The church's Pastor Jack Hibbs frequently flouts IRS regulations by urging his congregants to vote for specific anti-abortion, anti-gay-marriage and pro-Israel candidates. Hibbs says he is only precluded from endorsing candidates "from behind the pulpit." So during services Hibbs walks in front of the pulpit, blesses a favored candidate, tells the congregation how great the person is and that he is voting for the individual.  Hibbs also uses social media to endorse candidates. Every election, Calvary Chapel hands out questionnaires on conservative issues to candidates and then distributes the responses to the congregation. Following the lead of Pastor Hibbs, the school board has approved a course on The Bible and Its Influence and has opposed the state's transgender protection law. Last November, the Freedom From Religion Foundation filed suit against the Chino Valley School Board over the prayers and preaching at board meetings. (See prior posting.)

Thursday, April 30, 2015

Kenyan Court Says LGBT Rights Group May Be Formed; Christian Churches Object

In Kenya, a 3-judge panel in the High Court at Nairobi in a lengthy opinion has held that the Non-Governmental Organisations Coordination Board must accept the registration of an organization that will seek to address the violence and human rights abuses suffered in the country by gay, lesbian, bisexual and transgender persons.  In Gitari v. Coordination Board, (Kenya High Ct., April 24, 2015) the court held that the equal protection provisions of Article 27 of Kenya's Constitution, along with the freedom of association provisions of Article 36, guarantee petitioner the right to form his proposed organization, even though various homosexual acts are illegal in the country.

Among the parties the court had permitted to intervene in the case was the Kenya Christian Professionals Forum (KCPF) which argued that "the registration of the proposed NGO will advance a cause against public policy and it will also seek to legalise criminality, that is homosexuality..." According to a Religion News Service report yesterday, KCPF will appeal the court's decision. Archbishop  Eliud Wabukala, head of Kenya's 4.5 million Anglican Christians, said: "The judgment was made with very narrow considerations and it is not only against Christianity, but also against Muslims’ teachings and traditions."

New York MTA Bans All Issue Advertising After Court Orders Acceptance of Anti-Islam Ad

New York's Metropolitan Transportation Authority yesterday adopted a resolution barring all political  and issue advertising on subways and buses.  The move comes in response to a federal district court's ruling last week requiring the Authority to accept an ad that refers to "killing Jews" as part of Islam's jihad. (See prior posting.) According to CBS New York, MTA's general counsel explained that "Advertisements expressing viewpoint messages, regardless of the viewpoint being expressed, would no longer be accepted." Opposing the ban, an ACLU spokesman said: "The New York City transit system is our public square."  However MTA board member Charles Moerdler argued that the MTA "is a transportation agency, it is not an agency that provides a platform for hatemongers."

Supreme Court Says Required Conciliation Is Reviewable Prerequisite To EEOC Title VII Lawsuit

Yesterday in Mach Mining LLC v. Equal Employment Opportunity Commission, (Sup. Ct., April 29, 2015), the U.S. Supreme Court held that the requirement in Title VII of the 1964 Civil Rights Act that the EEOC attempt conciliation before filing an employment discrimination lawsuit is a judicially enforceable prerequisite to suing. However the scope of review of whether the EEOC has met this requirement is narrow:
the EEOC must inform the employer about the specific allegation.... Such notice properly describes both what the employer has done and which employees ... have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. At the same time, that relatively barebones review allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct conciliation efforts and when to end them.
The Court's unanimous opinion was written by Justice Kagan.  Wall Street Journal reported on the decision.

Wednesday, April 29, 2015

Armenian Christians Sue In Turkey To Regain Church Property

In Turkey yesterday, the Armenian Christian church filed suit in Turkey's Constitutional Court seeking to regain ownership of its historic headquarters, the Catholicosate of the Great House of Cilicia. According to a press release by the Church:
This lawsuit reflects the determination of Armenians worldwide, on the Centenary of the Genocide, to reclaim their sacred religious property and Christian heritage in lands where they lived peacefully for centuries.
.... Under the Ottoman Empire, the Catholicosate of Cilicia was recognized as an independent church.  During the Armenian Genocide of 1915-1923, the Armenian population of Sis was massacred and deported, and its Christian holy sites were pillaged and confiscated.

Atheist Group Sues Pennsylvania Transit System Over Refusal To Accept Ad

The ACLU of Pennsylvania announced that it has filed suit on behalf of an atheist group against the County of Lacawana Transit System (COLTS) over its advertising policy. The complaint (full text) in Northeastern Pennsylvania Free Thought Society v. County of Lacawana Transit System, (MD PA, filed 4/28/2015) contends that COLTS rejected an ad submitted for the outside of its buses reading: "Atheists. NEPAfreethought.org." COLTS advertising policy originally barred ads that are derogatory to any religion, or are objectionable, controversial or generally be offensive to COLTS’ ridership.  The policy was subsequently amended to bar ads that promote the existence or non-existence of a supreme deity; promote or criticize a religion or lack of religious belief; that quote or cite scriptures; or that are otherwise religious. COLTS policy was to maintain its advertising space as a nonpublic forum and not to allow its transit vehicles to become a platform for debate, or discussion of public issues or issues that are political or religious in nature.

The suit contends that COLTS has violated plaintiff's free expression rights by favoring commercial speech over speech on matters of public concern; and by in fact having a policy that accepted all ads until the Freethought Society attempted to advertise.  The complaint claims that COLTS policy is viewpoint based and unreasonable.

Small Church Brings RLUIPA Suit Against Kansas County

AP reports that the 15-member Liberty Baptist Church in Crawford County, Kansas on Monday filed a RLUIPA lawsuit against the county which has twice denied the church a conditional use permit that it sought in order to build on a 2.8 acre parcel of land it bought in 2013. The suit claims that County regulations prevent new churches from locating anywhere in the county without undergoing an extensive zoning process.

Tuesday, April 28, 2015

Transcripts and Audio of Today's Same-Sex Marriage Arguments In Supreme Court Are Now Available

The Supreme Court this morning heard oral arguments in four same-sex marriage cases. It first heard 90 minutes of argument on the question "Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?" Here is the full transcript and the audio recording of arguments on that question.  The Court then heard 60 minutes of arguments on the question "Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?" Here is the full transcript and the audio recording of arguments on that question.  A New York Times report on the oral arguments is titled "Gay Marriage Arguments Divide Supreme Court Justices."

UPDATE: Lyle Denniston at SCOTUSBlog has an excellent analysis of the oral argument.

Kentucky Court Says Businesss May Refuse To Print Gay Pride T-Shirts

In Hands On Originals, Inc. v. Lexington-Fayette Urban County Human Rights Commission, (KY Cir. Ct., April 27, 2015), a Kentucky state trial court, reversing an order of a county human rights commission, held that a small business that prints promotional items for customers did not violate the county's public accommodation ordinance when it refused to print Lexington Pride Festival t-shirts for the Gay and Lesbian Service Organization.  The business, Hands On Originals ("HOO"), had a policy, displayed on its website, that it would refuse any order that endorsed a position in conflict with the convictions of the business' Christian owners. The court concluded that the refusal was not because of the sexual orientation of the representatives that communicated with HOO, but rather because of the message the t-shirt would convey-- that one should be proud of sexual relationships other than between a married man and woman. The court held that it is the right of HOO and its owners "not to be compelled to be part of the advocacy of messages opposed to their sincerely held Christian beliefs."

The court also held that the Commission's order substantially burdens the free exercise rights of HOO and its owners, in violation of Kentucky's Religious Freedom Restoration Act. Christian News reports on the decision. According to the Lexington Herald-Leader, an appeal of the court's decision is likely.

Jewish Sheriff's Office Employee Sues Alleging Religious Discrimination and Harassment

The Florida ACLU announced yesterday that it has filed a federal lawsuit on behalf of a Jewish employee of the Collier County, Florida Sheriff's Office alleging religious discrimination and harassment.  The ACLU summarized the complaint:
In 2009, Mr. Newmark requested religious accommodations to allow him to observe the tenets of his Jewish faith, including being allowed to not shave his beard and wear a head covering, and to have a schedule that accommodated his observance of the Jewish Sabbath as well as religious holidays like Passover and Yom Kippur.
Mr. Newmark’s requests for accommodations were denied, he was demoted from his position as an officer within the department’s gang unit to a non-certified civilian position of jail technician, and a campaign of harassment began that included being referred to by Sheriff’s staff as “a hairy Jewish mother-[expletive],” and having a Nazi Iron Cross flag placed outside his cubicle.
In 2012 – by which time Mr. Newmark had become a member of the Hasidic sect... Mr. Newmark was retaliated against for filing a complaint with the EEOC and threatened that he would  be forced to shave his beard and cease wearing his yarmulke.
The complaint (full text) in Newmark v. Collier County Sheriff's Office, (MD FL, filed 4/27/2015), asks for declaratory and injunctive relief as well as damages for violation of Title VII of the 1964 Civil Rights Act. The Fort Myers News-Press reports on the filing of the lawsuit.

Suit Challenges Library's Rules For Use of Conference Rooms

Yesterday, Liberty Counsel announced that it has filed a federal lawsuit challenging the Conference Room Policy of the Wake County, North Carolina Public Library.  The Policy permits non-profit groups to use the library's conference rooms for cultural, civic and informal educational purposes, but not for religious instruction, religious services or religious ceremonies.  The complaint (full text) in Liberty Counsel, Inc. v. County of Wake, North Carolina, (ED NC, filed 4/24/2015) contends that the policy discriminates on the basis of content and viewpoint of speech.  It alleges that the policy violates free speech, free exercise and Establishment Clause protections of the federal and state constitutions.

Supreme Court GVR's Another Non-Profit Contraceptive Mandate Challenge

The U.S. Supreme Court yesterday in Michigan Catholic Conference v. Burwell, (Docket No. 14-701) (Order List) granted certiorari, vacated the judgment below and remanded the case to the 6th Circuit for further consideration in light of Burwell v. Hobby Lobby Stores, Inc.  In the case, the 6th Circuit denied preliminary injunctions to several Catholic non-profit entities that object to the Affordable Care Act contraceptive coverage accommodation.  The accommodation allowed non-profits with religious objections to opt out of furnishing contraceptive coverage to their employees by completing a form and sending it to their insurer or third party administrator which would then furnish contraceptive coverage directly. (See prior posting.) Subsequently the accommodation for non-profits has been further modified to allow notice to be sent to the federal government rather than the insurer or administrator. (See prior posting.) The Court's GVR order in the case follows a similar one issued last month in Notre Dame University's challenge to the same regulations. (See prior posting.) Becket Fund issued a press release on the Court's action yesterday.

Monday, April 27, 2015

Some Background For Tomorrow's Same-Sex Marriage Arguments At the Supreme Court

Tomorrow, the U.S. Supreme Court hears oral arguments in Obergefell v. Hodges and three related cases raising the question of whether states may constitutionally refuse to authorize same-sex marriages and, even if they may, whether a state may refuse to recognize a same-sex marriage validly performed in another state. Lyle Denniston at SCOTUSBlog has an excellent summary of the legal issues involved. The New York Times last week profiled lead plaintiff James Obergefell and traces the changes in attitude toward marriage equality in Obergefell's home town of Cincinnati, Ohio. And CNN profiles the lawyers who will argue the cases. SCOTUSBlog will live blog the oral arguments beginning at 10:45 am. at this link.  For those who want in depth background material, SCOTUSBlog's case page has links to all the briefs, other relevant legal documents and additional legal analysis. The Supreme Court will release both audio tapes and the written transcript of oral arguments later tomorrow.  CBS News reports that a line began forming Friday afternoon for the limited number of seats available for spectators in the courtroom.

Supreme Court Grants Certiorari In Title VII Constructive Discharge Case

The U.S. Supreme Court today granted certiorari in Green v. Donahoe, (Docket No. 14-613, review granted 4/27/2015) (Order List.) The petition for certiorari in the case frames the question presented:
Under federal employment discrimination law, does the filing period for a constructive discharge claim begin to run when an employee resigns, as five circuits have held, or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation, as three other circuits have held? 
In the case, the 10th Circuit (full text of opinion) held that the filing period begins to run at the date of the last discriminatory act. It said in part:
No policy reason, certainly not the policy behind recognition of constructive discharge claims as a means to provide appropriate relief to employees, commends itself as a ground for postponing the accrual of constructive-discharge claims until the employee leaves work...
SCOTUSBlog's case page links to filings in the case. While the case in which review was granted involves alleged racial discrimination. the Supreme Court's decision will also impact cases in which religious discrimination led to a constructive discharge.

Georgia Company Refuses To Print Wedding Invitations For Same-Sex Couple

In the latest clash between business owners and same-sex couples, WXIA News reported yesterday that a suburban Atlanta printing business has refused to print wedding invitations for a same-sex couple. The owner of a Suwanee, Georgia Alpha Graphics franchise refused on religious grounds to print the invitations that Paige Beth says she wanted designed to look like a train ticket. The Alpha Graphics home office issued a statement apologizing, and emphasizing that the company does not condone discrimination on the basis of race, religion, nationality, ethnicity or sexual orientation.  Georgia's is one of 5 states that has no public accommodation law (except for disabled persons).

Proposed Order On Damages Issued Against Oregon Bakery That Refused Same-Sex-Wedding Cake

The Oregon Bureau of Labor and Industries announced last Friday that an Administrative Law Judge has issued a Proposed Order relating to damages to be paid by the owners of an Oregon bakery (Sweet Cakes by Melissa).  Aaron Klein, a co-owner of the bakery, was previously found to have violated the Oregon Equality Act by refusing on religious grounds to provide a wedding cake for a same-sex couple. (See prior posting.) The 111-page Proposed Findings, Conclusions, Opinion and Order issued April 21 (full text) proposes an award of compensatory damages for emotional suffering of $135,000, to be apportioned $75,000 to Rachel Bowman-Cryer and $60,000 to Laurel Bowman-Cryer (who was not present at the cake refusal).  The Administrative Law Judge ruled that these are damages caused by the cake refusal, and that the couple is not entitled to additional damages for emotional suffering caused by media and social media attention. The ALJ also proposes issuance of a cease-and-desist order against the bakery owners.

Both sides have ten days to file exceptions to the Proposed Order.  The Labor Commissioner will then issue the agency's final order, which is appealable to the Oregon Court of Appeals.

As reported by the Daily Signal, last Friday, supporters of the bakery owners set up a crowdfunding page on GoFundMe to help the bakers raise funds to pay any final damage award.  Within a day the page raised $109,000, but was taken down by GoFundMe as being in violation of its Terms and Conditions because it involves formal charges. The money already raised will still go to the bakery owners, Melissa and Aaron Klein.  A new fundraising page has been set up on Franklin Graham's Samaritan's Purse website.

Recent Articles of Interest

From SSRN:
From SSRN (non-U.S. Law):
From SmartCILP:

Sunday, April 26, 2015

Recent Prisoner Free Exercise Cases

In West v. Grams, (7th Cir., April 22, 2015), the 7th Circuit vacated the district court's dismissal on mootness grounds of a Muslim inmate's RLUIPA claim. While the inmate had been transferred to another institution, the challenged policy of allowing religious services only if an outside volunteer is available to lead them is a system-wide policy.

In Holtz v. Pierce County, 2015 U.S. Dist. LEXIS 52453 (WD WA, April 20. 2015), a Washington federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 52448, April 1, 2015) and dismissed a number of claims by a Muslim inmate. Numerous claims were dismissed without prejudice for failure to exhaust administrative remedies. Claims relating to Halal meat and dessert; purchase of Kosher food; non-recorded visitations; threat and inappropriate language regarding religion by an officer; and conditions of housing unit regarding prayer were dismissed with prejudice.

In Desmond v. Phelps, 2015 U.S. Dist. LEXIS 52657 (D DE, April 22, 2015), a Delaware federal district court severed into three separate suits a case in which a number of inmates representing 3 different religions (Islam, Catholicism, Judaism) complained about availability of religious services.

In Allah v. Colorado Department of Corrections, 2015 U.S. Dist. LEXIS 52792 (D CO, April 22, 2015), a Colorado federal district court dismissed a Muslim inmate's complaint that after he had legally changed his name to a religious name, prison authorities only allowed him to use that as an a.k.a. along with name under which he was originally committed.

In Montague v. Schofield, 2015 U.S. Dist. LEXIS 53208 (ED TN, April 22, 2015), a Tennessee federal district court dismissed an inmate's complaint that religious programs have been curtailed and that Muslim inmates are allowed to purchase prayer oil only from a single vendor, but with general leave to amend because class action status had been denied for these and numerous other claims.

In El v. Wehling, 2015 U.S. Dist. LEXIS 53356 (D NJ, April 23, 2015), a New Jersey federal district court in dealing with a sprawling 537-page complaint raising 49 counts relating to plaintiff's arrest and his being charged with weapons and drug offenses among other things dismissed plaintiff's claim that his free exercise rights were infringed when officials used his given name rather than his Moorish name on court papers.

In Barstad v. Wright, 2015 U.S. Dist. LEXIS 53573 (WD WA, April 23, 2015), a Washington federal magistrate judge recommend dismissing an inmate's complaint that his free exercise rights were infringed by various mail rejections.

In Kuykendall v. Kennell, 2015 U.S. Dist. LEXIS 53798 (CD IL, April 24, 2015), an Illinois federal district court dismissed an inmate's complaint that his requests to change his religious affiliation from Catholic to Messianic Hebrew, then to Judaism, and lastly to Assemblies of Yahweh were not honored to legitimize his requests for a list of Jewish holidays, special religious holiday meals and a Kosher diet.

Egyptian Channel Cancels Program After Host's Criticism of Conservative Islam

Egypt's Daily News reported yesterday that the Al-Qahera Wal Nas satellite channel has cancelled the program hosted by commentator Islam El-Behiry after two lawsuits against it challenge El-Behiry's criticism of conservative Islamic schools of thought.  One suit filed by an independent lawyer calls for closing down the channel and removing episodes of the program from the Internet, accusing El-Behiry of "insulting the divine."  A second suit filed by the Grand Imam of Al-Azhar accuses El-Behiry of insulting Al-Azhar which Egypt's Constitution makes the main source of interpretation of Islamic law.  Egypt's President Abdel Fattah Al-Sisi has called for a reinterpretation of Islamic doctrine (see prior posting). In cancelling El-Behiry's show, the channel said:
We should let ‘enlightened’ religious preachers handle the task of renewing religious discourse.

Abercrombie Changes Dress Code As Supreme Court Decision Nears

As it awaits a Supreme Court decision in a case challenging its failure to provide a religious accommodation to its dress code for employees (see prior posting), Abercrombie & Fitch announced Friday that it will no longer hire employees based on body type or physical attractiveness.  According to the Washington Post,  the change comes as the company faces declining sales and less than six months after the long-time and controversial CEO Mike Jeffries stepped down.  The company's new dress code softens its "Look Policy," but employees among other things are still barred from wearing head coverings.  However the company says it will accommodate disabilities and "sincerely-held religious beliefs."