Settlement Reached In Presbyterian Church Property Dispute

Presbyterian News Service and The Christian Post reported last week that a settlement has been reached in a lawsuit (see prior posting) brought against Presbyterian Church USA by the Dallas, Highland Park Presbyterian Church. Highland Park, a megachurch, has voted to break away from PCUSA and affiliate with the more conservative Evangelical Covenant Order of Presbyterians.  The suit had been filed by Highland Park to determine ownership of church property. Under the settlement, Highland Park will pay $7.8 million (26% of its assets) to PCUSA to obtain a release of claims that the property belongs to PCUSA under it Book of Order trust clause and to obtain ecclesiastical dismissal.  The dollar amount was agreed on in court-facilitated mediation, and was based on the percentage of Highland Park members that have chosen to remain with PCUSA.

Complaint Filed With HHS Over California Requirement That Insurance Policies Cover Elective Abortions

Last week, seven employees of the religiously-affiliated Loyola Marymount University filed a complaint (full text) with the U.S. Department of Health and Human Services objecting to a decision by the California Department of Managed Health Care requiring all private health care plans in the state to cover elective abortions. The complaint contends that the state's decision depriving them of a plan that omits elective abortion coverage violates the Hyde-Weldon Conscience Protection Amendment (Sec. 507 of the 2014 Consolidated Appropriations Act). That provision prohibits states from discriminating against a health care entity because it does not provide abortion coverage. A press release announced the filing of the complaint by Life Legal Defense Foundation and Alliance Defending Freedom.

New EEOC Nominee Announced

Last week the White House announced that President Obama will nominate  Charlotte Burrows to fill a vacant position on the Equal Employment Opportunity Commission. Burrows is currently Associate Deputy Attorney General at the Department of Justice. Among her previous positions, she was staff counsel to the Senate Judiciary Committee.  The EEOC administers federal laws barring employment discrimination, including discrimination on the basis of religion.

Nigeria Bans Religious Gatherings To Stop Ebola Spread; Group Threatens Lawsuit

In Nigeria, Health Minister Onyebuchi Chukwu has banned religious gatherings as a way to prevent the spread of Ebola. However, according to a report from This Day Live yesterday, the Christian Professionals Association of Nigeria is threatening to sue over the ban if it is not lifted in 72 hours. The group says that while the government has banned Christian religious gatherings, the government has not stopped political rallies across the nation. It says that the religious ban violates freedom or worship, movement and assembly protected under Sections 38-41 of the 1999 Constitution Act (As Amended).

Recent Articles of Interest

From SSRN:

• Kathryn E. Kovacs, Hobby Lobby and the Zero-Sum Game, (92 Washington University Law Review, Forthcoming).
• Rostam J. Neuwirth, The Governance of Religion and Law: Insights from the Prohibition of Usury, (International Review of Law 2014(2)).
• Caleb Ayuba, Thou Shall Not Kill: An Interfaith Model in Peacebuilding, (August 26, 2014).
• Eric William Palfreyman, The Qu'Ran, Radical Islam, and the Possibility of a Moderate Exegesis, (August 26, 2014).
• Arif A. Jamal, Religious Authority and Constitutional Order: A Case Study of the Conciliation and Arbitration Boards (CABs) of the Shia Imami Ismaili Community, (Journal of Law, Religion & State 2 (2013) 235–249).
• Brian McCall, Entender Los Males Economómicos Modernos a La Luz De La Doctrina Social Cátolica (Understanding Modern Economic Woes in Light of Catholic Social Doctrine), (Verbo Vol. 52 Nos. 525-526 (2014): 487-509).
• Marc O. DeGirolami, Constitutional Contraction: Religion and the Roberts Court, (Stanford Law & Policy Review, Forthcoming).
• Ronen Perry & Tal Zarsky, 'May the Odds Be Ever in Your Favor': Lotteries in Law, (February 13, 2014).
• Engy Abdelkader, Animal Protection Theory in U.S. and Islamic Law: A Comparative Analysis with a Human Rights Twist, (UCLA Journal of Islamic and Near Eastern Law, 2015, Forthcoming).
• Jess R. Phelps, 'Scarcely a Vestige of Antiquity Remains': Evaluating the Role of Preservation Easements in Protecting Historic Religious Architecture, (Environmental Law Reporter, Vol. 44, No. 10808, 2014).

New York and Peoria Dioceses In Battle Over Body Of Archbishop Fulton J. Sheen

A high-profile dispute between the Catholic Archdiocese of Peoria, Illinois and New York's Archbishop Cardinal Timothy Dolan over the body of Archbishop Fulton J. Sheen is the focus of a New York Times report today. Sheen was a popular television personality in the 1950's.  Since his death in 1979, his body has been sealed in a crypt in New York's St. Patrick's Cathedral.  The Peoria Diocese has been pushing for sainthood for Sheen, and has elaborate plans for a shrine to house his tomb, but Dolan refuses to allow the body to be exhumed.  This has led to a halt in the movement toward canonization.  According to the Times:

The very public tug-of-war over the body of Archbishop Sheen, has shocked many Catholics, in part because it seems like something that belongs in another era.

 “We should have moved out of the 14th century by now,” said Joan Sheen Cunningham of Yonkers, a niece of the archbishop and, at 87, his oldest living relative. “I would have thought so.” She wants the body to remain where it is.

The dispute is unlikely to ever reach the courts because of the refusal of civil courts to intervene in religious matters.

Jewish Vote In New York City Is Becoming Increasingly Orthodox and Hasidic

Th New York Times reports today that the profile of Jewish voters in New York City area is changing. Within a generation, a majority of New York City's Jews will likely be Orthodox, and a large percentage of those will be Hasidim who often have very large families.  The traditional liberal voting patterns of New York Jews is thus becoming more conservative.  Hasidim often vote in blocks for candidates favored for pragmatic reasons by their sect's grand rabbi. Hasidim often seek more aid for their system of yeshivas (religious schools). Already Hasidic groups have successfully resisted enforcement of the City's new informed consent requirement for circumcisions using the oral suction method, as well as requirements for various secular courses to be offered in their private schools. Top city and state officials are hiring Orthodox or Hasidic political advisers.

Recent Prisoner Free Exercise Cases

In Johnson v. Brown, (11th Cir., Sept. 12, 2014), the 11th Circuit reversed an Alabama federal district court's dismissal at the screening stage of a complaint that Sunnah Muslim inmates' access to a classroom used as a Masjid for prayer was being limited, their prayer services were being interrupted or cancelled, Eid al-Adha was mishandled and plaintiff was not allowed to wear a kufi.

In Miller v. Lewright, 2014 U.S. Dist. LEXIS 124584 (ED CA, Sept. 5, 2014), a California federal magistrate judge dismissed with leave to amend a complaint by a Native American civil detainee that authorities refused to release to him a spiritual bead necklace that he had ordered from a private vendor.

In Utt v. Brown, 2014 U.S. Dist. LEXIS 122602 (ED NC, Sept. 3, 2014), a North Carolina federal district court permitted a Wiccan inmate to proceed with his complaint about a policy that tarot cards are only for personal use, confiscation of his homemade religious items, a prohibition on his practicing sacred Esbats and denial of corporate worship.

In Vigil v. Raemisch, 2014 U.S. Dist. LEXIS 124986 (D CO, Sept. 8, 2014), a Colorado federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 124985, Aug. 15, 2014), and dismissed a Native American inmate's complaint that he was not allowed to wear a Mohawk haircut.

In Henderson v. Hedgpeth, 2014 U.S. Dist. LEXIS 125315 (ND CA, Sept. 8, 2014), a California federal district court dismissed with partial leave to amend a Muslim inmate's complaint that authorities failed to provide Muslim prayer services or a full-time chaplain, have not purchased various Muslim religious items (Qurans, prayer rugs, oils, books), have not allowed group breaking of the Ramadan fast or allowed ordering of Halal food.

In Desmond v. Phelps, 2014 U.S. Dist. LEXIS 126428 (D DE, Sept. 10, 2014), a Delaware federal district court allowed a Jewish inmate to join in a suit by Sunni-Salafi and Catholic inmates raising issues regarding the practice of religion at a Delaware prison. The court denied a preliminary injunction relating to retaliation claims by one of the Catholic plaintiffs.

In Elmore v. Saunders, 2014 U.S. Dist. LEXIS 126978 (MD NC,Sept. 11, 2014), a North Carolina federal district court denied the free exercise claim of an inmate who alleged that he could not pray during four days in a close observation cell because he was handcuffed and denied water to cleanse himself.

In Cejas v. Myers, 2014 U.S. Dist. LEXIS 127008 (ED CA, Sept. 10, 2014), a California federal magistrate judge dismissed, with partial leave to amend, a Buddhist inmate's complaint that Buddhists were denied chapel time while on C-status, and failed to fill a vacant chaplain position.

In Walters v. Livingston, 2014 U.S. Dist. LEXIS 127630 (WD TX, Sept. 12, 2014), a Texas federal magistrate judge dismissed on various grounds claims by a Native American inmate (who now has been released after completing his sentence) that he was wrongly transferred to a non-Native American unit after he was disciplined and not provided accommodations to practice his faith there. Defendants' counterclaim for attorneys' fees was also dismissed.

"God" In Pledge and in Military Oath Challenged Anew By Humanist Group

Stars and Stripes reported earlier this week that the U.S. Air Force is seeking an opinion from the Defense Department's chief lawyer on whether an enlisted man who is an atheist can refuse to include the phrase "so help me God" in his re-enlistment oath. Among the armed services, only the Air Force has a policy that does not make inclusion of the phrase optional.  The American Humanist Association has threatened to sue on behalf of the airman, who is stationed at Creech Air Force Base in Nevada-- if the issue is not resolved next week.

Meanwhile last week the American Humanist Association launched a national campaign urging everyone to sit out the pledge of allegiance until the phrase "under God" is removed from it. The organization has created a website devoted to the campaign. The campaign yesterday released a letter it sent to New Town, North Dakota school officials complaining about a teacher's refusal to allow a first-grader to sit out the pledge.

3rd Circuit Upholds New Jersey's Ban On Reparative Therapy As Permissible Regulation of Professional Speech

Yesterday, the U.S. 3rd Circuit Court of Appeals upheld against 1st Amendment challenges New Jersey's statute barring professional counselors from engaging in sexual orientation change therapy with minors. In King v. Governor of the State of New Jersey, (3rd Cir., Sept. 11, 2014), the court affirmed the district court's decision, while disagreeing with its 1st Amendment free expression analysis. Rejecting the district court's conclusion that talk therapy is not speech, the court instead concluded that it is "professional speech" which is subject to the same intermediate scrutiny as commercial speech.  Applying that test, the court found that the law directly advances New Jersey’s interest in protecting minors from harmful professional practices and is narrowly enough tailored to survive intermediate scrutiny.  The court rejected plaintiffs' free exercise challenge, finding that the law is neutral and generally applicable, and rejected plaintiffs' overbreadth challenge as well. Finally it agreed with the district court that plaintiffs lacked standing to bring suit on behalf of their minor clients. Bloomberg News reports on the decision. Liberty Counsel which represented plaintiffs announced that it would seek Supreme Court review.

University Tells Team To Remove Memorial Cross From Helmets

This season, the Arkansas State University football team decided to honor their recently murdered teammate and their former equipment manager who recently died in a car crash by wearing a Christian cross with the men's initials on it on their helmets. However, as reported yesteday by Fox News, University counsel told the team to remove the emblems after receiving a complaint that the team's wearing them violates the Establishment Clause. Counsel said that alternatively the players could change the Christian Cross to a "Plus sign" to eliminate the problem.

EEOC Sues Dunkin' Donuts Over Refusal To Hire Seventh Day Adventist

The EEOC yesterday filed a religious discrimination lawsuit against a Dunkin' Donuts franchise in Ashville, North Carolina. The company withdrew its offer to hire Darrell Littrell as a donut maker when he refused to begin work on Friday evening because of his Seventh Day Adventist feligious beliefs. The EEOC's announcement also indicated that the company was charged with failing to preserve required employment records.

9th Circuit: Ban On Soliciting At LAX Upheld Over Hare Krishna Challenge

In a case that slipped under my radar last month, the U.S. 9th Circuit Court of Appeals upheld a Los Angeles ordinance banning continuous or repetitive solicitation for the immediate receipt of funds at Los Angeles International Airport, rejecting a challenge to the ban by the Hare Krishna movement.  In International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles, (9th Cir., Aug. 20, 2014), a 3-judge panel of the 9th Circuit held that major international airports have a legitimate interest in controlling pedestrian congestion and reducing the risk of fraud and duress attendant to repetitive, in-person solicitation.

Legal Loopholes Allow Israeli Farmers To Avoid Sabbatical Year Strictures

JTA this week carries a report on the legal technicalities surrounding observance of the Biblical Sabbatical year for farmers in Israel.  With the coming of Rosh Hashanah (Jewish New Year) in late September, the Sabbatical year begins.  Various legal loopholes-- such as the fictional sale of farms to non-Jewish owners for a nominal amount for the year-- have been developed through the Chief Rabbinate and Religious Courts to allow Jewish farmers to avoid the complete shut-down of their farms that would flow from strict observance of the Biblical mandate.

California Univerisites De-Recognize InterVarsity Christian Fellowship

RNS reported this week that the California State University System is withdrawing official recognition  of the InterVarsity Christian Fellowship at its 23 campuses because the organization limits leadership roles to those who affirm belief in its traditional Christian Doctrinal Basis (full text). While membership in the group is open to any student, its limit on who may be leaders conflicts with the University System's non-discrimination policy. De-recognition means the group will lose it discount on use of meeting rooms, and will lose access to other official events such as student fairs. Christian Post reports that the group will  will now use other techniques, including social media, for recruitment.

New "Candy-Cane" Religious Message Case Filed

In what may be a reprise of nearly a decade of litigation out of Texas, a new "candy-cane" case has hit the courts, this time in California. The San Bernadino County Sun reported yesterday that Alex and Myrna Martinez, parents of a first grader (Isaiah), have filed a lawsuit against the West Covina Unified School district alleging that a Merced Elementary School teacher refused to allow their son to distribute Christmas candy canes with a story about Jesus attached. Allegedly the teacher tore the messages off the candy before allowing the student to distribute them, saying that Jesus is not allowed in school. The complaint claims that other students were allowed to distribute Christmas gifts. The school board says that the candy canes were being distributed during instructional time, which is prohibited by school rules. Advocates for Faith and Freedom, which sent a demand letter (full text) to school officials on behalf of the student, has posted more about the case. School board president Steve Cox says he is concerned that the district is being "set up" as a test case.

Philadephpia Schools Settle Religious Accommodation Suit With Justice Department

The Justice Department announced Monday that it has reached a settlement with the School District of Philadelphia in a Title VII religious accommodation lawsuit that it filed in March. (See prior posting.)  At issue is the school district's October 2010 policy change which barred a Muslim school police officer from wearing a beard longer than one-quarter inch. Under the settlement, the school district will adopt a revised appearance and attire policy for police officers that will allow them to apply for a religious accommodations. The school district will also pay damages to two employees, expunge disciplinary items from their files, and will train supervisors on religious accommodation issues.

Amish Will Comply Under Protest With Court's Order, But Will Not Take Next Steps

The Eau Claire Leader-Telegram reported Monday that a Wisconsin trial court judge ordered three Amish defendants to sign applications for building and sanitary permits and pay the required fees, or otherwise to be evicted from their homes.  Defendants' lawyer says that they will sign "under protest" in order to stay in their homes, but that they have no intention of installing the required smoke and carbon monoxide detectors.  He says that the signing is an affirmation that the laws exist, not an agreement to comply with them. Electric or battry operated detectors violate Old Order Amish religious beliefs. Defendants are considering whether to appeal the court's ruling.

Plaintiffs Lose Suit Against Cisco For Developing System Used To Track Falun Gong In China

In Doe I v. Cisco Systems, Inc., (ND CA, Sept. 5, 2014), a California federal district court dismissed a lawsuit by Falun Gong practitioners that claimed Cisco aided and abetted and conspired with the Chinese Communist Party and Public Security officers in committing human rights abuses against Falun Gong. Cisco created the Golden Shield security system that was used to intercept and track communications of Falun Gong, leading to their apprehension, arrest and torture. The court dismissed plaintiffs claims under the Alien Tort Statute (ATS), holding that the actions were not suffciently related to the territory of the United States to overcome the presumptions against extraterritorial application of the ATS. It dismissed aiding and abetting claims, finding that it was not shown that Cisco had knowledge that its product would be used for torture and forced conversions.  Courthouse News Service reports on the decision.

7th Circuit Hears Oral Arguments In Parsonage Allowance Challenge

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Freedom From Religion Foundation v. Lew. In the case, a Wisconsin federal district court held that the tax code provision that excludes a minister's parsonage allowance from gross income violates the Establishment Clause. Courthouse News Service reports on the oral arguments which focused both on standing and Establishment Clause issues.