Wednesday, March 25, 2015

Court Says Muslim Surveillance Documents May Not Be Withheld Under FOIA "Law Enforcement" Exemption

In ACLU of North California v. FBI, (ND CA, March 23, 2015), in a Freedom of Information Act suit, a California federal district court held that the FBI cannot use the exemption for records compiled for law enforcement purposes to withhold documents relating to the investigation and surveillance of Muslim communities, and collection of ethnic and racial data, in Northern California. The court said:
In short, the FBI employs many various techniques to combat unlawful activity, some of which, if publicly disclosed, would undermine their effectiveness. 
That this may well be true does not, without more, permit the FBI to apply Exemption 7 [the "law enforcement" exemption] to withhold or redact information about such tactics, however. Neither the Hardy declarations nor the FBI’s pleadings tether the activities the withheld documents concern to the enforcement of any particular law....  Exemption 7 is not the appropriate umbrella under which to shield these documents from public view.
The ACLU's blog has more information on the decision.

Puerto Rico Concedes On Same-Sex Marriage Laws

Last October, a Puerto Rico federal district court gave a rare victory to opponents of same-sex marriage. (See prior posting.)  Plaintiffs appealed the decision to the U.S. 1st Circuit Court of Appeals.  Last week, Puerto Rican officials filed a brief with the 1st Circuit (full text) stating that Puerto Rico would no longer defend the constitutionality of its marriage laws.  Appellanats' brief states in part:
To the extent that Commonwealth law does not afford homosexual couples the same rights and entitlements that heterosexual couples enjoy, the Commonwealth recognizes that equal protection and substantive due process guarantees mandate application of heightened scrutiny in this case. Under said heightened standard, the Commonwealth cannot responsibly advance before this Court any interest sufficiently important or compelling to justify the differentiated treatment afforded so far to Plaintiffs.
Freedom to Marry website has more on the decision.

Bible Quotes In University VP's Presentation To Employees Not Protected By First Amendment

Faulkner v. University of Cincinnati, (SD OH, March 23, 2015), involves a challenge by an Associate Vice President in the University's Department of Internet Technology to disciplinary action taken against him for his use of Biblical quotations in a departmental presentation designed to improve leadership skills of participants. An Ohio federal district court dismissed the major part of plaintiff's claim, but permitted him to move ahead on one portion of his complaint.  The court explained:
The Court concludes that Faulkner was not speaking as a private citizen on a matter of public concern when he gave his presentation to the IT Leadership Academy. Therefore, that speech was not protected by the First Amendment, and he cannot challenge the "discipline" that resulted - his attendance at a "sensitivity" seminar. But this conclusion does not require the dismissal of the entirety of his First Amendment claims. Faulkner is also challenging the University's prohibition on making any biblical quotations in "future lectures or in work related interactions." This broadly worded ban could apply to consensual conversations with colleagues, to religious symbolic speech, and to "interactions" of all sorts that might occur outside of the classroom or officially sanctioned University-sponsored groups.

Indiana Passes RFRA Law

The Indiana General Assembly yesterday gave final approval to Senate Bill 101, the Indiana Religious Freedom Restoration Act. (full text).  The bill is broader than its Federal counterpart in several ways.  It explicitly protects the exercise of religion by entities as well as individuals.  Its enumeration of entities includes "a corporation", without limiting this to closely-held companies.  The bill's protections may be invoked when a person's exercise of religion is "likely" to be substantially burdened by government action, not just when it has been burdened.  The bill also permits the assertion of free exercise rights as a claim or defense in judicial or administrative proceedings even if the government is not a party to the proceedings. The relevant governmental entity has a right to intervene in such cases to respond to the RFRA claim. A remedy under the bill is only available against the government; suits by employees or applicants invoking the law against private employers are precluded.

In a statement (full text) after the bill passed yesterday, Governor Mike Pence said he strongly supports the bill and will sign it. Meanwhile, Gen Con, a major gaming convention held each year in Indianapolis, wrote the governor (full text) asking him to reconsider, saying that legislation that could lead to discrimination against its attendees will factor into its decision on whether to hold the convention in Indiana in future years.

Tuesday, March 24, 2015

Ted Cruz Announces Candidacy With Focus On Agenda of Religious Conservatives

Texas Republican Senator Ted Cruz yesterday became the first to officially announce his candidacy for President of the United States in 2016.  In a speech at Liberty University (full text) directed particularly at Christian Conservatives, Cruz enumerated the Conservative agenda and said in part:
Today, roughly half of born again Christians aren’t voting. They’re staying home. Imagine instead millions of people of faith all across America coming out to the polls and voting our values.
CBS News described his speech as "an impassioned appeal to the religious right."

In another move that focuses on concerns of the religious right, Cruz announced last week that he has introduced two joint resolutions in Congress to overturn recently enacted legislation by the D.C. City Council. (S.J. Res. 10;  S.J. Res. 11). As described by Cruz's press release:
In January, the District enacted the Reproductive Health Non-Discrimination Amendment Act of 2014, which could require employers to provide health plans that cover abortion services, and the Human Rights Amendment Act of 2014, which could force religious schools to support activities that violate the tenets of their faith.
Congress has until April 17 to act to prevent the D.C. laws from taking effect. (See prior related posting.)

In Italy, Lawsuit Raises Challenge To Prayer In Schools

New York Times reported yesterday that the continuing controversy over church-state relations in Italy is reflected in a recent lawsuit challenging the decision of a school board in Bologna to allow priests to offer an Easter blessing at three elementary schools.  Previously, a local court had held that an Easter prayer in a classroom during school hours was unconstitutional.  But the current plan is for voluntary prayer on school grounds shortly after the closing bell.  An Italian constitutional law expert commented:
In Italy, it is different. We do not have religion in the state, but we have tradition and relationships that link the Italian Republic with the Catholic Church.
A hearing on the challenge is not scheduled until later this week, and the blessing has already been recited at two of the schools. Prayer scheduled at one school for next Saturday has been canceled.

Trial Judge's Opening With Pledge of Allegiance Does Not Violate Establishment Clause or Due Process

In State of Ohio v. Daniels, (OH App., March 16, 2015), an Ohio appeals court affirmed the drug possession and drug trafficking conviction of Michael Daniels, Jr., who, among other things, argued that the trial court erred when it required the parties and the jury at his trial to recite the Pledge of Allegiance that invokes a Supreme Being in violation of the Establishment Clause. He also urged that the Pledge amounts to a required loyalty oath that violates the due process clause.  The court held that, first, Daniels waived any challenge by failing to object to the Pledge when the court announced that it would be recited. It continued:
[E]ven if the waiver doctrine did not apply herein, appellant provides no definitive case law holding that the use of “under God” in the Pledge of Allegiance, particularly when made part of a customary courtroom recitation, constitutes an impermissible State endorsement of monotheistic religion ..., and he further fails to articulate how an appellate reversal of his conviction would be the proper remedy for such an alleged constitutional violation.
Responding to Daniels' due process argument, the court quoted from a 2004 federal 10th Circuit Court of Appeals opinion:
 "We recognize that trial judges, among their many other responsibilities, should take care not to create the impression that it is appropriate for the judge or the jury to favor the prosecution simply because the court and the prosecution are both institutions of the United States. However, we do not think it reasonable to suppose that the jurors inferred from the Pledge of Allegiance a patriotic obligation to serve as a rubber stamp for the prosecution...."

Supreme Court Hears Oral Arguments On Specialty Plates and Free Speech

The U.S. Supreme Court yesterday heard oral arguments in Walker v. Texas Division, Sons of Confederate Veterans, Inc. (Full transcript of oral arguments).  In the case, the 5th Circuit Court of Appeals held in a 2-1 decision that messages on state specialty license plates are private speech, not government speech.  The 5th Circuit majority also concluded that Texas engaged in unconstitutional viewpoint discrimination when it rejected, as offensive, a specialty plate design that included the Confederate battle flag. (See prior related posting.)  SCOTUSblog reports on the oral arguments, saying in part:
From the moment that a state lawyer stood up in the Supreme Court to argue that messages on license plates are government speech, it seemed that the Justices went forward for the rest of the hour assuming that it was not — at least not always.  A strange hearing thus unfolded on when the First Amendment puts curbs on government regulation of expression, and how tight those curbs can be.
New York Times also reports on the arguments.

Monday, March 23, 2015

Muslim School's Zoning Challenge Dismissed Without Reaching Merits

In Muslim Community Association of Ann Arbor v. Pittsfield Charter Township, (ED MI, March 20, 2015), the Michigan Islamic Academy claimed that Pittsfield Township violated the substantial burden, anti-discrimination and equal terms provisions of RLUIPA, as well as the Establishment Clause and the Equal Protection Clause, in denying it zoning authorization so it could build a Muslim school. The court dismissed the RLUIPA claims on the basis that plaintiff had no legally cognizable interest in the property.  It merely had a promise from the owner to donate 5 acres for the school if zoning approval was obtained. The court went on to hold that plaintiff's RLUIPA and constitutional claims are not ripe because plaintiff never went beyond the Planning Commission and Township Board to the Zoning Administrator and Zoning Board of Appeals. The court held that plaintiff could continue or refile the suit if these defects are cured. (See prior related posting.).

Recent Articles of Interest

From SSRN:
From SSRN (LGBT Rights and Same-Sex Marriage):
From SSRN (Non-U.S. Law and Society):
From SmartCILP:

College Admission Denial Because of Religious References In Interview Supports Establishment Clause Claim

In Jenkins v. Kurtinitis, (D MD, March 20, 2015), a Maryland federal district court permitted an unsuccessful applicant to a community college radiation therapy program to move ahead with his Establishment Clause claim, while dismissing his free speech and state free exercise claims. Plaintiff Brandon Jenkins claimed that the program director Adrienne Dougherty denied him admission to the program in part because during his interview in answering a question about the thing most important to him, Jenkins replied "My God."  In an e-mail to Jenkins, Dougherty told him that "this field is not the place for religion."  The court held that:
Jenkins has alleged sufficient facts to state a claim for relief [under the Establishment Clause] because, given the posture of the case, I cannot determine whether defendants acted with an impermissible [religious] purpose.
However, rejecting Jenkins' free expression claim, the court said in part:
the Free Speech Clause does not protect speech expressed in an admissions interview from admissions consequences in a competitive process....

Sunday, March 22, 2015

Recent Prisoner Free Exercise Cases

In Bolds v. Cavazos, (9th Cir., March 20, 2015), the 9th Circuit held that the district court properly dismissed an inmate's free exercise claim because he failed to allege facts showing that the confiscation of his television substantially burdened the practice of his religion.

In Rojas v. Heimgartner, (10th Cir., March 20, 2015), the 10th Circuit upheld a prison policy barring Native American inmates from wearing colored bandannas outside of group religious worship services.

In Prim v. Jackson, 2015 U.S. Dist. LEXIS 32004 (SD OH, March 16, 2015), an inmate alleged he was prevented from celebrating the Passover seder, that inadequate security in the Chapel for female staff caused it to be closed from Friday night to Saturday night, and he was denied kosher meals.  A federal magistrate judge recommended dismissing some of the claims against certain of the defendants.

In Marshall v. Pennsylvania Department of Corrections, 2015 U.S. Dist. LEXIS 32773 (MD PA, March 17, 2015), a Pennsylvania federal magistrate judge upheld a prison's refusal to provide separate congregate religious services for Nation of Islam adherents, limiting them to worshiping with Sunni Muslims.

In Brock-Butler v. Parker, 2015 U.S. Dist. LEXIS 33402 (WD KY, March 18, 2015), a Kentucky federal district court, in a case primarily about the use of excessive force against an inmate, permitted plaintiff to also proceed with a free exercise claim that he was forced to shave his head to treat a gash that resulted from his being Tasered.

In Williams v. Wilkinson, 2015 U.S. Dist. LEXIS 34172 (ED OK, March 19, 2015), an Oklahoma federal district court dismissed, for failure to exhaust administrative remedies, an inmate's complaint that Muslim communal religious services were suspended. It dismissed on the merits plaintiff's complaint that he had been denied a kosher diet.

In Shepherd v. Fischer, 2015 U.S. Dist. LEXIS 33110 (ND NY, March 18, 2015), a New York federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 34238, Feb. 23, 2015) and permitted a Rastafarian inmate to proceed against certain defendants on his complaint regarding several interferences with his religious practices.(diet, dreadlocks, religious services).

In Rogers v. Dart, 2015 U.S. Dist. LEXIS 34464 (ND IL, March 19, 2015), an Illinois federal district court permitted an inmate to proceed with his complaints regarding religious diet and auditing of his commissary purchases as retaliation for filing a grievance.

Court Rejects RFRA and Religious Belief Defenses In Forced "Get" Case

In United States v. Epstein, (D NJ, March 19, 2015), a New Jersey federal district court, in a 53-page opinion, explained various rulings the court had made on religious-based defenses raised by defendants who were being tried on charges of kidnapping and conspiracy for using coercive tactics to Force Orthodox Jewish husbands to give their wives divorce documents ("get").  The court rejected defendants' contention that the Religious Freedom Restoration Act required dismissal of the indictment against them.  The court held:
I conclude that the Government’s decision to prosecute Defendants does not constitute a substantial burden on Defendants’ religious exercise. Further, even if a substantial burden does exist, I find that the Government has a compelling interest in preventing crimes of violence, and moreover, the arrest and prosecution of individuals who violate such criminal laws is the least restrictive means of enforcing that interest.
Defendants had argued that freeing an agunah (woman who was refused a get) is a mitzvah in Jewish law. The court responded:
[I]f Defendants had acceptable religious alternatives -- instead of resorting to violating the criminal laws -- I find that the Government’s application of the kidnapping laws to Defendants here does not substantially Defendants’ religious exercise.  Nevertheless, even if Defendants had exhausted all other available non-violent means of coercing a husband to give his wife a get, and the only remaining method of coercion, as argued by Defendants, is through violence or force, i.e., kidnapping, I remain convinced that would not amount to a substantial burden. This Court has not found any authority condoning the use of violence under the guise of religion, and more importantly, no case has found the Government’s application of violent crime laws to certain religious practices is a substantial burden.
The court also ruled that defendants' religious beliefs do not negate the element of specific intent required for a conviction.  The court said in part:
According to Defendants, by signing the ketubah, an Orthodox Jewish husband promises to be bound by the laws of Moses and Israel, both to the authority of the beth din and to the halakhic, or the Jewish religious law, process of the “forced” get as the term is described by Maimonides.  Therefore, taken together, Defendants insist that because of their religious beliefs and because of their beliefs that the victims have consented to the coercive acts, i.e., kidnapping, Defendants lack the intent to commit the crimes as charged. The Court rejects this theory of defense.

Saturday, March 21, 2015

Establishment Clause Challenge To Church Directional Sign Moves Ahead

In Tearpock-Martini v. Shickshinny Borough, (MD PA, March 20, 2015), a Pennsylvania federal district court refused to dismiss an Establishment Clause claim against a municipality whose borough council (of which plaintiff was a member) voted to allow a church to install a sign on rights of way bordering plaintiff's property over her objections. Borough street workers and one of the council members installed the sign which read "Bible Baptist Church Welcomes Your" and had a directional arrow with "1 block" written on it. In allowing plaintiff to move ahead, the court said:
The complaint makes sufficient allegations that the government placed the sign on the public right of way. The sign points in the direction of the church and contains a Bible and a cross. The circumstances surrounding the sign are very fact sensitive. For example, according to the plaintiff’s brief, the township does not permit other directional signs and denied the request of the local post office to place a sign. Depending on the facts that are revealed by discovery, a reasonable observer who is familiar with the history and context of the display may perceive a governmental endorsement of religion.
(See prior related posting.) Citizens Voice reports on the decision.

Friday, March 20, 2015

6th Circuit Rejects Good News Club's Fee Waiver Claim

In Child Evangelism Fellowship, Inc. v. Cleveland Metropolitan School District, (6th Cir., March 20, 2015), the U.S. 6th Circuit Court of Appeals in a 2-1 decision affirmed the denial of a preliminary injunction in a suit by Child Evangelism Fellowship (CEF) which had claimed that it was entitled to a waiver of fees for use of school facilities for its Good News Club meetings. CEF claimed that the school system engaged in viewpoint discrimination by waiving fees for the Boy Scouts but not for CEF. The majority said:
As the district court concluded, CEF’s evidence in support of its request for injunctive relief did not adequately show that the District had a fee-waiver policy. To the contrary, at this early juncture, the record supports the District’s position that it merely accepted in-kind payment in lieu of monetary fees.
Judge White dissented, saying that the in-kind contributions by the Boy Scouts to participating students did not amount to compensation to the school district, and thus amounted to a fee waiver.  She said:
I agree that CEF failed to “show[] that a fee-waiver policy even exists.” ... CEF has shown, however, that a fee-waiver practice existed between the District and the Boy Scouts and that despite repeated requests, the District did not provide CEF with a similar arrangement....
(See prior related posting.) [Thanks to Tom Rutledge for the lead.]

Justice Ginsburg Co-Authors A Passover Essay

Religion News Service reported yesterday on the essay written recently by U.S. Supreme Court Justice Ruth Bader Ginsburg along with Washington, D.C. Rabbi Lauren Holtzblatt as part of American Jewish World Service’s Chag v’Chesed (“Celebration and Compassion”) series in anticipation of Passover. Titled The Heroic and Visionary Women of Passover, the essay focuses on several women in the Passover story who defied Pharaoh to save Moses' life as an infant. Rabbi Holtzblatt's husband is one of Justice Ginsburg's law clerks.

Canada's Supreme Court Says Quebec Catholic School Should Be Allowed Modified Religious Culture Program

In Loyola High School v. Quebec (Attorney General), (Sup Ct Canada, March 19, 2015), Canada's Supreme Court  held that the Quebec Minister of Education's refusal to grant an exemption to allow Loyola, an English-speaking Jesuit high school, to adopt an alternative to the mandated Program on Ethics and Religious Culture (ERC) infringes the school's religious freedom more than is necessary to carry out the objectives of the ERC requirement.  The mandated ERC program has 3 components: religious culture, ethics and dialogue. The government insisted that all these parts be taught from a neutral perspective.  Loyola wanted to offer an alternative course taught from the perspective of Catholic beliefs and ethics. As summarized by the Court, the majority of 4 justices held that the case should be remanded to the Minister of Education in light of the following principles:
In the Quebec context, where private denominational schools are legal, preventing a school like Loyola from teaching and discussing Catholicism from its own perspective does little to further the ERC Program’s objectives while at the same time seriously interfering with religious freedom. The Minister’s decision suggests that engagement with an individual’s own religion on his or her own terms can be presumed to impair respect for others. This assumption led the Minister to a decision that does not, overall, strike a proportionate balance between the Charter  protections and statutory objectives at stake in this case.
That said, the Minister is not required to permit Loyola to teach about the ethics of other religions from a Catholic perspective. The risk of such an approach would be that other religions would necessarily be seen not as differently legitimate belief systems, but as worthy of respect only to the extent that they aligned with the tenets of Catholicism. This contradicts the ERC Program’s goals of ensuring respect for different religious beliefs. In a multicultural society, it is not a breach of anyone’s freedom of religion to be required to learn (or teach) about the doctrines and ethics of other world religions in a neutral and respectful way. In a religious high school, where students are learning about the precepts of one particular faith throughout their education, it is arguably even more important that they learn, in as objective a way as possible, about other belief systems and the reasons underlying those beliefs.
Three justices in a separate opinion argued that the Court should grant the exemption and fashion a remedy, saying:
Loyola’s teachers must be permitted to describe and explain Catholic doctrine and ethical beliefs from the Catholic perspective. Loyola’s teachers must describe and explain the ethical beliefs and doctrines of other religions in an objective and respectful way. Loyola’s teachers must maintain a respectful tone of debate, but where the context of the classroom discussion requires it, they may identify what Catholic beliefs are, why Catholics follow those beliefs, and the ways in which other ethical or doctrinal propositions do not accord with those beliefs.
 Orangeville Banner reports on the decision.

Thursday, March 19, 2015

New Resource On Legality of Same-Sex Unions Around The World

American Lawyer reported this week the the Jones Day law firm has launched a new website that provides information on the legal treatment of same-sex relationships in some 300 jurisdictions around the world. The website describes its coverage:
This guide is intended to provide a resource to help answer questions regarding whether particular jurisdictions throughout the world afford legal recognition to same-sex couples. For all U.N. recognized countries, including their constituent parts such as each U.S. State, and Taiwan, the guide answers whether legal recognition of same-sex couples is granted and, if so, provides answers to various follow-up questions, such as whether marriage or some other status is afforded same-sex couples, whether foreign same-sex marriages are recognized in the jurisdiction, and the manner in which same-sex couples may dissolve their relationships.
The website is also now listed under "Resources" in the Religion Clause sidebar.

FBI Approves Revised Hate Crime Data Collection Manual

On Feb. 27, the FBI approved a revised version of its Hate Crime Data Collection Guidelines And Training Manual.  The new version adds definitions and scenarios for categories of hate crimes on which data is to be collected for the first time beginning this year-- anti-Sikh, anti-Hindu and anti-Arab hate crimes. (See prior posting.) [Thanks to Michael Lieberman for the lead.]

Utah Enacts LGBT Anti-Discrimination Law With Extensive Religious Exemptions

As reported by JDSupra, on March 12, Utah Governor Gary Herbert signed S.B. 296,  Antidiscrimination and Religious Freedom Amendments to Utah's laws banning disrimination in employment and housing.  The bill reflected a compromise backed by the Mormon Church, as well as by supporters of LGBT rights, to ban discrimination based on sexual orientation and gender identity while giving broad religious exemptions from the anti-discrimination requirements. (See prior posting.)  Here is the full text of the religious exemptions:

  34A-5-102. Definitions -- Unincorporated entities
(i)(ii) "Employer" does not include:
(A) a religious organization, a religious corporation sole, a religious association, a religious society, a religious educational institution, or a religious leader, when that individual is acting in the capacity of a religious leader;
(B) any corporation or association constituting an affiliate, a wholly owned
subsidiary, or an agency of any religious organization, religious corporation sole, religious association, or religious society; or
(C) the Boy Scouts of America or its councils, chapters, or subsidiaries...

   34A-5-111. Application to the freedom of expressive association and the free exercise of religion.
       This chapter may not be interpreted to infringe upon the freedom of expressive association or the free exercise of religion protected by the First Amendment of the United States Constitution and Article I, Sections 1, 4, and 15 of the Utah Constitution....

    34A-5-112. Religious liberty protections -- Expressing beliefs and commitments in workplace -- Prohibition on employment actions against certain employee speech.

(1) An employee may express the employee's religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on equal terms with similar types of expression of beliefs or commitments allowed by the  employer in the workplace, unless the expression is in direct conflict with the essential business-related interests of the employer.

(2) An employer may not discharge, demote, terminate, or refuse to hire any person, or  retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and conditions of employment against any person otherwise qualified, for lawful expression or  expressive activity outside of the workplace regarding the person's religious, political, or personal convictions, including convictions about marriage, family, or sexuality, unless the expression or expressive activity is in direct conflict with the essential business-related interests of the employer....

  57-21-3. Exemptions -- Sale by private individuals -- Nonprofit organizations --Noncommercial transactions....

(2) This chapter does not apply to a dwelling or a temporary or permanent residence  facility if:
(a) the discrimination is by sex, sexual orientation, gender identity, or familial status for reasons of personal modesty or privacy, or in the furtherance of a religious institution's free exercise of religious rights under the First Amendment of the United States Constitution or the Utah Constitution; and
(b) the dwelling or the temporary or permanent residence facility is:
(i) operated by a nonprofit or charitable organization;
(ii) owned by, operated by, or under contract with a religious organization, a religious association, a religious educational institution, or a religious society;
(iii) owned by, operated by, or under contract with an affiliate of an entity described in Subsection (2)(b)(ii); or
(iv) owned by or operated by a person under contract with an entity described in
Subsection (2)(b)(ii).

... (4) (a) (i) Unless membership in a religion is restricted by race, color, sex, or national origin, this chapter does not prohibit an entity described in Subsection (4)(a)(ii) from:
(A) limiting the sale, rental, or occupancy of a dwelling or temporary or permanent residence facility the entity owns or operates for primarily noncommercial purposes to persons of the same religion; or
(B) giving preference to persons of the same religion when selling, renting, or selecting occupants for a dwelling, or a temporary or permanent residence facility, the entity owns or operates for primarily noncommercial purposes.

       (ii) The following entities are entitled to the exemptions described in Subsection (4)(a)(i):
(A) a religious organization, association, or society; or
(B) a nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society.

... (7) This chapter does not prohibit a nonprofit educational institution from:
(a) requiring its single students to live in a dwelling, or a temporary or permanent residence facility, that is owned by, operated by, or under contract with the nonprofit educational institution;
(b) segregating a dwelling, or a temporary or permanent residence facility, that is owned by, operated by, or under contract with the nonprofit educational institution on the basis of sex or familial status or both:
 (i) for reasons of personal modesty or privacy; or
 (ii) in the furtherance of a religious institution's free exercise of religious rights under the First Amendment of the United States Constitution or the Utah Constitution....