Pope Francis Met With Kim Davis; Supports Conscientious Objection

In a press release issued yesterday, Liberty Counsel disclosed that Rowan County, Kentucky Clerk Kim Davis met with Pope Francis at the Vatican Embassy in Washington last Thursday. Davis' husband was also at the private meeting during which the Pope, speaking in English, thanked Davis for her courage and presented her with rosaries for her parents who are Catholic. Davis has refused to issue marriage licences to same-sex couples, and was jailed for contempt for several days as a result. (See prior posting.) In a press conference on his plane back to Rome (before the meeting with Davis was announced publicly), the Pope told reporters that conscientious objection is a human right. When asked whether that applies to government officials, the Pope responded: "It is a human right and if a government official is a human person, he has that right."

Archdiocese Must Go To Trial On Teacher's Hostile Work Environment Claims

In Bohnert v. Roman Catholic Archbishop of San Francisco, (ND CA, Sept. 25, 2015), a California federal district court refused to dismiss a hostile work environment and emotional distress suit by by a former biology teacher in a boys' Catholic high school.  As described by the court, male students at the school sexually harassed the teacher, including disseminating several "upskirt" photos and videos of her.  In a 38-page opinion, the court rejected the Archdiocese's  motion for summary judgment on its "ministerial exception" and "church autonomy" defenses, finding that numerous factual issues remain.

Recent Articles of Interest

From SSRN:

• Meital Pinto, The Absence of the Right to Culture of Minorities Within Minorities in Israel: A Tale of a Cultural Dissent Case, (4 Laws 579–601 (2015)).
• Janne Elisabeth Nijman, Grotius’ Imago Dei Anthropology: Grounding Ius Naturae et Gentium, (Martti Koskenniemi, Monica García-Salmones, and Paolo Amoroso (Eds.), International law and Religion (Forthcoming)).
• Eric Heinze, Hate Speech and Democratic Citizenship, (in Hate Speech and Democratic Citizenship, Oxford University Press, February 2016).
• Darryl Li, Jihad in a World of Sovereigns: Law, Violence, and Islam in the Bosnia Crisis, (Law and Social Inquiry, 2015).
• Christopher R. Hoyt, Income Tax Deductions for Charitable Bequests of IRD, (September 24, 2015).

From SSRN (Same-Sex Marriage):

• James M. Donovan, Half-Baked: The Demand by For-Profit Businesses for Religious Exemptions from Selling to Same-Sex Couples, (Loyola of Los Angeles Law Review, Vol. 49, 2015).
• Patrick Talbot, Same-Sex Marriage and Religious Liberty Clashes in the U.S., After Obergefell v. Hodges: (An American Constitutional Challenge), (Anthology on Religious Freedom by Center of Ethics and Socio-Religiosity Studies Petra Christian University (PCU), Forthcoming).
• Anthony C. Infanti, Victims of Our Own Success: The Perils of Obergefell and Windsor, (Ohio State Law Journal Furthermore, Forthcoming).
• Peter Nicolas, Obergefell's Squandered Potential, (California Law Review Circuit, 2015 Forthcoming).

Malaysia's Federal Court Upholds State Ban On Producing Book Contrary To Islamic Law

As reported by Bernama and Malaysian Insider, Malaysia's Federal Court yesterday upheld against freedom of expression and other challenges Section 16 of the Selangor Syariah Law which criminalizes producing, disseminating or possessing for sale any book or document that is contrary to Islamic law.  ZI Publications and its director Mohd Ezra Mohd Zaid were charged by Selangore state authorities with violating Section 16 by publishing a book titled "Allah, Love and Liberty" written by a Canadian author and Muslim reformer Irshad Manji. ZI and Zaid challenged the validity of the state law in the Federal Court.  But Justice Raus, writing for a 5-judge panel, said that the constitutional protections for freedom of expression must be read together with provisions declaring Islam as the country's religion and giving states the power to control or restrict propagation of any religious doctrine or belief among persons professing the religion of Islam.

Estate Loses Income Tax Deduction For Large Contributions To Churches Because of Will Challenges

In Estate of DiMarco v. Commissioner, (T.C., Sept. 21, 2015), the U.S. Tax Court denied the estate of John DiMarco a deduction on its 2010 income tax return for a $314,942 contribution to two churches.  DiMarco's will left his residuary estate to the churches he attended regularly at the time of his death. The Tax Court held that because of various challenges to the will, it was not clear until 2013 that the churches would receive the contributions.  Thus presumably any deduction would have to be taken in that year, if income was available to offset against the deduction. The court affirmed the tax commissioner's assessment of a $108,588 deficiency for 2010.

5th Circuit's Revised Opinion Again Allows School To Reject Jumbotron Ad of Tattooed Jesus

Last week in Little Pencil, LLC v. Lubbock Independent School District, (5th Cir., Sept. 23, 2015), the U.S. 5th Circuit Court of Appeals denied an en banc rehearing, but granted a panel rehearing, in a religious free speech case.  The panel withdrew its earlier brief opinion that merely adopted the reasoning of the district court and substituted an opinion that reached the same result-- dismissing the complaint-- but on somewhat narrower grounds.  At issue was a high school's refusal to display on its football field jumbotron an ad depicting a tattooed Jesus and a website URL, as part of a marketing concept using a new way to share the Bible's teachings. In its new opinion, the court s

We hold that the football field was a limited public forum and LISD’s content-based, viewpoint-neutral limitations were reasonable in the light of a Texas law against tattoo parlors serving minors and LISD policies against visible tattoos.... The plaintiffs' Establishment Clause claim fails because LISD may legitimately exclude the ad for its tattoo content without a "risk [of] fostering a pervasive bias or hostility to religion..."

The court also rejected due process, equal protection and free exercise claims.

USCIRF Sunsets Sept. 30 If New Legislation Is Not Passed

While most of the Congressional attention to Sept. 30 has focused on the broad expiration of government funding on that date if a Continuing Resolution is not passed (background), less noticed is the fact that authorization for the U.S. Commission on International Religious Freedom also sunsets on that date.  Not surprisingly, last week USCIRF attempted to call attention to the problem by issuing a press release.  In Congress, S. 2078 has been introduced to extend the Commission for another four years, but so far it has only been reported out of committee in the Senate.

Recent Prisoner Free Exercise Cases

In Thomas v. Morris, 2015 U.S. Dist. LEXIS 125911 (ED WI, Sept. 21, 2015), a Wisconsin federal district court allowed an inmate to move ahead with his complaint that certain jail officials refused to honor his food requests relating to Passover 2015.

In Thomas v. Lawler, 2015 U.S. Dist. LEXIS 126135 (MD PA Sept. 22, 2015), a Pennsylvania federal district court dismissed a Muslim inmate's complaints that the multi-faith chapel contains offensive religious iconography; he is unable to pray shoulder to shoulder with other Muslims due to inadequate space; he is unable clean himself prior to religious services; and the chapel's location up 4 flights of steps often means he cannot attend prayer services because his health prevents his climbing stairs,

In Gee v. Sabol, 2015 U.S. Dist. LEXIS 126872 (MD PA, Sept 22, 2015), a Pennsylvania federal district court rejected an inmate's complaint that he was denied kosher meals, finding he had not established that he has a sincere religious belief in Judaism.

In Denegal v. Brazelton, 2015 U.S. Dist. LEXIS 126982 (ED CA, Sept. 22, 2015), a California federal magistrate judge recommended that an inmate be allowed to move ahead against one of the defendants on his complaint that he was denied his right to a name change for religious reasons.

In Karafili v. Cruzen, 2015 U.S. Dist. LEXIS 127094 (ND CA, Sept. 22, 2015), a California federal district court permitted a Muslim inmate to move ahead with his complaint that Muslim group prayer was disrupted one day even though Muslim inmates had received permission to pray in groups of up to 15.

In Bouman v. Broome, 2015 U.S. Dist. LEXIS 127555 (SD MS, Sept. 23, 2015), a Mississippi federal district court adopted a magistrate's recommendations and dismissed a Jewish inmate's complaint seeking $9 million in damages for violation of  his free exercise rights when he was disciplined for taking his Passover meal out of the dining area into his cell.

In Stinski v. Chatman, 2015 U.S. Dist. LEXIS 128061 (MD GA, Sept. 24, 2015), a Georgia federal district court, adopting in part a magistrate's recommendations, allowed a Wiccan inmate to move forward against various defendants with complaints involving denial of religious items and observances, and complaints as to forced shaving and haircut.

In Begnoche v. DeRose, 2015 U.S. Dist. LEXIS 128633 (MD PA, Sept. 24, 2015), a Pennsylvania federal district court dismissed complaints by a Native American inmate regarding availability of a Native American spiritual adviser and celebration of the Green Corn Feast.

In Webb v. Broyles, 2015 U.S. Dist. LEXIS 128784 (WD VA, Sept. 24, 2015), a Virginia federal magistrate judge recommended dismissing an inmate's complaint that he was wrongly removed from the Common Fare diet.

Pope Francis Addresses Clergy Sex Abuse and New Definitions of Marriage

As reported by Vatican Radio, Pope Francis today in Philadelphia held a private meeting with victims of clergy sexual abuse. He then addressed a meeting of bishops and departed from his prepared remarks to begin as follows:

I hold the stories and the suffering and the sorrow of children who were sexually abused by priests deep in my heart.  I remain overwhelmed with shame that men entrusted with the tender care of children violated these little ones and caused grievous harm.  I am profoundly sorry. God weeps.

The crimes and sins of the sexual abuse of children must no longer be held in secret.  I pledge the zealous vigilance of the Church to protect children and the promise of accountability for all.

They, the survivors of abuse, have become true heralds of hope and ministers of mercy. We humbly owe each one of them and their families our gratitude for their immense courage to shine the light of Christ on the evil of the sexual abuse of children.

I’m telling you this because I’ve just met with a group of sex abuse victims who are being helped and accompanied here in Philadelphia.

The remainder of his remarks to the bishops are also carried in the same Vatican Radio coverage. Those remarks included the following, which appears to be a reference to the legal recognition of same-sex marriage:

Needless to say, our understanding, shaped by the interplay of ecclesial faith and the conjugal experience of sacramental grace, must not lead us to disregard the unprecedented changes taking place in contemporary society, with their social, cultural – and now juridical – effects on family bonds.  These changes affect all of us, believers and non-believers alike.  Christians are not “immune” to the changes of their times.  This concrete world, with all its many problems and possibilities, is where we must live, believe and proclaim.

Until recently, we lived in a social context where the similarities between the civil institution of marriage and the Christian sacrament were considerable and shared.  The two were interrelated and mutually supportive.  This is no longer the case. 

Church Official's Defamation Suit Dismissed On Ecclesiastical Abstention Grounds

In Dermody v. Presbyterian Church (USA), (KY Cir. Ct., Sept. 21, 2015), a Kentucky trial court dismissed on ecclesiastical abstention grounds a defamation suit by PCUSA's former Deputy Executive Director of Mission against PCUSA.  Plaintiff Roger Dermody based his claim on PCUSA's informing people outside the governing body of the church that Dermody had violated PCUSA's ethics policies, apparently by allowing pastors under his supervision to set up a new non-profit organization to support the creation of new worship communities. The court concluded that if it were to adjudicate the defamation claim and the defense of truthfulness, it would have to determine whether Dermody had in fact committed ethics violations, which would require it to interpret church doctrine and policies. [Thanks to Tom Rutledge for the lead.]

Iran Says It Will Sue Saudis Over Hajj Deaths

According to the Straits Times, Iran's Attorney-General Ibrahim Raeesi yesterday said that his country will file a lawsuit in international legal bodies against Saudi Arabia over the death of at least 769 people in a stampede during the  Hajj pilgrimage last week. (See prior posting.)  Some 130 of the dead were pilgrims from Iran, and another 340 Iranian nationals remain missing. Iran says Saudi authorities had inadequate safety measures at the symbolic stoning of the devil ritual.  The Saudi's say the stampede was beyond human control.

Pope Francis Speaks On Religious Liberty At Independence Hall

Pope Francis today during his visit to Philadelphia, delivered an address in front of Independence Hall.  The talk (full text) billed as the Address of Pope Francis at the Meeting for Religious Liberty was delivered to an audience comprised of many representatives of the immigrant community in the United States.  The Pope said in part:

Religious freedom certainly means the right to worship God, individually and in community, as our consciences dictate.  But religious liberty, by its nature, transcends places of worship and the private sphere of individuals and families. 

Our various religious traditions serve society primarily by the message they proclaim.  They call individuals and communities to worship God, the source of all life, liberty and happiness.  They remind us of the transcendent dimension of human existence and our irreducible freedom in the face of every claim to absolute power.  We need but look at history, especially the history of the last century, to see the atrocities perpetrated by systems which claimed to build one or another “earthly paradise” by dominating peoples, subjecting them to apparently indisputable principles and denying them any kind of rights.... 

In a world where various forms of modern tyranny seek to suppress religious freedom, or try to reduce it to a subculture without right to a voice in the public square, or to use religion as a pretext for hatred and brutality, it is imperative that the followers of the various religions join their voices in calling for peace, tolerance and respect for the dignity and rights of others.

CNN reported on the Pope's remarks, pointing out that Francis made "no explicit references to any of the U.S. Catholic bishops' recent battles over religious rights."

Nativity Scene Challenge Dismissed After New Law Creates Neutral Forum

In Freedom From Religion Foundation, Inc. v. Franklin County, Indiana, (SD IN, Sept. 23, 2015), an Indiana federal district court dismissed a suit challenging the annual display of a nativity scene on the lawn of the Franklin County courthouse.  After the suit was filed, the county enacted a new ordinance providing a content neutral system for erecting private displays on the courthouse lawn.  The court held that this eliminated plaintiffs' claim for injunctive relief.  While plaintiffs still sought nominal damages, the court held:

By seeking only nominal damages, plaintiffs concede ... that they suffered no actual injury, or at least that the injury they claim cannot be redressed by an award of actual damages; thus appearing to have no standing.

Thomas More Society issued a press release announcing the decision.

Obama Exchanges Views With China's President On Human Rights and Religious Freedom

China's President Xi Jinping is on a state visit to the United States. (Background).  The two leaders held a joint news conference yesterday (full text) covering a wide range of topics.  Among the topics addressed were human rights and religious freedom in China:

President Obama: ... [W]e had a frank discussion about human rights, as we have in the past.  And I again affirmed America’s unwavering support for the human rights and fundamental freedoms of all people, including freedom of assembly and expression, freedom of the press and freedom of religion.  And I expressed in candid terms our strong view that preventing journalists, lawyers, NGOs and civil society groups from operating freely, or closing churches and denying ethnic minorities equal treatment are all problematic, in our view, and actually prevent China and its people from realizing its full potential.  

Obviously, we recognize that there are real differences there.  And President Xi shared his views in terms of how he can move forward in a step-by-step way that preserves Chinese unity. So we expect that we’re going to continue to consult in these areas.  

Even as we recognize Tibet as part of the People’s Republic of China, we continue to encourage Chinese authorities to preserve the religious and cultural identity of the Tibetan people, and to engage the Dalai Lama or his representatives....

President Xi: ... Democracy and human rights are the common pursuit of mankind.  At the same time, we must recognize that countries have different historical processes and realities, and we need to respect people of all countries in the right to choose their own development path independently. 

The Chinese people are seeking to realize the great renew of the Chinese nation, which is the Chinese history.  This process in essence is a process to achieve social equity and justice and advancing human rights.  China stands ready to, in the spirit of equality and mutual respect, conduct human rights dialogue with the United States, expand consensus, reduce differences, learn from each other, and progress together.

White House Announces New Appointments To Faith-Based Advisory Council

In a press release yesterday, the White House announced the names of 18 individuals whom President Obama will appoint to his third Advisory Council on Faith-Based and Neighborhood Partnerships. Additional appointments will be announced at a later date.  According to the press release:

The charge for this Council focuses on steps the government should take to reduce poverty and inequality and create opportunity for all, including changes in policies, programs, and practices that affect the delivery of services by faith-based and community organizations and the needs of low-income and other underserved persons.

Challenge To City Council Invocation Policy Is Moot

In Beaton v. City of Eureka, (CA App, Sept. 21, 2015), a California Court of Appeals dismissed as moot a state constitutional challenge to the city of Eureka's Invocation Policy adopted in 2012.  That policy required invocations at city council meetings to be non-sectarian.  In 2014, after a 9th Circuit opinion holding that sectarian prayers at city council meetings do not violate the Establishment Clause of the California or federal constitutions, Eureka adopted a revised Invocation Policy.  The challenge to the original policy is moot and the court refused to rule on the broader question of whether legislative prayer in all forms violates the California constitution.

At St. Patrick's, Pope Francis Talks of Muslims, Sex Abuse Scandal and Liberal Nuns

Arriving in New York City, the second leg of his trip to the United States, Pope Francis last night delivered a homily during vespers at St. Patrick's Cathedral. Speaking in Spanish, the Pope again dealt with topics that touched political chords in the United States. New York Times has the translation of his remarks in the form they were prepared for delivery. ABC News has a translation that includes a preliminary paragraph the Pope added extending greetings to "my Muslim brothers and sisters ... as they celebrate the feast of the sacrifice."  He also extended his "sentiments of closeness" to Muslims on the deaths of hundreds in the crush of Hajj crowds near Mecca yesterday. (See prior posting.)

In remarks that are likely to be criticized by victim advocates, the Pope gave support to American priests in the wake of Church sex abuse scandals:

I know that, as a presbyterate in the midst of God’s people, you suffered greatly in the not distant past by having to bear the shame of some of your brothers who harmed and scandalized the Church in the most vulnerable of her members… In the words of the Book of Revelation, I know well that you “have come forth from the great tribulation” (Rev 7:14). I accompany you at this time of pain and difficulty, and I thank God for your faithful service to his people.

During his remarks, the Pope also gave a particularly strong shout out to American nuns, who had been the subject of criticism during Pope Benedict XVI's tenure for their not hewing closely enough to conservative positions of the American bishops. (See prior posting.)  Pope Francis said:

In a special way I would like to express my esteem and gratitude to the religious women of the United States. What would the Church be without you? Women of strength, fighters, with that spirit of courage which puts you in the front lines in the proclamation of the Gospel. To you, religious women, sisters and mothers of this people, I wish to say “thank you”, a big thank you… and to tell you that I love you very much.

I know that many of you are in the front lines in meeting the challenges of adapting to an evolving pastoral landscape. Whatever difficulties and trials you face, I ask you, like Saint Peter, to be at peace and to respond to them as Christ did: he thanked the Father, took up his cross and looked forward!

USA Today reports that the Pope was twice interrupted by applause during his remarks praising American nuns.

Suit Against Synagogue Alleges Pregnancy Discrimination

New York Post reports on a pregnancy/ gender discrimination lawsuit filed in New York federal district court against the elite Upper-West Side Orthodox Jewish congregation, Shearith Israel, by its long-time program director, Alana Shultz. According to the complaint (full text) in Shultz v. Congregation Shearith Israel of the City of New York, (SD NY, filed 9/22/2015), the congregation fired Shultz (under the pretext of a staff restructuring) after she informed her supervisor that she was 19 weeks pregnant when her Orthodox Jewish wedding ceremony was performed.  The dismissal took place when Shultz returned from her honeymoon 23 weeks pregnant.  After Shultz hired counsel, the synagogue offered to hire her back, but Shultz refused. The complaint alleges violations of New York city and state anti-discrimination laws and the federal Family Medical Leave Act.  The suit does not allege violations of the federal Pregnancy Discrimination Act, presumably because of the exemption for religious institutions.

UPDATE: Congregation Shearith Israel denies the allegations in the complaint and says Shultz is still employed, receiving the same compensation and benefits, even though she has not bee at work since Aug. 14. (Forward, 9/27).

Suit Against Former Pastor For Financial Misdeeds Dismissed On Church Autonomy Grounds

In Trustees of the Alpine Methodist Episcopal Church v. New Jersey United Methodist Church, (NJ Super., Sept. 22, 2015), a New Jersey trial court dismissed on church autonomy and hierarchical deference grounds a suit by the trustees of a Methodist congregation  against its former pastor for misuse of church funds. The court said in part:

Here, Plaintiff alleges that Rev. Kim misused or misappropriated church funds and property in a variety of ways, including forging checks, paying his personal utility bills with Church funds, and utilizing Tipton [the financial secretary] as a means to convert church donations.... 

Before the Court can determine whether Rev. Kim is liable to Plaintiff under any claim, it would first have to determine whether Rev. Kim violated the rules set forth in The Book of Discipline and whether the [United Methodist Church's] policy and polity permitted Rev. Kim to engage in certain financial and managerial practices....

Moreover, Plaintiff’s sought relief through the UMC’s process, wherein Plaintiff’s representatives at the Church met with Superintendent Plumstead.... Plumstead met with the Church’s Staff Parish Relations Committee and advised the Committee that they had several options. The Committee could “move on”, i.e., accepting that grievances were duly lodged, or pursue internal church or legal action by filing a formal complaint with the bishop’s office... The Committee did not take any further internal church or legal action. In response, Plaintiff, by and through new representatives, did not accept this decision and decided to separate from the UMC.... Plaintiff believes that the hierarchical bodies of the UMC did not reach a just resolution of their claims and therefore, seeks relief in a secular court. Plaintiff’s recent disenchantment with the UMC does not warrant secular court review in contravention of the longstanding jurisprudence of this state’s Appellate Division, its sister states, and the Supreme Court of the United States

Mosque Can Proceed With RLUIPA Challenge To Denial of Use Variance

Bensalem Masjid, Inc. v. Bensalem Township, Pennsylvania, (ED PA, Sept. 22, 2015), is a suit by an Islamic religious organization that was denied a use variance to allow it to build a mosque on a split-zoned parcel of property.  Plaintiff alleges that its application was scrutinized much more harshly than those from other groups. Here a Pennsylvania federal district court held that plaintiff can proceed on its substantial burden, non-discrimination, unreasonable limitation and equal terms claims under RLUIPA, its free exercise and equal protection claims, and its state Religious Freedom Protection Act claim.