Obama Appoints Two Members To Holocaust Memorial Council

With only days left in office, President Obama continues to make appointments to various federal councils and advisory committees.  Among the appointments announced yesterday were two to the Holocaust Memorial Council-- Grant Harris and Andrew Weinstein.

Morocco Implementing Burqa Ban

According to UPI, in Morocco this week the government began to give notices to businesses that they must stop making and selling burqas. Government officials say the ban stems from instances in which criminals have used burqas to disguise themselves during robberies. Others however suggest that the ban of the head-to-toe garment is aimed at conservative Muslims in the country. [Thanks to Scott Mange for the lead.]

3rd Circuit: Church Welcome Sign Does Not Violate Establishment Clause

In Tearpock-Martini v. Shickshinny Borough, (3d Cir, Jan. 4, 2017), the U.S. 3rd Circuit Court of Appeals rejected an Establishment Clause challenge to a church sign put up by a Pennsylvania town on a right-of-way near plaintiff's home.  The sign depicts a cross and a Bible and reads "Bible Baptist Church Welcomes You!", and has an arrow pointing toward the church.  The court concluded that plaintiff failed to show that the Borough treated the Church more favorably than others.

Suit By FLDS Members Against Warren Jeffs' Former Lawyers Is Dismissed

In Bistline v. Jeffs, (D UT, Jan. 11, 2017), a Utah federal district court dismissed a suit that had been brought by former members of the FLDS Church against the law firm of  Snow Christensen & Martineau and one of its attorneys.  The suit claimed that the attorneys through amending and reinstating the United Effort Plan Trust gave Warren Jeffs the ability to impose his control over assets and property and oppress FLDS members.   The court dismissed malpractice, breach of fiduciary duty, fraud, negligent misrepresentation, civil conspiracy and civil RICO claims on statute of limitations grounds, except as to one plaintiff whose claims were dismissed as inadequately pleaded. Finally the court dismissed claims under the Trafficking Victims Protection Reauthorization Act, holding in part:

Plaintiffs suggest that Defendants are nonetheless liable because Defendants drafted the Trust documents that made Jeffs’ revelations guiding tenets in how the Trust was managed. Plaintiffs’ theory would make attorneys vicariously liable for the acts of a client in the mismanagement of a trust simply because the attorneys prepared documents giving the client discretion in how the trust was managed. This theory is not sufficient to state a claim under 18 U.S.C. § 1589(a)....

Plaintiffs theorize that because one of the reinstated Trust’s purposes was to further FLDS doctrines, and because some FLDS doctrines are illegal, the drafters of the Trust furthered illegal acts. This theory is not sufficient to support Plaintiffs’ claim that Defendants abused a legal process under 18 U.S.C. §1589(a)(3). The Trust’s provisions and the authority it gives are centered on the distribution of property in a way that would meet the just wants and needs of the FLDS community. Plaintiffs cite no authority for the proposition that allowing a client to distribute trust property on the basis of religious principles is an abuse of a legal process.

KETV News reports on the decision.

Priest Sues Diocese Claiming Retaliation For Cooperating With Law Enforcement

AP reported yesterday that a Catholic priest in Palm Beach County, Florida has sued his former diocese alleging that he was driven out of his position in retaliation for his contacting law enforcement authorities to report another priest who had shown sexually explicit photos of young boys to a 14-year old boy. Plaintiff Rev. John Gallagher, who had become head priest of Holy Name of Jesus parish, says that after he wrote Church officials accusing Palm Beach Diocese officials of trying to cover up the case, Bishop Gerald Barbarito drove him out by turning the Spanish-speaking portion of the parish against him. Barbarito also had diocese priests read a statement at all Masses saying that Gallagher was spreading falsehoods.

Teacher Fired For Marrying Same-Sex Partner Sues Catholic High School

The North Carolina ACLU yesterday announced the filing of a federal lawsuit on behalf of a teacher who was fired by a Catholic high school in Charlotte after the teacher announced on Facebook that he planned to marry his long-time same-sex partner. Plaintiff Lonnie Billard had taught for over ten years at the school and in 2012 was named the Teacher of the Year. The lawsuit alleges that the firing violates Title VII of the 1964 Civil Rights Act. WFAE reports on the lawsuit.

Feds Unable To Find Compromise On Contraceptive Coverage Mandate

Last July, in response to the U.S. Supreme Court's remand in Zubik v. Burwell several federal agencies sought suggestions on ways to further accommodate objections by religious non-profits to  furnishing their employees coverage for contraceptive services in employer health plans. The National Law Journal this week reported that after receiving over 54,000 comments, the agencies are not modifying the current rules.  In a Jan. 9 FAQ Release, the Department of Labor said in part:

the comments reviewed by the Departments in response to the RFI indicate that no feasible approach has been identified at this time that would resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.

The federal government also began filing status reports reflecting this decision with the various Courts of Appeal to which the cases had been remanded.

In Israel, A Victory and a Setback For Women's Prayer At Western Wall

In Israel today, proponents of equal rights for women at the Western Wall won a victory in the High Court of Justice. Haaretz reports that the Court ordered an end to special body searches of women suspected of smuggling in Torah scrolls for women to read at the Wall-- a practice strongly opposed by the Orthodox rabbi in charge of the Western Wall space. The decision is in response to a petition to the High Court to allow women to bring in their own Torah scrolls.  It was filed by four women who are members of the split -off "Original Women of the Wall" who want egalitarian prayer in the women's section of the Wall rather than a separate mixed prayer space for men and women that was negotiated by the larger "Women of the Wall" group.  The Court also gave religious authorities 30 days to explain why women cannot pray as they wish in the women's section of the wall, or alternatively to allow them to pray in another area that provides similar proximity to the Western Wall.

Meanwhile The Forward reported Monday that the East Jerusalem Development Authority took down a sign pointing to the existing egalitarian prayer space in the Robinson's Arch area near the Wall after an Orthodox Jewish group complained that it had been put up without a proper permit.

Sessions Hearings Include Questions On Religious Liberty

The Senate Judiciary Committee yesterday held hearings on the nomination of Senator Jeff Sessions for Attorney General of the United States.  Don Byrd at Blog From the Capital has conveniently put together video excerpts from the lengthy hearing which deal with issues of religious liberty, including Donald Trump's past proposal for a temporary ban on Muslims entering the U.S.

ADF Announces New Head of Organization

The conservative Christian advocacy group Alliance Defending Freedom announced yesterday that its long-time president Alan Sears is moving to the position of "Founder," while Michael Farris will serve as ADF's new president, CEO and general counsel. Farris was the founding president of the Home School Legal Defense Association and of Patrick Henry College.

Minnesota County Rejects Muslim Cemetery

City Pages reports that in Chisago County, Minnesota, county commissioners on Dec. 21 by a vote of 3-2 rejected the recommendation of the county Planning Commission refused to approve the use of 16 acres as a cemetery for the Islamic Community of Bosniaks, a Bosnian congregation with a mosque in Minneapolis-St. Paul.  The vote came after many neighbors expressed opposition on grounds ranging from traffic concerns, to the Muslim practice of burying their dead without a casket, to openly anti-Muslim attitudes.

European Court Rejects Muslim Parents' Complaints About Mixed Swim Lessons In Schools

In Osmanoğlu and Kocabaş v. Switzerland, (ECHR, Jan. 10. 2017) (full text of opinion in French), the European Court of Human Rights in a Chamber Judgment rejected a challenge by Muslim parents to a Swiss educational requirement that their young daughters attend mixed swim lessons.  The Court's press release summarized the decision:

The Court ... observed that the authorities’ refusal to grant ... an exemption from swimming lessons had been an interference with the freedom of religion, that interference being prescribed by law and pursuing a legitimate aim (protection of foreign pupils from any form of social exclusion).

The Court emphasised, however, that school played a special role in the process of social integration, particularly where children of foreign origin were concerned. It observed that the children’s interest in a full education, facilitating their successful social integration according to local customs and mores, took precedence over the parents’ wish to have their daughters exempted from mixed swimming lessons and that the children’s interest in attending swimming lessons was not just to learn to swim, but above all to take part in that activity with all the other pupils, with no exception on account of the children’s origin or their parents’ religious or philosophical convictions.

The Court also noted that the authorities had offered the applicants very flexible arrangements ... such as allowing their daughters to wear a burkini.... The Court accordingly found that by giving precedence to the children’s obligation to follow the full school curriculum and their successful integration over the applicants’ private interest in obtaining an exemption from mixed swimming lessons for their daughters on religious grounds, the domestic authorities had not exceeded the considerable margin of appreciation afforded to them ... which concerned compulsory education.

A Chamber Judgment may be appealed to the Grand Chamber. [Thanks to Law & Religion UK for the lead.]

Cert. Petition Filed In California Repairative Therapy Ban

A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Welch v. Brown, cert. filed 1/3/2017).  In the case, the 9th Circuit rejected facial free exercise and Establishment Clause challenges to California's ban on state-licensed mental health professionals providing "sexual orientation change efforts" for patients under 18. (See prior posting.) Pacific Justice Institute issued a press release announcing the filing of the petition for review.

Kentucky Enacts New Abortion Restrictions; Suit Filed Challenging Required Disclosures

In Kentucky yesterday, Gov. Matt Bevin signed into law H.B. 2 (full text), which, as described by CNN:

requires a physician or technician to perform an ultrasound, describe and display the ultrasound images to the mother, and provide audio of the fetal heartbeat to the mother before she may have an abortion. The text of the bill says the pregnant woman may choose to avert her eyes from the images, and request the volume of the heartbeat be turned down or off.

The law frames required disclosures in terms of providing information about the "unborn child."

The state's sole licensed abortion provider and three physicians immediately filed suit challenging the constitutionality of the law.  The complaint (full text) in EMW Women's Surgical Center, P.S.C. v. Beshear (WD KY, filed 1/9/2017), contends that the law violates rights of both physicians and patients. An ACLU press release announced the filing of the lawsuit.

The Governor also signed S.B. 5 which prohibits abortions after 20 weeks of pregnancy, with limited exceptions. Both H.B. 2 and S.B. 5 took effect immediately on signing. [Thanks to Tom Rutledge and Scott Mange for the leads.]

Cert. Denied In Buddhist Temple Dispute

The U.S. Supreme Court yesterday denied review in Tung v. China Buddhist Association, (Docket No. 16-450, cert. denied 1/9/2017). (Order List).  In the case, a New York state intermediate appellate court refused to order a Buddhist Temple to hold a membership meeting with a receiver determining those eligible to vote, holding that courts will not intervene in predominantly religious disputes. New York's highest court (Court of Appeals) affirmed in a summary decision. (See prior posting.) [Thanks to Mark Chopko for the lead.]

Claim For Interference With Inheritance Lies Against Legion of Christ

In Americans United For Life v. Legion of Christ of North America, Inc., (RI Super., Jan. 4, 2017), a Rhode Island trial court held that a claim of tortious interference with expectation of inheritance is cognizable under Rhode Island law.  At issue is a claim by an anti-abortion organization that Legion of Christ through fraud and undue influence induced Gabrielle Mee, a devout Catholic, to change her will to divert to Legion of Christ the 10% of her estate (equaling as much as $6 million) originally left to the pro-life group.  Her will already left 90% to Legion of Christ, and plaintiffs claim that had Ms. Mee learned of the charges of sexual abuse that surfaced as to Father Marcial Maciel Delgollado, the founder and former leader of Legion of Christ, she might well have completely cut them out of her will.  While allowing the tortious interference claim to move ahead, the court dismissed separate claims based on fraud and undue influence. AP reports on the decision. (See prior related posting.)

Problems In NY Town Experiencing Explosive Growth of Hasidic Jewish Community

Yesterday's Lower Hudson Journal News carried a very long investigative report titled Ramapo Nears Breaking Point, documenting the dislocations and conflict created by "chaotic, high-density sprawl" in a Rockland County, New York town that has seen explosive growth of its ultra-Orthodox, primarily Hasidic, Jewish community.  Here are a few excerpts from the report on the town of Ramapo:

While unprecedented population growth and a clash of cultures — complete with accusations of favoritism, anti-Semitism, racism and corruption — are symptoms of the changes, the Ramapo story is really one of loose zoning, lax enforcement of fire and building codes, and largely unchecked, out-of-control development....

Often, unchecked expansion is marked by dubious construction methods and materials, such as housing additions made of plywood. Extensions and even new structures are frequently built toward the back of lots, with no street access for emergency vehicles or municipal records of what’s actually there....

Rockland County had the state's highest population percentage increase in 2014.... While demand for housing keeps developers busy — and property values high — the town’s tax base has been eroded by an ever-growing number of tax-exempt yeshivas and synagogues, among other factors.....

The fast and loose nature of Ramapo development receives tacit approval from local officials who critics say rubber-stamp permits and ignore code enforcement. Often, those officials receive campaign contributions from developers.

Surrounding communities in Rockland County are taking legal steps to control development in order to avoid becoming "the next Ramapo."

Recent Articles and Books of Interest

From SSRN:

• Neil James Foster, Protection of Religious Free Speech in Australia, (Australian Christian Lawyers Conference 2016 - Freedom of Religious Speech).
• Helge Årsheim, Secularist Suspicion and Legal Pluralism at the United Nations, (Religion and Human Rights 11(2): 166-188, 2016).
• Bernard Jackson, Law and Narrative in the Book of Ruth: A Syntagmatic Reading, (August 8, 2016).
• Helge Årsheim, Internal Affairs? Assessing NGO Engagement for Religious Freedom at the United Nations and Beyond, (Anne Stensvold (ed.): Religion, State and the United Nations – Value Politics. London: Routledge, pp. 79-94, 2016).
• Suzanne A. Kim & Katherine A. Thurman, Social Rites of Marriage, (Georgetown Journal of Gender and the Law, Vol. 17, No. 745, 2016).

Recent and Forthcoming Books:

• Daniel L. Dreisbach, Reading the Bible with the Founding Fathers, (Oxford Univ. Press, Dec. 2016).
• Mark Juergensmeyer, Margo Kitts, & Michael Jerryson (eds.), Violence and the World's Religious Traditions, (Oxford Univ. Press, Dec. 2016).
• Kent Greenawalt, When Free Exercise and Nonestablishment Conflict, (Harvard Univ. Press,  May 2017).
• Christopher Lane, Surge of Piety: Norman Vincent Peale and the Remaking of American Religious Life, (Yale Univ. Press, Nov. 2016).

Sri Lankan Judge, Expert In Law and Religion, Dies at Age 90

Christopher Gregory Weeramantry, a distinguished lawyer who served as a judge on the Supreme Court of Sri Lanka and later as a judge on the International Court of Justice died on January 5, 2017 at the age of 90.  The President of the Muslim Council of Sri Lanka published this tribute which outlines Weeramantry's contributions to law and religion:

Judge Weeramantry was undoubtedly well versed in all the major religions and its laws. He successfully interpreted legal principles with the teachings of the major religions of the world- Islam, Christianity, Hinduism and Buddhism in his deliberations at the International Court of Justice. He has been considered a pioneer in bringing religious jurisprudence to the international court of justice.

His biggest contribution to the Muslim community was his book, ‘Islamic Jurisprudence, An International Perspective’....

Weeramantry was also known for having presided over a 1996 case on the International Court of Justice involving advisory opinions on the Legality of the Threat or Use of Nuclear Weapons in which he issued a dissenting opinion taking the position that the use or threat of use of nuclear weapons is illegal in all circumstances.

Recent Prisoner Free Exercise Cases

In Omran v. Prator, (5th Cir., Dec. 30, 2016), the 5th Circuit Court of Appeals affirmed dismissal of a suit by a Muslim inmate who was denied halal or kosher food.

In Quezada v. Cate, 2016 U.S. Dist. LEXIS 179982 (ED CA, Dec. 28, 2016), a California federal magistrate judge recommended that a House of Yahweh inmate be allowed to move forward only on his equal protection damage claim growing out of the suspension of his access to kosher meals.

In Vance v. Wright, 2017 U.S. Dist. LEXIS 82 (D SC, Jan. 3, 2017), a South Carolina federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 180700, Nov. 29, 2016) and dismissed an inmate's claim that he had been denied religious material.

In Hale v. Vannoy, 2017 U.S. Dist. LEXIS 1866 (MD LA, Jan. 4, 2017), a Louisiana federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 181299, Dec. 16, 2016), and dismissed a claim by an inmate who is a follower of the Nation of Gods and Earths that his request for a religious vegetarian diet was refused.