Head of Jewish Public Policy Organization Is Stepping Down

The Forward reports today that Rabbi Steve Gutow is stepping down as head of the Jewish Council for Public Affairs where he has served for ten years.  Gutow and JCPA have been a leading voice for the American Jewish community on domestic and international public policy issues, including church-state concerns.  JCPA is the umbrella organization for 125 local Jewish Community Relations Councils and 14 national Jewish organizations. Gutow's resignation takes effect Dec. 31.  He will continue to be active on interfaith, environmental and anti-poverty issues, but will give up direction of the organization's day-to-day operations sooner.

Cannabis Advocate Will Be First To Test Indiana's RFRA

Indiana's controversial Religious Freedom Restoration Act goes into effect on July 1.  Bill Levin, a life-long advocate of legalizing marijuana, says he will be the first to test the law by holding the initial service of his newly created First Church of Cannabis that day.  WTHR News reported yesterday that Levin is looking for space to rent for holding the service, which he expects will attract 1000 people. Levin says: "We'll say a short prayer and go 'poof',"

Court Orders Parishioners To End 10+ Year Vigil Protesting Church Closure

A Massachusetts trial court yesterday granted the Boston Catholic Archdiocese an injunction to end the ten and one-half year vigil that parishioners of the now-closed St. Frances X. Cabrini Church in Scituate (MA) have been maintaining inside the church.  On the website of the Friends organization supporting the vigil, parishioners say:

The members of St. Frances believe that we have been unjustly shuttered via the flawed process of reconfiguration introduced by the Archdiocese of Boston and that this misguided decision was based solely on the value of our parish property - 30.3 acres of prime coastal real estate.

In Roman Catholic Archbishop of Boston v. Rogers, (MA Super. Ct., May 14, 2015), the court held that the former parishioners "are unlawfully and intentionally committing a trespass by the continuation of the protest vigil on the premises of the church."  The court rejected defendants' arguments that it lacks jurisdiction over the suit because the claims require the interpretation of ecclesiastical principles. saying:

defendants' argument conflates the issues of whether the parish may be closed (an eccleisastical question) with whether an owner in control of property may determine when individuals may be on property (a civil law question).  Because the latter may be decided by neutral principles of property law, this court may proceed to hear the facts and decide whether defendants' vigil is a trespass and whether an injunction should issue.

The court also rejected parishioners' defense of laches, and their $37,000 counterclaim for amount spent on upkeep and maintenance during the vigil. AP reports on the decision.  The Quincy Patriot Ledger reports that defendants plan an appeal and plan to ask the trial court to suspend the injunction pending appeal.  Otherwise it will take effect on May 29.

Bilateral Commission of Holy See and State of Palestine Draft Comprehensive Agreement

In 2000, the Vatican reached a preliminary agreement (full text) with the Palestinian Liberation Organization on freedom of religion and the status of Christian holy places.  Yesterday the Bilateral Commission of the Holy See and the State of Palestine issued a joint statement (full text) saying that the text of a Comprehensive Agreement has now been concluded and it will be submitted to the respective authorities for approval before a date for signing in the near future is set.  While the general news media are emphasizing that the agreement's references to the "state of Palestine" are seen as lending weight to Palestinian efforts for recognition as a sovereign nation (New York Times),  different emphasis was displayed in coverage by Catholic News Agency which says that the Vatican has been referring to the "State of Palestine" at least since January 2013.  CNA sets out more detailed information on the substance of the Comprehensive Agreement:

The Vatican-Palestinian agreement recognizes freedom of religion in Palestine, and outlines the rights and obligations of the Church, its agencies, and its personnel in the territory....

The treaty, Msgr. Camilleri [leader of the Vatican delegation to the bilateral commission] said, “backs a resolution of the Palestinian issue and of the conflict between Israelis and Palestinians within the Two-State Solution and the resolution of the international community.”

But the bulk of the agreement regards freedom of religion and conscience, as well as the Church's freedom of action, its staff and jurisdiction, legal status, places of worship, social and charitable activity, and use of communications media.

Msgr. Camilleri added that a final chapter of the agreement regards issues of a fiscal and proprietary nature.

Atheists Can Now Perform Marriages In Minnesota County; Challenge Is Moot

In Atheists for Human Rights v. County of Washington, Minnesota, (D MN, May 13, 2015), a Minnesota federal district court dismissed as moot a constitutional challenge to Washington County's refusal to accept marriage celebrant credentials issued by Atheists for Human Rights to Rodney Michael Rogers because AFHR did not profess to be a religion. The court said in part:

Washington County has clearly and unequivocally changed its allegedly wrongful practice. The County has not gone through a formal amending process because there was no formal written policy in place. Rather, Washington County’s prior practice was based on the advice of Washington County’s legal counsel. The County’s legal counsel has clearly and definitely changed that advice.

According to a report on the decision by the Minneapolis Star Tribune:

The county’s change in policy came four days after the Star Tribune published an article about the suit and reported that Hennepin, Ramsey and Anoka counties certified atheists to conduct weddings. Meanwhile, the county had registered people belonging to groups with tongue-in-cheek names, including, “The Church of the Latter Day Dude” and the “Church of the Flying Spaghetti Monster.”

FLDS Church and Others Fined $1.96 Million In Wage and Hour Case

The Salt Lake Tribune reported yesterday that the U.S. Department of Labor's Wage and Hour Division has fined the Fundamentalist Church of Jesus Christ of Latter-Day Saints, its operating head Lyle Jeffs, the affiliated Paragon Contractors Corp. and its officers Brian Jessop and Dale Barlow for violating the wage and hour laws in using FLDS school children and their parents to work a pecan ranch harvest. The church received the amounts paid to Paragon.  (See prior related posting.) The Department of Labor imposed a $1.96 million in civil penalties jointly against the respondents.

Challenge To Refusal of "8THEIST" Vanity Plate May Proceed

In Morgan v. Martinez, (D NJ, May 12, 2015), an atheist seeking to express her beliefs sued the head of the New Jersey's Motor Vehicle Commission challenging provisions in state regulations barring issuance of personalized license plates with letters or numbers"that may carry connotations offensive to good taste and decency."  Until plaintiff Shannon Morgan filed suit, the VMC refused to issue her a plate with the characters "8THEIST". The court held that Morgan has standing to bring the suit and refused to dismiss on the merits, concluding that she Morgan adequately stated claims of facial overbreadth, vagueness that encourages arbitrary and discriminatory enforcement, and prior restraint.

Employers Pressing For Same-Sex Employees To Marry In Order To Retain Partner Benefits

The Wall Street Journal reports today that as same-sex marriage becomes legal in more states, increasingly employers who had offered health benefits to domestic partners are telling same-sex couples that they must marry in order to retain their partner benefits. However some say that this may pose a problem for same-sex couples.  Because marriage licenses are public, this may end up "outing" an employee who has not publicly disclosed his or her sexual orientation.  Also, because there are no anti-discrimination protections for the LGBT community in the majority of states, "outing" could lead to discriminatory actions against the employee or the partner. Employers say they are trying to treat everyone equally. A few large companies have taken an opposite approach and are offering domestic partner benefits to both same-sex and opposite-sex couples.

President Obama Speaks Out On Poverty At Catholic-Evangelical Panel Discussion

As reported by Religion News Service, President Obama yesterday engaged in a fascinating 75-minute panel discussion at Georgetown University's Catholic-Evangelical Leadership Summit on Overcoming Poverty.  Labeled "Conversation on Poverty" (full text), the panel, moderated by journalist E.J.Dionne, also included Harvard professor Robert Putnam and American Enterprise Institute President Arthur Brooks. The President said in part:

I think it would be powerful for our faith-based organizations to speak out on this in a more forceful fashion. 

This may sound self-interested because there have been -- these are areas where I agree with the evangelical community and faith-based groups, and then there are issues where we have had disagreements around reproductive issues, or same-sex marriage, or what have you.  And so maybe it appears advantageous for me to want to focus on these issues of poverty, and not as much on these other issues....

There is great caring and great concern, but when it comes to what are you really going to the mat for, what’s the defining issue, when you're talking in your congregations, what’s the thing that is really going to capture the essence of who we are as Christians, or as Catholics, or what have you, that this is oftentimes viewed as a “nice to have” relative to an issue like abortion.  That's not across the board, but there sometimes has been that view, and certainly that's how it’s perceived in our political circles....

And there’s noise out there, and there’s arguments, and there’s contention.  And so people withdraw and they restrict themselves to, what can I do in my church, or what can I do in my community?  And that's important.  But our faith-based groups I think have the capacity to frame this -- and nobody has shown that better than Pope Francis, who I think has been transformative just through the sincerity and insistence that he’s had that this is vital to who we are.  This is vital to following what Jesus Christ, our Savior, talked about.

First Preliminary Settlement Reached In ERISA "Church Plan" Case

A series of cases filed around the country has challenged the treatment of Catholic hospital system pension plans as "church plans" exempt from ERISA. In Overall v. Ascension, a Michigan federal district court ruled in favor of the hospitals finding that the plans did not need to have been "established by" a church.  It is enough they were created by a church-affiliated organization. (See prior posting.)  Plaintiffs appealed the decision, and the U.S. 6th Circuit Court of Appeals appointed a mediator to try to settle the case. BenefitsPro reported yesterday that now, after 6 months of negotiations, the parties have agreed to a settlement that will give Ascension plan participants "ERISA-like" protections for the next seven and one-half years, but the plans will retain their "church plan" status. Plaintiffs in the case claimed that Ascension's plans were underfunded by $440 million.  The preliminary settlement would require Ascension to contribute an additional $8 million in funding. The proposed settlement still requires court approval.

Some State Legislators Plan Strategies To Counter Any SCOTUS Marriage Equality Ruling

Religion News Service reported yesterday that as the Supreme Court's decision on same-sex marriage nears, legislation has been introduced in several states to block the effect of a ruling in favor of marriage equality. For example, a Texas bill would prohibit the use of public funds to license or recognize same-sex marriages.  A proposed Louisiana law would permit employers to deny same-sex spouses marriage benefits and would give state contractors the right to refuse to hire gays and lesbians who marry.

Convoluted Rabbinical Court Politics In Israel

Jerusalem Post reported yesterday on the complex and convoluted politics surrounding decisions on the appointment of Rabbinical Court judges under Israel's newly formed coalition government. At the center of the controversy is the question of how Rabbinical Courts, that are responsible for various personal status matters, will treat women seeking divorces.  That will be affected by who sits on the Appointments Committee for Rabbinical Judges, and the judges they select.

Bayit Yehudi, a religious Zionist party that is one of the coalition partners, does not want to see a change in the current composition. In the last government it succeeded in getting 4 of the 11 seats on the Appointments Committee for women. However, United Torah Judaism, another coalition partner, wants to expand the Appointments Committee in order to water down the influence of the women members, and will introduce legislation to do so.  Bayit Yehudi, in its coalition agreement with Benjamin Netanyahu's Likud Party has obtained the right to oppose UTJ's bill-- which likely will assure it will not pass the Knesset. Currently nearly 30% of the positions on Rabbinical Courts are vacant.  A further complication is that the Chairman of the Appointments Committee can block judicial appointments by refusing to convene the Committee.  Divorce rights advocates are criticizing Bayit Yehudi for giving up the Chairmanship to Likud, which will more likely side with the haredi (ultra-Orthodox) parties on appointments.

New Report Finds Percentage of Christians In U.S. Declining; Unaffiliateds Increase

The Pew Research Center today released a new report titled America's Changing Religious Landscape. The report finds that Christians have declined from 78.4% to 70.8% of the population between 2007 and 2014.  In the same period, the unaffiliated have increased from 16.1% to 22.8%. Non-Christian faiths are up from 4.7% to 5.9% of the population.

Ministerial Exception Bars Discrimination Claims Against Salvation Army

In Rogers v. Salvation Army, (ED MI, May 11, 2015), a Michigan federal district court held that the ministerial exception doctrine bars race and age discrimination claims against The Salvation Army ("TSA") by plaintiff who, when terminated, was employed as a Spiritual Counselor by TSA. The court also rejected plaintiff's discrimination and harassment claims on the merits.

Alabama Governor Signs Student Religious Liberties Act

Last Thursday (coinciding with the National Day of Prayer), Alabama Governor Robert Bentley signed into law the Alabama Student Religious Liberties Act of 2015 (full text).  It prohibits discrimination against students or parents on the basis of religious viewpoint or religious expression.  It provides in part:

Students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions. Homework and classroom assignments shall be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns....

It also provides that:

Students in public schools may pray or engage in religious activities or religious expression before, during, and after the school day in the same manner and to the same extent that students may engage in nonreligious activities or expression.

AL.com reports on the enactment of the new law. [Thanks to Blog From the Capital for the lead.]

Jeb Bush Appeals To Conservative Christians At Liberty University

On Saturday, likely Presidential contender Jeb Bush delivered the commencement address at Liberty University. (Video of full remarks). As reported by AP, Bush, a convert to Catholicism, used the speech to make a vigorous defense of Christianity and of religious freedom to religious conservatives, saying in part: "How strange, in our own time, to hear Christianity spoken of as some sort of backward and oppressive force."

Recent Articles of Interest

From SSRN:

• Meital Pinto, The Right to Culture, the Right to Dispute and the Right to Exclude: A New Perspective on Minorities within Minorities, (Ratio Juris, 2015 Forthcoming).
• Ira C. Lupu, Moving Targets: Religious Freedom, Hobby Lobby, and the Future of LGBT Rights, (Alabama Civil Rights & Civil Liberties Law Review (Vol. 7, Issue #1, Fall, 2015)).
• Brandon L. Paradise, How Critical Race Theory Marginalizes the African-American Christian Tradition, (Michigan Journal of Race & Law, Vol. 20, No. 117, Fall 2014).
• Adam Lamparello, A Fourth Amendment Framework for the Free Exercise Clause, (May 5, 2015).
• Michele Goodwin & Allison M. Whelan, Law, Bioethics, and Biotechnology, (International Encyclopedia of the Social & Behavioral Sciences, 2nd ed., Vol. 13, James D. Wright, Editor, 2015, Forthcoming).
• William C. Bradford, Trahison Des Professeurs: The Critical Law of Armed Conflict Academy as an Islamist Fifth Column, (3 National Security Law Journal __ (2015 Forthcoming)).
• Gwendolyn Gordon, Culture in Corporate Law, or: A Black Corporation, a Christian Corporation, and a Maori Corporation Walk into a Bar... , (May 7, 2015).
• Deborah A. Widiss, Non-Marital Families and (Or After?) Marriage Equality, (Florida State University Law Review, Vol. 42, 2015).
• Iginio Gagliardone, Mapping and Analysing Hate Speech Online, (May 1, 2014).

From SSRN (Non- U.S. Law):

• Shabnam Haji, Public Involvement and Constitutional Theocracy in Iran,(September 11, 2014).
• Riaz Tejani, 'A Logic of Camps': French Antiracism as Competitive Nationalism, (Political and Legal Anthropology Review 38:1, 2015).
• Haider Ala Hamoudi, The Political Codification of Islamic Law: A Closer Look at the Draft Shi’I Personal Status Code of Iraq, (Arizona Journal of International and Comparative Law, Vol. 32, No. 2, 2015).

From SmartCILP and elsewhere:

• Mark W. Cordes, Schools, Worship, and the First Amendment, 48 Suffolk University Law Review 9-65 (2015).
• Hon. Kermit V. Lipez, Is There a Place for Religion in Judicial Decision-Making?, 31 Touro Law Review 133-148 (2014).
• ABA Business Law Section, Adoption of Changes to the Model Nonprofit Corporation Act-- Miscellaneous and Technical Amendments, 70 Business Lawyer 467-487 (Spring 2015).

Recent Prisoner Fre Exercise Casess

In Ajala v. West, 2015 U.S. Dist. LEXIS 57944 (WD WI, May 4, 2015), a Wisconsin federal district court held that the state had not shown as a matter of law that banning a Muslim inmate from wearing a kufi outside his cell and group worship is the least restrictive means of furthering a compelling government interest. It ordered the case to trial on injunctive and declaratory relief, but found qualified immunity as to damages.

In Cauthen v. Rivera, 2015 U.S. Dist. LEXIS 58244 (ED CA, May 4, 2015), a California federal magistrate judge recommended dismissing a complaint by a Rastafarian inmate about a body cavity search.  Plaintiff objected on religious grounds that it would be indecent to expose his naked body to people that don't "look like" him, such as females or homosexuals.

In Mallory v. Stanitis, 2015 Pa. Commw. Unpub. LEXIS 312 (PA Commnw. Ct., May 5, 2015), a 3-judge panel of the Pennsylvania Commonwealth Court affirmed a trial court's dismissal of a Muslim inmate's retaliation and free exercise claims growing out of plaintiff's insistence on wearing his pants legs rolled up to the middle of his shins for religious reasons.

In Pabon v. Cheshire County Department of Corrections, 2015 U.S. Dist. LEXIS 58717 (D NH, May 1, 2015), a New Hampshire federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 183796, April 17, 2014), and allowed an inmate to proceed with his constitutional, but not his RLUIPA, claims for damages based on allegations that he was denied access to religious items and prevented from practicing his religion.

In Rinaldi v. United States, 2015 U.S. Dist. LEXIS 59579 (MD PA, May 7, 2015), a Pennsylvania federal district court dismissed a Muslim inmate's complaint that he was denied the opportunity to engage in congregate Friday Jumuah prayers with other Muslims. While issues of fact remained as to plaintiff's claim under RFRA, he failed to allege personal involvement of any of the defendants.

In Fox v. Heyns, 2015 U.S. Dist. LEXIS 60247 (WD MI, May 7, 2015), a Michigan federal magistrate judge recommended dismissing as moot, as well as for failure to exhaust, complaints by two inmates seeking recognition of the Christian Identity Faith and its holy days as well as of full-body immersion.

In Wilson-El v. Mutayoba, 2015 U.S. Dist. LEXIS 60688 (SD IL, May 8, 2015), an Illinois federal district court upheld $10,100 punitive damage verdict a jury had awarded against a prison chaplain who had denied a Moorish Science Temple member a vegan diet.

In Oliver v. Adams, 2015 U.S. Dist. LEXIS 60859 (ED CA, May 7, 2015), a California federal magistrate judge recommended allowing a Shetaut Neter inmate to move ahead with his First Amendment, RLUIPA and equal protection claims asserting favoritism to conventional Western world religions and denials of a religious diet, prayer rug, religious materials, worship services, and other programming. UPDATE: The court adopted the magistrate's recommendations at 2015 U.S. Dist. LEXIS 126886 (Sept. 21, 2015).

Satanic Temple Member Files Suit Challenging Missouri's Abortion Restrictions Under State's RFRA

On Friday, after submitting a demand letter (full text), a member of the Satanic Temple filed a lawsuit in state court in Missouri challenging as a violation of Missouri's Religious Freedom Restoration Act the state's waiting period and informed consent requirements imposed before a woman may obtain an abortion. (See prior related posting.)  The complaint (full text) in Doe v. Nixon, (MO Cir. Ct., filed 5/8/2015), alleges that plaintiff has deeply held religious beliefs that her body is inviolable and subject to her will alone and that she alone decides whether to remove a non-viable fetus.  It contends that conditioning her decision to have an abortion on presenting her written materials prepared by the state that outline gestational development and the possibility of the abortion causing pain to the unborn child, the requirement that she view an ultrasound, and the statutory 72 and 24-hour waiting periods contitute restrictions on her free exercise of religion because they are contrary to her beliefs and unduly restrictive of her freedom of choice. Plaintiff also filed a Memorandum of Law in Support of a Temporary Restraining Order (full text).   Orlando Weekly reports on the lawsuit.

Egypt Holds 4 Coptic High Schoolers On Blasphemy Charges

Fox News reported yesterday on four 15 to 16 year old Coptic Christian boys being held by authorities in Egypt on blasphemy charges, apparently because of a 32-second video clip they made mocking an ISIS beheading. The video was made on their teacher's cell phone while the boys were on a school-related religious excursion. In early April, Muslim residents of the boys' village of Al-Nasriyah filed a complaint and their teacher was arrested. Negotiations between Christians and Muslims in the community led to the Copts banning the teacher from the community. Meanwhile marches and attacks on homes and businesses by local Muslims forced parents of the four boys to turn them over to authorities. (A fifth boy escaped the village.) Last week a judge refused to release the four boys so they could take their year-end exams, holding them for two more weeks while the investigation continues.