Thursday, March 22, 2018

Omnibus Spending Bill Does Not Contain Johnson Amendment Repeal

Several non-profit organizations have noted that the 2,232-page version of the omnibus Consolidated Appropriations Act, 2018 (full text) made public yesterday does not contain a repeal of the Johnson Amendment. A press release from the National Council of Nonprofits says in part:
Public trust is essential for charitable nonprofits, houses of worship, and foundations to do their work – and keeping the Johnson Amendment in place allows the public to continue trusting that our organizations can focus on our missions without being torn apart by divisive partisan politics.
A Baptist Joint Committee press release expresses similar sentiments, saying in part:
Those who depend on houses of worship and community nonprofits can breathe a sigh of relief, as concerted efforts to weaken the longstanding law that keeps the 501(c)(3) sector free from partisan campaigning were rebuked yet again. 
Some hoped they could slip a bad policy change into must-pass legislation, but advocates for keeping nonprofits nonpartisan spoke up and prevailed.

Navy Again Rejects Application To Become Secular Humanist Chaplain

Washington Examiner yesterday reported that for a second time the U.S. Navy has rejected the application of Jason Heap to become the Navy's first Secular Humanist chaplain. His application was first rejected in 2014 (see prior related posting), but more recently the Navy chaplain advisory board recommended approval. However 45 House members and 22 Senators wrote the Navy opposing approval.  Senator Richard Wicker, chairman of the Senate Armed Services Committee, applauded the Navy's rejection of Heap's application, saying:
The appointment of an atheist to an undeniably religious position is fundamentally incompatible with atheism’s secularism. This decision preserves the distinct religious role that our chaplains carry out.

Wednesday, March 21, 2018

Scottish Court Convicts For Anti-Semitic YouTube Video

The Jewish Chronicle reports that a Sheriff's Court in Airdrie, Scotland yesterday found 30-year old Mark Meechan guilty of a hate crime for a YouTube posting that went viral. The video featured a dog owned by Meechan's girlfriend.  Meechan had trained the dog to give a Nazi salute when Meechan said "sieg heil" or "gas the Jews."  Meechan, who has apologized, says the video was his attempt to annoy his girl friend:
My girlfriend is always ranting and raving about how cute and adorable her wee dog is, so I thought I would turn him into the least cute thing I could think of, which is a Nazi.
The Sheriff's Court judge however ruled:
The accused knew that the material was offensive and knew why it was offensive. He would have known it was grossly offensive to many Jewish people.
Sentencing in the case is scheduled for April 23.

Recent Prisoner Free Exercise Cases

In Quiero v. Muniz, 2018 U.S. Dist. LEXIS 41981 (MD PA, March 13, 2018), a Pennsylvania federal magistrate judge recommended dismissing a Christian inmate's complaint that while in restricted housing unit for ten days, he was denied access to Bible study and church services and could not meet one-on-one with chapel staff.

In Shields v. Kahn, 2018 U.S. Dist. LEXIS 42194 (SD CA, March 14, 2018), a California federal district court allowed a Muslim inmate to move ahead on his complaint that he was denied participation in Ramadan meals.  He seeks to have the Muslim chaplain rather than other inmates control Islamic services.

In Gonzalez v. Morris, 2018 U.S. Dist. LEXIS 42534 (ND NY, March 15, 2018), a New York federal district court allowed an inmate who is a practitioner of Santeria to move ahead with his complaint that his equal protection rights were infringed when he was denied matches or a lighter to burn offerings. Various other claims were dismissed.

In McCoy v. Aramark Correctional Services, 2018 U.S. Dist. LEXIS 43301 (D KA, March 16, 2018), a Kansas federal district court allowed an Orthodox Jewish inmate to move ahead with claims that the meals served to him as kosher were not prepared and served in conformity with Jewish dietary laws.

In Doyle v. United States, 2018 U.S. Dist. LEXIS 43388 (ED KY, March 16, 2018), a Kentucky federal district court allowed a Muslim inmate to move ahead with his complaint that inmates can pray only in groups of two or three.  Various other claims were dismissed.

Tuesday, March 20, 2018

Transcript Of Supreme Court Arguments In California FACT Act Case Is Now Available

The full transcript of today' oral arguments (see prior posting) in National Institute of Family and Life Advocates v. Becerra is now available. Reporting on the arguments, Politico said in part:
A surprisingly broad array of justices expressed serious concerns that the Reproductive FACT Act intrudes on First Amendment rights, by requiring such centers to include in their ads a state-provided notice in as many as 13 languages offering contact information about abortion services and other options.

Mississippi Governor Signs Ban on Abortions After 15 Weeks; Court Challenge Filed

Mississippi Governor Phil Bryant yesterday signed into law HB 1510, the Gestational Age Act (full text) (bill status history). It prohibits abortions after 15 weeks of gestation except in the case of medical emergency or severe fetal abnormality. There are no exceptions for rape or incest. Violations of the ban are defined as unprofessional conduct by a physician and may lead to suspension or revocation of the person's license to practice medicine. New York Times reports that the only abortion clinic in Mississippi quickly filed a complaint (full text) (press release) in Mississippi federal district court challenging the constitutionality of the law.

UPDATE: On March 20, a Mississippi federal district court granted a temporary restraining order against enforcement of the new law. (AP)

Supreme Court Will Hear Arguments Today In California FACT Act Challenge

The U.S. Supreme Court will hear oral arguments today in National Institute of Family and Life Advocates v. Becerra. In the case, the U.S. 9th Circuit Court of Appeals upheld  California's FACT Act which requires licensed pregnancy counseling clinics to disseminate a notice on the existence of publicly-funded family planning services, including contraception and abortion.  Unlicensed clinics must disseminate a notice that they and their personnel are unlicensed. (See prior posting.) The Supreme Court granted certiorari only on the free speech issues in the case, excluding review of the free exercise question. (See prior posting.)  SCOTUSblog's case page has links to all the briefs filed in the case, as well as to further analysis.

Indian State Moves To Grant Minority Religion Status To Lingayats

In the Indian state of Karnataka, the cabinet (on the recommendation of the State Minorities Commission)  has voted to grant the status of a separate religious minority to Lingayats, instead of treating them as a Hindu sect.  More controversially, the cabinet also voted to include Veerashaivas as part of the same community.  Lingayats, and Veerashaivas constitute 17% of the state's population.  India West and The Mirror report that the move is seen as an attempt by the ruling Congress party to attract the sect's votes away from the Hindu nationalist Bharatiya Janata Party in the state assembly elections that will be held in April and May. The cabinet recommendation now goes to the central government for approval under §2(c) of the Central Minority Commission Act.

Suit Alleges Religious Discrimination In Flag Mix-Up

ACLU of Kansas announced yesterday that it has filed a religious and ethnic discrimination lawsuit on behalf of an employee of Spirit AeroSystems against a recreational organization open to Spirit employees.  The organization owns a recreational lake in Wichita, Kansas that can be rented by the organization's members. The complaint (full text) in Zanial v. Spirit Boeing Employees' Association, (D KA, filed 3/19/2018) alleges:
11. On September 2, 2017, Mr. Zanial rented space at the SBEA recreation lake to host a party celebrating the end of Ramadan. The party was attended by approximately 45 guests, the majority of whom were of Malaysian Indian ancestry. Several of Plaintiff’s female guests, including his wife, were wearing hijabs. 
12. Because the party took place shortly after the 60th Anniversary of Malaysian Independence Day, Mr. Zanial’s guest, Nik Azri brought a Malaysian flag to the party. Mr. Zanial and his guests took turns posing with the flag.
This led to a complaint being filed:
Following the party, SBEA reported Mr. Zanial to the Spirit Aerosystems (“Spirit”) security team based on a concern that Mr. Zanial was affiliated with radical Islamic terrorism and alleged that he had used the SBEA lake to hold an ISIS meeting. SBEA alleged that Mr. Zanial and his guests had an American flag that had been “desecrated by ISIS insignia” and were wearing “Muslim garb.” SBEA restricted Mr. Zanial’s membership so he could no longer rent property to host events at the lake.

Monday, March 19, 2018

Proposed Knesset Bill Would Extend Israeli Rabbinical Court Jurisdiction Extraterritorially

JTA reports on an interesting family law bill that passed the first of three readings in Israel's Knesset earlier this month.  Jewish religious law, enforced in personal status matters in Israel by the country's Rabbinical courts, requires that a husband give his wife a "get" (bill of divorce)  in order for a divorce to be valid.  Under current law, Israel's Rabbinical courts can impose penalties, including fines and jail, to pressure an Israeli husband to give  his wife a "get." The proposed new legislation would extend jurisdiction of Israeli Rabbinical courts extraterritorially to any Jewish man who is unjustly withholding a "get."  Israeli courts could then fine or imprison the husband if he travels to Israel.  According to Pinchas Goldschmidt, president of the Conference of European Rabbis:
Today among Jews in Europe, everyone has relatives in Israel, or they’re thinking they might be moving there or forced to move there.  So this threat of a problem may make a lot of reluctant husbands free their wives.

Recent Articles of Interest

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

Sunday, March 18, 2018

Recent Prisoner Free Exercise Cases

In Ralston v. Cannon, (10th Cir., March 13, 2018), the 10th Circuit held it could not review in an interlocutory appeal on qualified immunity the district court's conclusion that there was sufficient evidence to allow a reasonable juror to find that defendant intentionally interfered with plaintiff's right to free exercise by denying his kosher diet request.

In Roberts v. Perry, 2018 U.S. Dist. LEXIS 39596 (WD NC, March 9, 2018), a North Carolina federal district court dismissed with leave to amend an inmate's complaint that he was prevented from enrolling in the Messianic Faith Group to begin a weekly educational class, and that his mail (including religious correspondence and books from unauthorized sources) was stopped and another book was seized as contraband.

In Ward v. Rice, 2018 U.S. Dist. LEXIS 39884 (WD AR, March 12, 2018), an Arkansas federal district court allowed a Muslim inmate to move ahead with his complaint that prison policy bars the use of prayer rugs without alternatives being provided.  The court dismissed claims regarding the inmate's food tray and temporary denial of his Quran.

In Crowe v. Marquis, 2018 U.S. Dist. LEXIS 40062 (ND OH, March 12, 2018), an Ohio federal district court dismissed a Native American inmate's complaint that his prayer pipe was lost or stolen and that he was misinformed that prison policy would allow his family to send him tobacco.

In Venkataram v. Bureau of Prisons, 2018 U.S. Dist. LEXIS 39504 (SD FL, March 9, 2018), a Florida federal district court adopted in part a magistrate's recommendation (2018 U.S. Dist. LEXIS 40075, Jan. 16, 2018) and dismissed an inmate's attempt to obtain a vegetarian diet that complies with Hindu religious requirements.

In Ali v. Eckstein, 2018 U.S. Dist. LEXIS 40878 (ED WI, March 13, 2018), a Wisconsin federal district court permitted a Muslim inmate to move ahead with his claim for nominal and punitive damages against one defendant growing out of the omission of plaintiff from the list to participate in the Ramadan meal bag program.

In Jones v. Finco, 2018 U.S. Dist. LEXIS 41191 (WD MI, March 13, 2018), a Michigan federal district court, adopting a magistrate's recommendation, dismissed a Muslim inmate's complaint about the food served to him during Ramadan.

In Mares v. LePage, 2018 U.S. Dist. LEXIS 41907 (D CO, March 13, 2018), a Colorado federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 140796, Aug. 31, 2017) and dismissed an inmate's complaint regarding impediments to changing his religious designation to Judaism, receiving kosher meals, a personal Torah and a visiting rabbi.

In Sangraal v. Godinez, 2018 U.S. Dist. LEXIS 41952 (SD IL, March 13, 2018), an Illinois federal district court awarded $1 nominal damages to a former inmate who followed pagan beliefs who challenged prisons' banning the pentacle, limiting the use of tarot cards, requiring additional screening of pagan literature, and subjecting him to religious messages in the chapel.

Saturday, March 17, 2018

NYPD Sued Over Mugshot Policy For Muslim Women

AP reported yesterday on a lawsuit filed in federal district court in New York against the New York Police Department by two Muslim women who were forced to remove their hijabs to pose for mugshots.  While the NYPD says that its policy allows persons wearing religious head coverings to be taken to  a separate more private facility before removing the head covering to be photographed, apparently that policy was not followed in the case of the plaintiffs in this lawsuit. The women along with the advocacy group Turning Point for Women and Families brought the lawsuit as a class action. [Thanks to Tom Rutledge for the lead.]

Friday, March 16, 2018

Judge Suspended, In Part For Refusal To Conduct Same-Sex Weddings

In In re Day, (OR Sup. Ct., March 15, 2018), the Oregon Supreme Court in a 91-page opinion suspended state circuit court judge Vance D. Day from his judicial office for three years without pay. The state's Commission on Judicial Fitness and Disability had recommended the harsher penalty of removal from office. (Commission report).  A number of unrelated charges were involved; the court concluded that six of the counts had been proven.  One of those was described as follows by the court in its press release on the case:
Count 12 concerned a change in respondent's chambers relating to marriage requests that he received after issuance of a federal court ruling, in May 2014, that had invalidated Oregon's constitutional ban on same-sex marriage. Before that ruling, respondent had made himself available to solemnize marriages. After that ruling, he told his staff that, upon receiving any marriage request, they should check for any personal gender information available in the court's case register system, to try to determine whether the request involved a same-sex couple. If so, they should tell the couple that he was not available on the requested date or otherwise notify him so that he could decide how to proceed. If the request were from an opposite-sex couple, however, then they should schedule the wedding date.  Respondent's judicial assistant checked the system one time and determined that a requesting couple might be a same-sex couple, but respondent had an actual scheduling conflict, so she truthfully told the couple that he was not available.  Several weeks after that, respondent stopped solemnizing all marriages. The Court concluded that respondent's conduct had been willful and had violated Rule 3.3(B) (prohibiting manifestation of bias or prejudice in the performance of judicial duties) and related constitutional provisions. The Court did not address a number of constitutional challenges that respondent had raised as affirmative defenses to Count 12. It explained that, in light of the other, notably serious misconduct that the commission had proved by clear and convincing evidence, the misconduct at issue under Count 12 would not affect its consideration of the appropriate sanction, regardless of whether those constitutional challenges were meritorious or not.
Progressive Secular Humanist blog reports on the decision.

No Bivens Claim For Interference With Religious Exercise In Puerto Rican Forest

In Twum-Baah v. U.S. Department of Agriculture, (D PR, March 12, 2018), a Puerto Rico federal district court dismissed Federal Tort Claims Act, free exercise and racial/ ethnic discrimination claims by a representative of the Waroyal Ministry who took his congregation to the El Yunque National Forest as part of their worship. He also started a tour company that offered tours in El Yunque. Federal officials assert that plaintiff needs a special use authorization for his activities. The court said in part:
A liberal reading of plaintiff’s amended complaint suggests Twum-Baah claims officers Verdejo, Ortiz, and Henderon violated his First Amendment rights to freely exercise his religion and to peaceably assemble with the Excursionist Association for El Yunque. ... Nonetheless, the Court’s understanding of Bivens and subsequent decisions by the Supreme Court compels it to find Bivens claims are not available for violations of the First Amendment’s Free Exercise clause.

Suit Over News Photo of Arabic-Speaking School Child May Continue

In Mahdy v. Mason City School District, (SD OH, March 15, 2018), an Ohio federal district court refused to dismiss equal protection and false-light claims growing out of the use of a photo of a 5-year old (identified as J.M.) to illustrate a newspaper story criticizing a rise in the number of Arabic-speaking students in the Mason City, Ohio schools.  The student was the daughter of an Egyptian-born urologist at the University of Cincinnati. The article reported that most of the Arabic-speaking students were from Saudi Arabia on temporary visas to be treated at Cincinnati Children’s Hospital Medical Center, and that their enrollment placed strains on the school system's budget. The court describes plaintiff's claims:
The Complaint alleges that neither Dr. Mahdy nor his wife gave permission to anyone to photograph J.M., to disclose her identity to the public, or to falsely associate her with the Children’s Hospital Destination Excellence Program.... The Complaint alleges that J.M. had to be removed from MECC due to the "wave of Islamophobia that is currently sweeping across our country," and because her family was "so distressed over the prejudice and discriminatory treatment expressed against Arabic-speaking students."

Ohio's Law Banning Abortion Because of Down's Syndrome Is Enjoined

In Preterm-Cleveland v. Himes, (SD OH, March 14, 2018), an Ohio federal district court granted a preliminary injunction against enforcement of Ohio's recently enacted ban on a physician performing an abortion if the woman's decision is based in whole or part on a pre-natal indication of Down's syndrome.The court said in part:
The State argues that Roe and Casey do not apply for two reasons. First, the State argues the “Supreme Court of the United States has never recognized a right to abort an unborn child on the basis of a disability.” ... The State suggests that Roe and Casey only apply to women who accidentally become pregnant.... The State argues that women only have the right to choose whether to have a child, not the right to decide whether to have a particular child....
This argument is not well-taken. The interest protected by the Due Process Clause is a woman’s right to choose to terminate her pregnancy pre-viability, and that right is categorical.
Reacting to the decision, Ohio Attorney General Mike DeWine said:
 I strongly disagree with the district court's ruling that there is a categorical right to abortion that prevents even any consideration of Ohio's profound interests in combatting discrimination against a class of human beings based upon disability. We will be appealing.
Jurist reports on the decision.