Friday, May 18, 2018


There will be sporadic or no postings on Religion Clause Blog between May 19 and June 4.  Look for Religion Clause to return with regular postings beginning June 5.

Australian Appeals Court Upholds Refusal To Allow Testimony From Plaintiff Wearing Niqab

In the Australian state of New South Wales, the Court of Appeal in Elzahed v. State of New South Wales, (NWCA, May 18, 2018), rejected a Muslim woman's contention that she should have been permitted to testify in her civil suit against police officers while her face was fully covered by a niqab.  Plaintiff was suing for assault allegedly occurring during the execution of a search warrant. The court said in part:
There was no error in the primary judge’s ruling that the appellant could not give evidence with her face covered by a niqab. The appellant was a party in the case, not merely a witness. The appellant’s evidence was strongly contentious. The resolution of the case would require the primary judge to make findings about whether to accept the appellant’s evidence or the conflicting evidence of the NSW police officers. Viewing the appellant’s face while she was giving her evidence was capable of affecting the resolution of that conflict. The primary judge did not err in concluding that fairness to all parties required her to reject the appellant’s application.
The appeals court pointed out that plaintiff had not asked the trial judge for alternative arrangements such as testifying from behind a screen so that her face would be visible only to to some of the people in the courtroom. Reporting on the decision, Australian Associated Press  adds this background information:
Moutia Elzahed, who's married to jailed Islamic State extremist Hamdi Alqudsi, tried unsuccessfully to sue the state and federal governments over claims of police violence during a 2014 raid on their Sydney home....
Judge Audrey Balla in mid-2017 ordered Elzahed pay $250,000 in costs to the commonwealth and state governments responsible for the federal and state police officers involved in the 2014 raid.
In early May, Elzahed became the first person in NSW to be found guilty of refusing to stand for a judge in court after insisting she only stood for Allah when she appeared before Judge Balla.

England's Chief Coroner Gives Guidance On Rapid Release of Bodies For Religious Reasons

As previously reported, in England last month a court held unlawful the policy of a London Coroner to categorically refuse to give priority to releasing a body for burial when requested to do so for religious reasons. Such requests are often made by Jewish and Muslim families whose beliefs call for burial quickly after death.  (See prior posting.)  Yesterday, the Chief Coroner of England and Wales issued Guidance No. 28 (full text), designed to give practical guidance to local coroners when expedited release is requested for religious or other reasons.  The Guidance reads in part:
14. The judgment in the AYBS Case reflects two important legal considerations: (i) that a coroner should be open to representations that a particular case should be treated as a matter of urgency (whether for religious or other reasons); and (ii) that proper respect should be given to representations based on religious belief.
15. However, the decision of the Court does not require a coroner to give automatic priority to deaths from particular religious communities, nor does it require coroners to drop other important work to deal with such deaths. The Court also recognised that other deaths may require urgent handling for non-religious reasons.
16. There is no obligation for coroners to adopt formal written policies for dealing with requests for expedition or for dealing with deaths from faith communities.... However, any policy or practices adopted by coroners must be sufficiently flexible to allow them to give due consideration to expediting decisions where there is good reason to do so. They should seek to strike a fair balance between the interests of those with a well-founded request for expedition (including on religious grounds) and other families who may be affected.
Jewish Chronicle reports on the new Guidance document.

11th Circuit Hears Arguments In Challenge To Cross In City Park

On Wednesday, the U.S. 11th Circuit Court of Appeals heard oral arguments in  Kondrat'yev v. City of Pensacola, Florida.  (Audio of full oral arguments).  In the case, a reluctant Florida federal district court judge held that a 34-foot concrete Latin Cross that has stood in a city park for decades violates the Establishment Clause. (See prior posting.)  Pensacola News Journal reports on the oral arguments.

Catholic Social Services Sues Philadelphia Over End To Foster Care Referrals

A suit was filed in a Pennsylvania federal district court this week by Philadelphia Catholic Social Services and two of its clients challenging action taken by the city of Philadelphia to stop foster care referrals to the agency.  The city took the action because of CSS's policy against placing foster children with same-sex couples.  The complaint (full text) in Fulton v. City of Philadelphia, (ED PA, filed 5/16/2018), alleges in part:
Catholic Social Services remains willing and able to continue its ministry serving children in Philadelphia. It wants to help alleviate the foster care crisis in Philadelphia, and it has not and will not prevent any qualified family from becoming a foster parent, be it through Catholic Social Services or a referral to another agency. But because of the City’s actions, Catholic Social Services is unable to place foster children with families. Its 100-year-old ministry to at-risk children is in jeopardy.
The complaint alleges violation of Pennsylvania's Religious Freedom Protection Act, the 1st and 14th Amendments. Pennsylvania constitutional provisions, the Philadelphia city charter and breach of contract. Becket Fund issued a press release announcing the filing of the lawsuit.

Thursday, May 17, 2018

President's Ramadan Message

On May 15, as Ramadan was about to begin, President Trump issued a Presidential Message (full text) sending greetings and best wishes to Muslims in the U.S. and around the world.  He said in part:
Ramadan reminds us of the richness Muslims add to the religious tapestry of American life.  In the United States, we are all blessed to live under a Constitution that fosters religious liberty and respects religious practice.  Our Constitution ensures Muslims can observe Ramadan in accordance with the dictates of conscience and unimpeded by government.  By doing so, the Constitution also furnishes varied opportunities for all Americans to deepen their understanding of the human soul.
As so many people unite to celebrate Ramadan, Melania and I join in the hope for a blessed month.  Ramadan Mubarak.

Injunction Entered Against Obama-Era Contraceptive Mandate

The Trump administration continues to concede that the Obama Administration's version of the contraceptive coverage mandate as applied to religious non-profits violates the Religious Freedom Restoration Act.  This week, in Southern Nazarene University v. Azar, (WD OK, My 15, 2018), an Oklahoma federal district court, without objection from defendants, enjoined enforcement of the mandate against four Christian universities.  The College Fix reports on the decision.

Suit Filed By Muslim Woman Forced To Remove Hijab For Courthouse Security Inspection

A lawsuit was filed this week in an Oklahoma federal district court challenging the manner in which courthouse security guards dealt with a Muslim woman's objections to removing her hijab after she set off a metal detector.  The complaint (full text) in Elqutt v. Regalado, (ND OK, filed 5/15/2018), alleges that the objectionable conduct occurred when Shusha Elqutt entered the Tulsa County Courthouse with her attorney from the Domestic Violence Intervention Services finalize her divorce.  Wanding continued to detect metal under Elqutt's hijab.  Authorities refused to allow Elqutt to remove her head covering in private in the presence only of a female deputy.  Eventually security officials allowed Elqutt to go between two parked cars in the parking lot and have two female deputies inspect her there.  Plaintiff contends that this still violated her free exercise rights, arguing:
With only two parked cars for coverage, Ms. Elqutt was forced to crouch down to obtain even the slightest amount of privacy. At any moment, a man could have walked by and seen Ms. Elqutt without her hijab, a fact not lost on her as she squatted, exposed and humiliated, in the middle of the courthouse parking lot.
Oklahoma ACLU issued a press release announcing the filing of the lawsuit.

Doctor Says His Free Exercise Rights Are Infringed By Blocking Him From Assisting Protester

An unusual religious free exercise lawsuit was filed in a Virginia federal district court yesterday by Greg Gelburd, a physician who says that he continually practices his religious belief of providing medical assistance to those in need.  The complaint (full text) in Gelburd v. Christiansen, (WD VA, filed 6/16/2018), contends that the U.S. Forest Service is preventing him from providing medical assistance to a "tree sitting" protester who is attempting to block a pipeline from being constructed in the George Washington and Jefferson National Forest.  The protester, a woman who has become known as "Nutty", has, for the past six weeks, been preventing pipeline construction by occupying a "monopad" atop a tall pole in the pipeline path. Forest Service employees are attempting to end Nutty's protest by denying her food, water, various services and the ability to communicate with others. Dr. Gelburd claims that his rights under the Religious Freedom Restoration Act and the First Amendment's religion and speech clauses are infringed by the government's actions.  The Rutherford Institute issued a press release announcing the filing of the lawsuit.

Wednesday, May 16, 2018

Two Appointments Made To USCIRF

The U.S. Commission on International Religious Freedom yesterday announced two appointments to the Commission.  On May 10, House Minority Leader Nancy Pelosi reappointed Dr. Tenzin Dorjee, who had been initially appointed to USCIRF in December 2016.  Dorjee, a Professor in Human Communications Studies at California State University, Fullerton, is also an expert on Tibetan culture.

It was also announced that on May 14, Senate Majority Leader Mitch McConnell appointed Tony Perkins as a Commissioner. Perkins has served as President of the Family Research Council since 2003.  Before that he served in the Louisiana legislature.  A post at Friendly Atheist Blog strongly criticizes Perkins' appointment.

British Court Sentences Former Army Officer Over Anti-Semitic Speech

From England, The Independent reported yesterday that right-wing activist  Jeremy Bedford-Turner was sentenced by the Southwark Crown Court to one year in jail after a jury convicted him of stirring up racial hatred in violation of the Public Order Act1986.  The charges stem from a 15-minute long virulently anti-Semitic speech that Bedford-Turner gave in July 2015 in central London.  The speech, opposing the Shomrim Jewish civilian patrol group, called for Britains to "free England from Jewish control."  Bedford-Turner, who previously served 12 years in the British army, was given a standing ovation by 35 of his supporters in the court room after he was sentenced. Britain's Campaign Against Anti-Semitism (CAA) has criticized the Crown Prosecution Service for its initial decision not to prosecute Bedford-Turner, a decision reversed only after CAA challenged the decision in court.

Native Americans Sue To Keep Use of Prayer Ground

On Monday, a suit was filed in New Jersey federal district court on behalf of the Native American Ramapough Lenape Nation claiming that local officials along with a neighboring housing association are attempting to prevent the Ramapoughs from using their own prayer ground for religious activities. (See prior related posting.)  The complaint (full text) in Ramapough Mountain Indians, Inc. v. Township of Mahwah, (D NJ, filed 5/14/2018), alleges in part:
Defendant Township of Mahwah is imposing cumulative crippling fines against plaintiff Ramapough of $12,500 per day, totalling $480,000 as of May 14, 2018, to end religious use of property, to eliminate sacred sites, and prevent assembly.
...  By letter dated September 5, 2017 Mahwah sent a letter purporting to revoke a 2012 zoning permit that it failed to disclose to Ramapough or State Courts recognizing religious use and logs with masks carved in them ... unilaterally and secretly without notice nor opportunity to be heard.
... Defendant Polo Club, in furtherance of this campaign to pressure the Ramapough Nation into ceasing its religious practices, to assemble and in fact to yield up the land, has made numerous unfounded complaints to the police department and used the New Jersey municipal "private warrant" process to bring criminal charges against Ramapough members.
Plaintiffs claim that these actions violate their 1st and 14th Amendment rights, RLUIPA and international treaties.  Courthouse News Service reports on the lawsuit.

State Department Says Controversial Pastor Was Invited By Ambassador

As previously reported, one of the pastors who delivered an invocation at yesterday's opening of the U.S. Embassy in Jerusalem was Robert Jeffress, who had made controversial statements in the past about Catholics, Jews, Mormons and various other religious groups. At a news conference yesterday (full text), State Department spokesperson Heather Nauert was asked about the decision to invite Jeffress.  Here is part of her exchange with a reporter:
QUESTION: Do you have any further explanation for why it was that Pastor Jeffress was chosen to participate in the ceremony given his past controversial comments?
MS NAUERT: I can just tell you that Ambassador Friedman, I know, was looking at a variety of people to be a part of the service or the ceremony, and that’s who was invited. I don’t have anything more for you on that.
QUESTION: Was the State Department aware of some of his past comments regarding specifically Mormonism, Islam, Muslim, and --
MS NAUERT: We certainly would not agree with --
QUESTION: -- Jewish --
MS NAUERT: -- his assertions. We would certainly not agree with the pastor’s remarks, some of his controversial remarks that he has made about various religious groups, but he was chosen by Ambassador Friedman, who was certainly welcome to do so, and made that decision.
QUESTION: Well, wait, so that means that if not – even though you don’t agree with those comments, you might say that they’re wrong or what – I don’t know what term you would use --
MS NAUERT: I think I was just pretty clear. I said we do not agree with his opinion.
QUESTION: But – so that’s not disqualifying to be – I mean, does this – is this the embassy of the United States of America or is it basically Ambassador Friedman’s embassy?
MS NAUERT: As we have seen before – I seem to recall not too long ago that there was another embassy that made some decisions – embassies certainly have their free will sometimes to make decisions about who they want to bring in as guest lecturers or people to lead a ceremony or some sort of a celebration. To my knowledge, we did not have any role in making that decision, but --
MS NAUERT: Not that we asked to. I just – I’m not aware if we had any decision-making --
QUESTION: Okay. So I just want to make sure I understand. So this is the equivalent – you’re saying it’s kind of like the equivalent of the Berlin situation?
MS NAUERT: I’m not saying that. I’m just saying that embassies and people around the world bring in lots and lots of people who have various opinions. Okay?

Therapist Sues After Dismissal For Refusing To Counsel Gay Couple

A religious discrimination lawsuit was filed last week in Michigan federal district court by a licensed clinical social worker against her former employer, HealthSource Saginaw.  The complaint (full text) in Lorentzen v. Healthsource Saginaw, Inc., (ED MI, filed 5/11/2018) alleges that Kathleen Lorentzen was informed that she would be terminated, and was subjected to demeaning, threatening and abusive actions, after she insisted on referring a same-sex couple to a different therapist for marriage counseling. Lorentzen says that continuing to counsel the couple would violate her Catholic religious beliefs. The complaint alleges violations of Title VII and of various state law provisions. Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Tuesday, May 15, 2018

Ramadan Begins

According to Al Jazeera, Ramadan begins tonight in the United States and Europe where Muslim communities rely on astronomical calculations. In Muslim countries, the start of Ramadan is determined by actual moon sightings rather than by previous calculations.  Thus Ramadan will begin tomorrow evening in some Middle Eastern and Asian nations. (The National).  EarthSky explains the impact of geographical location on moon sighting.

USCIRF Denounces China's Crackdown on Uighurs; State Department Focuses On Yemen's Persecution of Bahais

The U.S. Commission on International Religious Freedom issued a press release yesterday denouncing China's increasing crackdown on Uighur Muslims.  It said in part:
In addition to longstanding restrictions on Uighur Muslims’ religious practice during Ramadan—such as preventing Uighurs from fasting and praying—the Chinese government has instituted a multifaceted security grid throughout Xinjiang comprised of both personnel and advanced technology, including armed checkpoints, facial and iris recognition software, and cell phone monitoring. Moreover, the Chinese government seeks to stymie the growth of the next generation of Uighur Muslims by banning Uighur language instruction in schools, prohibiting children from attending mosque, and proscribing Islamic baby names considered “extreme.”
Meanwhile yesterday the State Department issued a press release denouncing harassment of Baha'is by the Houthi leaders in Yemen.

British Musician On Trial For Holocaust Revsionist YouTube Postings

Press Association reported yesterday on the trial in Britain of musician Alison Chabloz who is charged with sending grossly offensive Holocaust Revisionist material on a public communications network.  Chabloz, who is being tried in the Westminster Magistrates’ Court, is charged with 5 counts growing out of her posting on YouTube of videos of three songs she wrote.  Chaboz's attorney is raising a free speech defense. The judge's verdict will be handed down on May 25.  Meanwhile Chaboz is out on bail.

Consent Decree Settles Louisiana Religion In Schools Lawsuit

Last week, a Louisiana federal district court approved a consent decree (full text) in Cole v. Webster Parish School Board, (WD LA, May 11, 2018).  The suit charged that the school district extensively promoted Christianity in its schools. (See prior posting.)  The consent decree bars prayers at school events, bars religious baccalaureate services, prohibits holding school events at religious venues and bars school officials from promoting their personal religious beliefs to students in class or at school events.  ACLU issued a press release announcing the consent decree.

Monday, May 14, 2018

Civil Rights Commission Holds Hate Crimes Briefing

The U.S. Commission on Civil Rights last Friday held a public briefing titled "In the Name of Hate: Examining the Federal Government’s Role in Responding to Hate Crimes." The briefing's scope was described (Meeting Notice) (List of Panelists) in part as follows:
The Commission will examine best practices for local law enforcement on collecting and reporting data, and the role of the Education and Justice Departments in prosecution and prevention of these heinous acts. Commissioners will hear from local law enforcement and federal government officials, experts, academics, advocates, and survivors of hate.
Video of the day-long briefing is available online: (Morning Session; Afternoon Session; Public Comment). [Thanks to Michael Lieberman for the lead.]

Controversial Baptist Pastor To Open Ceremony Dedicating U.S. Embassy In Jerusalem

The Trump Administration has chosen controversial Baptist pastor Robert Jeffress to deliver the opening prayer in today's ceremony marking the move of the U.S. Embassy in Israel from Tel Aviv to Jerusalem. (WFAA News). As reported by Mother Jones, Jeffress, who is a supporter and informal faith adviser to President Trump, has made incendiary statements about non-Christian religions:
Jeffress, who runs the First Baptist Dallas megachurch in Texas, has referred to both Islam and Mormonism as “a heresy from the pit of hell.” He believes Islam, Mormonism, Hinduism, and Buddhism are all cults, and that Catholicism represents the “genius of Satan.” Jews, he believes, are going to hell. “You can’t be saved by being a Jew,” he’s said. Islam, he said, “is a religion that promotes pedophelia, sex with children.”
UPDATE: Here is a video of the full ceremony in Jerusalem.  Pastor Jeffress' invocation is at 17:25 on the video, followed by an invocation by Chabad Rabbi Zalman Wolowik.  The benediction at 1:12:03 on the video was offered by controversial Pastor John Hagee, evangelical founder of Christians United for Israel.

Recent Articles of Interest

From SSRN:

Sunday, May 13, 2018

Story Recounts Personal Side of Court-Ordered Medical Treatment of Child

The Cleveland Plain Dealer today has a lengthy account of the personal emotions involved in a court clash between parents and doctors over the treatment of a 14-year old girl with a brain tumor.  The story details the difficult decisions involved where parents, who are Moorish-Americans, want, consistent with their religious beliefs, to use herbal treatment instead of chemotherapy on the inoperable tumor.

Recent Prisoner Free Exercise Cases

In Hammock v. Pierce, 2018 U.S. Dist. LEXIS 76797 (SD NY, May 7, 2018), a New York federal district court allowed a Nation of Islam inmate to move ahead with his complaint that his cassette tapes containing NOI teachings were confiscated when his cell was searched.

In Gwyn v. Booker, 2018 U.S. Dist. LEXIS 77119 (WD VA, May 7, 2018), a Virginia federal district court dismissed an inmate's complaint that authorities refused to approve meetings for inmates of the Apostolic faith, separate from multi-denominational Protestant services.

In Wells v. McKoy, 2018 U.S. Dist. LEXIS 77516 (ND NY, May 7, 2018), a New York federal magistrate judge recommended dismissing complaints by plaintiffs that the Nation of Islam community was not allowed to select the inmates who would prepare the meals served during Ramadan, and that they were served food during Ramadan that did not meet NOI dietary restrictions.

In Harris v. Food Supervisor Carlock, 2018 U.S. Dist. LEXIS 77983 (CD IL, May 9, 2018), an Illinois federal district court allowed an inmate to move ahead with his claim that he was denied his religious vegan diet for an eight day period.

In Hammer v. Smith, 2018 U.S. Dist. LEXIS 80169 (WD VA, May 10, 2018), a Virginia federal district court dismissed, without prejudice, a civil detainee's claim that state hospital policy violated his free exercise rights by denying him "the right to enter into holy matrimony".

Friday, May 11, 2018

Education Department Considering Expanding Faith-Based Insitutions' Eligibility For Grants

As part of its Spring 2018 regulatory agenda released on Wednesday, the U.S. Department of Education signaled that it is considering rule amendments to expand the eligibility of faith-based institutions for federal grants.  In a release titled Eligibility of Faith-Based Entities and Activities, DOE said:
Various provisions of the Department’s regulations regarding the eligibility of faith-based entities to obtain grants from the Department or to participate in State-administered programs and the activities that they may perform unnecessarily restrict participation by religious entities in the Department’s grant programs by including requirements specific to such entities. The Department plans to review and to amend or rescind such regulations in order to be consistent with current law and to reduce or eliminate unnecessary burdens and restrictions on religious entities and activities.
According to the New York Times, the proposals are an attempt to align DOE rules regarding religious colleges and universities with the Supreme Court's 2017 Trinity Lutheran decision. [Thanks to Scott Mange for the lead.]

Indonesia Sentences Christian Man To 4 Years For Facebook Post Urging Conversion

According to World Watch Monitor and the Jakarta Post, in Indonesia on Monday a Christian cleric was sentenced to 4 years in prison and a fine equivalent to $3,565(US) for religious discussion on a video he posted online.   Abraham Ben Moses, a convert from Islam, was convicted of violating the Electronic and Information Transactions Law No. 11/2008 by intentionally spreading information intended to incite hatred against an individual or group based on religion. According to the Post:
Abraham was known for recording his conversations with an online taxi driver identified only as Supri.
In a video he uploaded to his Facebook account, Abraham quoted a Quran verse about marriage and tried to convince the driver to convert to Christianity.

Muslim Woman Sues Over Forcible Removal of Hijab At California Jail

CAIR-LA announced yesterday that it has filed a federal lawsuit on behalf of a Muslim woman who had her hijab forcibly removed by Ventura County, California deputy sheriffs.  The incident occurred at the county jail after Jennifer Hyatt was arrested because of her involvement in a domestic dispute.  Even after she had been searched, deputies refused her request to wear her hijab when men were present, and instead violently pulled off the second part of her two-piece hijab.

Texas' Highest Criminal Court Upholds Law Punishing Sexual Assault By Polygamists More Harshly

In Estes v. State of Texas, (TX Ct. Crim. App., May 9, 2018), the Texas Court of Criminal Appeals, reversing the Court of Appeals, upheld the constitutionality of a Texas statute that provides higher penalties for polygamists who sexually assault their purported spouses than for other sexual assaults.  Defendant argued that the statute had the effect of treating married people more harshly than others.  The majority held that where, as here, the assault victim was a minor, it is enough that the state had a rational basis for the distinction it drew, saying in part:
[T]he Legislature could rationally conclude that to be a married man or woman is to project the kind of “stability” and “safe haven” that many children find comfort in.... And it could rationally see fit to declare that one who would enjoy this marital perception of trustworthiness will be punished all the more severely if he uses it to groom, and then sexually abuse, a child.
Judge Newell, joined by Judges Hervey and Richardson, filed a separate opinion concurring in part and dissenting in part, saying:
[W]hile I ultimately agree with the Court that the legislative classification is rationally related to a legitimate state interest, I disagree with the Court’s chosen path to that result....
The State’s interest in protecting children does not explain why a legislative distinction between married and unmarried defendants is rational. It only serves to make the State’s argument supporting that distinction look more substantial....
Ultimately, the resolution of this case turns upon the level of scrutiny we must apply in our evaluation of the statute at issue. Does strict scrutiny apply because the distinction between married and unmarried offenders significantly interferes with the fundamental right to marry? Rather than remand the case to the court of appeals to decide the issue, I would address the issue head-on. The answer is no.
Judge Alcala dissented without filing a separate opinion.