Brazil's Supreme Court Upholds Denominational Religious Classes In Public Schools

Brazil's Constitution, Article 210, provides: "Minimum curricula shall be established for elementary schools.... The teaching of religion is optional and shall be offered during the regular school hours of public elementary schools...." As reported by Folha de S. Paulo and La Croix, on Wednesday, by a 6-5 vote, Brazil's Supreme Court held that this allows teachers in public schools to promote their specific religious beliefs, so long as the classes are optional.  The dissenters argued that religion classes in public elementary schools must be non-confessional, that is, not connected to a specific religion.  The case grew out of a challenge by the Prosecutor General's Office to a 2008 Agreement between Brazil and the Vatican allowing multi-confessional religious instruction in Brazil's public schools.

District Court Nominee's Prior Speeches Create Concern

As previously reported, earlier this month President Trump nominated Texas Assistant Attorney General Jeff Mateer for a federal district court judgeship in Texas.  Mateer was previously general counsel and executive vice president of the First Liberty Institute.  Now, according to Wednesday's San Antonio Express-News, Texas Senator John Cornyn is expressing concern over the nomination after CNN discovered speeches in which Mateer referred to transgender children as part of "Satan’s plan" and defended the use of gay "conversion therapy."

Trump Nominates Religious Liberty Expert For Seat On 5th Circuit

Yesterday President Trump announced (among other nominations) the nomination of Kyle Duncan for a seat on the U.S. 5th Circuit Court of Appeals. Much of Duncan's career has been devoted to religious liberty concerns.  Reporting on the nomination, the Baton Rouge Advocate calls Duncan a "conservative Christian legal warrior."

An unusually deep record of Duncan's views on First Amendment issues is available.  From 2004-2008, he was an Assistant Professor of Law at the University of Mississippi where he taught courses on constitutional law, church-state relations, and free speech. (Bio.)  Duncan's publications include:

• Secularism's Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493 (2003).
• Bringing Scalia's Decalogue Dissent Down from the Mountain, 2007 Utah L. Rev. 287 [LEXIS link].
• Prosecution Responses To Internet Victimization: Child Pornography and First Amendment Standards, 76 Miss. L. J. 677 (2007).
• Subsidiarity and Religious Establishments in the United States Constitution, 52 Vill. L. Rev. 67 (2007).
• Misunderstanding Freedom from Religion: Two Cents on Madison's Three Pence, 9 Nev. L.J. 32 (2008).

From 2012- 2014 Duncan served as general counsel for the Becket Fund for Religious Liberty.  He was lead counsel in the Supreme Court case of Hobby Lobby Stores v. Burwell which concluded that the Affordable Care Act's contraceptive coverage mandate violates religious rights of objecting small businesses under RFRA.  Here is the merits brief that Duncan's team filed in the case.

Now a partner in the Washington, D.C. law firm of Scherr Duncan, his web page includes links to nearly a dozen news interviews and blog posts in which Duncan talks about religious liberty issues.

EEOC Files Two Religious Accommodation Suits

On Wednesday the EEOC announced the filing of two separate religious discrimination lawsuits.  One suit (press release) was brought against the Sacramento, California-based supermarket chain Raley's for refusing to continue accommodating the religious needs of a Jehovah's Witness employee. The employee was fired after insisting that she needed to attend religious meetings on Wednesday evenings and Sunday afternoons.

In a second suit (press release), the EEOC sued  the Florida-based Publix Supermarket chain for refusing to accommodate a Ratafarian new hire's religious need to wear his hair in dreadlocks.

Nuns Lose Challenge To Pipeline

In Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, (ED PA, Sept. 28, 2017), a Pennsylvania federal district court dismissed for lack of jurisdiction a RFRA challenge by a Catholic order of nuns to the construction and operation of the Atlantic Sunrise gas pipeline through land owned by the order.  The nuns say their religious beliefs require them to protect and preserve creation.  The court held that the Natural Gas Act sets out a procedure for challenging a FERC grant of a certificate to build an interstate pipeline.  Plaintiffs here did not follow those procedures which require first that challengers request a rehearing from the agency, and then review by the Court of Appeals.  The court concluded that the Religious Freedom Restoration Act does not supersede the exclusive jurisdiction provision of the Natural Gas Act. Lancaster Online reports on the decision. (See prior related posting.)

Controversy Brews Over Holiday Display of Pentagram Monument

Controversy over December holiday displays has begun early this year in Boca Raton, Florida.  A city ordinance allows residents to put up unattended displays during the holiday season in Sanborn Square, a city park.  According to yesterday's Christian Times, a local teacher has filed an application to set up a 300-pound metal Pentagram honoring Satan this December.  The display would include captions such as "In Satan We Trust," "One Nation under Antichrist" and "May the Children Hail Satan."  The teacher also wants to set up a Freedom From Religion Nativity Display.  A local pastor has reacted by saying: "It’s evil, it’s the essence of evil. I will take the responsibility for taking the sledgehammer and knocking it down."

Roy Moore Wins Republican Runoff In Alabama

Former Alabama Supreme Court Chief Justice Roy Moore won yesterday's Alabama Republican U.S. Senate primary runoff, prevailing over Luther Strange who has served in the U.S. Senate for six months.  Moore won by a vote of 55% to 45%. (Official results).

As reported by CNN:

Moore now faces Democratic nominee Doug Jones in a December general election in the race to replace Attorney General Jeff Sessions.

Moore's win Tuesday night will thrust his long history of homophobic and racially tinged remarks into the spotlight.

He has campaigned on a platform of placing Christianity at the center of public life. In 2003, Moore was removed as state Supreme Court chief justice for refusing to take down a Ten Commandments monument. He was re-elected to the job, and then ousted again in 2016, when he refused to follow the US Supreme Court's ruling legalizing same-sex marriage.

Though Alabama is a solidly red state, Democrats hope Jones, a former federal prosecutor who rose to prominence by leading the government's case against two perpetrators of the 16th Street Baptist Church bombing, can make the race competitive.

Here is additional background on Moore from Wikipedia.

Moore Tweeted from his victory rally: "There's one person you don't see on this stage that's done more for my campaign than anybody, and that's almighty God."  In a second Tweet, he added: "We have to return to the acknowledgment of God, and the United States Constitution."

Saudi Decree Will Allow Women To Obtain Divers Licenses

Saudi Arabia's King Salman yesterday issued a Royal Decree (full text) which for the first time allows the issuance of drivers licenses to women.  As reported by Reuters, Saudi Arabia has been the only country that bars women from driving.  The new rules will be implemented by June 2018 after a high-level committee of ministries recommends how to implement the changes. The decree reads in part:

We also refer to what the majority of the Council of Senior Scholars agreed on, which is that the original Islamic ruling in regards to women driving is to allow it, and that those who have opposed it have done so based on excuses that are baseless and have no predominance of thought. The scholars see no reason not to allow women to drive as long as there are legal and regulatory guarantees to avoid the pretexts (that those against women driving had in mind), even if they are unlikely to happen.

And because the country - with the help of God - is the guardian of Islamic values, it considers preserving those values one of its priorities, in this matter and in others, and will not hesitate to take any means to ensure the security and safety of its society.

Suit Charges School With Retaliating Against Student Who Challenged Religious Viewpoints

Denver Post reported yesterday on a federal lawsuit filed by a former Delta County, Colorado High School student who contends that her grades were reduced and her college applications undercut because of her opposition to injection of religious views into classes and school assemblies. The lawsuit claims:

Defendants retaliated upon plaintiff Fisk, threatened, punished and censored her, for expressing her opinions on religion, abortion, sex education, and drug education in an attempt to chill, deter and restrict (her) from freely expressing her opinions.

EEOC Sues Over Dress Code Accommodation

EEOC announced Monday that it has filed suit against Georgia Blue, a Mississippi- based chain of restaurants which refused to grant an employee a religious accommodation to allow her to wear a blue skirt instead of the required blue jeans.  A job offer to Kaetoya Watkins to work as a restaurant server was rescinded when she told the company that her Apostolic Pentecostal religious belief requires her to wear only skirts or dresses.  AP reports on the lawsuit.

Today Is "See You At the Pole" Day

Today is "See You At the Pole" day in public and private schools in the U.S. and around the world.  The SYAP website describes the event:

All around the globe, in every time zone, students will be gathering at their flagpoles, praying for their school, friends, families, churches, and communities. SEE YOU AT THE POLE is a day committed to global unity in Christ and prayer for your generation.

Christian Post says that 1 million students will participate in the event this year, which is held before school (7:00 am local time).

Pastor's Suit Against VA Over Prayer Content Dismissed For Lack of Standing

In Youngblood v. United States Department of Veterans Affairs, 2017 U.S. Dist. LEXIS 156522 (MD FL, Sept. 25, 2017), a Florida federal district court dismissed for lack of standing a suit by a Baptist pastor who feared that VA officials would not allow him to offer prayers on VA property consistent with his religious beliefs.  At a memorial ceremony, Pastor Gene Youngblood offered an invocation specifically criticizing former secretary of State Hilary Clinton.  This led to a complaint that Youngblood had violated VA regulations that bar demonstrations or services on VA property that support or oppose current U.S. government policy. In dismissing Youngblood's suit seeking an injunction to prevent his future exclusion from VA property, the court said in part:

In short, the Complaint claims injury because Defendants will consider Pastor Youngblood's past noncompliance in determining whether to allow future ceremonies on VA property. While Pastor Youngblood claims the "threat of future exclusion of Plaintiff from VA property is both great and immediate" he fails to plead specific facts as to how that is so. Instead, Pastor Youngblood sets forth general and vague allegations regarding injury...

Today Is Alabama Senate Primary Runoff Between Moore and Strange

Today in Alabama, Republican voters go to the polls in the runoff U.S. Senate primary race between incumbent Luther Strange and former Alabama Supreme Court Chief Justice Roy Moore.  Moore is known for his high profile battles in which he refused to remove a Ten Commandments monument from the Alabama Supreme Court building and his defiance of the U.S. Supreme Court's same-sex marriage ruling.  Al.com reports that in his final campaign rally last night, Moore told a large crowd: "For whatever reason, God has put me in this election at this time and all of the nation is watching."

Trump Issues New, More Targeted Version of Travel Ban

President Trump yesterday issued a Proclamation (full text) (press release) (White House background document) setting out a more targeted version of his travel ban.  The travel restrictions in the prior ban expired yesterday, while the refugee restrictions in the prior ban extend to Oct. 24.  The new ban focuses around a "baseline for the kinds of information required from foreign governments" to allow U.S. vetting of immigrants and non-immigrants. The Administration determined that 7 nations fail to meet these standards: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen, and travel to the U.S. by nationals of those countries is largely banned. (Though restrictions on Venezuela are limited to travel here by government officials.) The Administration also found that Iraq does not meet the baseline standards, but excludes its nationals from new restrictions. A ban is placed on admission of immigrants from Somalia, even though it technically meets the baseline criteria. The Proclamation separately sets out the scope of the restrictions on each of the covered nations, tailoring each to the individual situations. (Fact Sheet; FAQs).

As reported by Reuters, these developments are likely to have an effect on the challenges to the prior travel ban pending in the courts.  The Supreme Court is scheduled to hear oral arguments on those challenges on Oct. 10. (See prior posting.) Yesterday the Administration asked the Supreme Court to consider receiving additional briefs to address the effects of the new Proclamation on the pending cases. Washington Post has additional reporting on the new Presidential Proclamation.

UPDATE: In an Order (full text) dated Sept. 25, the U.S. Supreme Court ruled:

The parties are directed to file letter briefs addressing whether, or to what extent, the Proclamation issued on September 24, 2017, may render cases No. 16-1436 and 16-1540 moot. The  parties should also address whether, or to what extent, the  scheduled expiration of Sections 6(a) and 6(b) of Executive Order No. 13780 may render those aspects of case No. 16-1540 moot.

EEOC Sues Doctor Over Required Bible Sessions For Employees

The EEOC last week filed suit against a Texas physician who required employees to attend daily meetings involving Bible study and the application of religious principles to employees' personal lives.  The complaint (full text) in EEOC v. Shepherd, (ND TX, filed 9/20/2017) seeks relief on behalf of 4 employees who were dismissed over objections to the meetings or over personal lifestyles. Courthouse News Service reports on the lawsuit.

California Lions Club Sues To Control Cross In Park

According to the East Bay Times, on Sept. 11 the Albany, California Lion's Club filed suit in federal court against the city and several city officials in a dispute involving a 20-foot cross in the city's Albany Hill Park. The cross was constructed in 1971 on privately-owned land.  It was transferred to the city in 1973 as part of a controversial land deal in which the city created Albany Hill Park. Before the transfer to the city, the Lion's Club was granted an easement to allow it to maintain the cross. In December 2015, the city cut power to the cross, contending that a utility line running to it was unsafe. It cut power again in 2016 until the local utility PG&E took responsibility for the power line to assure that the cross would be lit for the Christmas and Easter seasons. According to the Times report, the suit:

asks for permanent injunctions preventing the city from depriving the Lions Club of using its easement, preventing interference in utility service, hampering the Lions Club’s free speech rights and exercise of religion, and demands an order to force the city to sell or divest ownership of the land with the cross on it. The suit also asks for damages and legal fees.

Court Says Private Investigator Invaded Privacy of Buddhist Temple

In Vo v. Mason, (CA App., Sept. 19, 2017), a California state appellate court held that plaintiff Thuy Thanh Vo was likely to prevail on her state constitutional invasion of privacy suit against a neighbor and those working with him who are trying to prevent Vo from using her property as a Buddhist Temple without zoning approval.  Posing as someone who wanted to study Buddhism and pray, one of the defendants who is a private investigator took photos of religious ceremonies at Vo's property.  The court's finding of a probability of success led the court to deny a SLAPP motion to dismiss Vo's suit.

Recent Articles of Interest

From SSRN:

• Rahman Apalara, Striking a Balance: Freedom of Expression and the Prohibition of Hate Speech and Offensive Remarks, (September 11, 2017).
• Nadia N. Sawicki, A Common Law Duty to Disclose Conscience-Based Limitations on Medical Practice, (Chapter 13 in Law, Religion, and Health in the United States (Lynch, Holly Fernandez, I. Glenn Cohen, and Elizabeth Sepper eds., 2017).
• Nomi Maya Stolzenberg, From Eternity to Here: In Search of the Origins of Secularism, (USC Legal Studies Research Papers Series No. 17-20 (2017)).
• Adam J. White, Justice Scalia's Soulcraft as Statecraft, (June 15, 2017).
• Noa Ben-Asher, Faith-Based Emergency Powers, (Harvard Journal of Law and Gender, Forthcoming).
• Steven J. Heyman, The Light of Nature: John Locke, Natural Rights, and the Origins of American Religious Liberty, (Marquette Law Review, Forthcoming).
• Terri Lynn Helge, Rejecting Charity: Why the IRS Denies Tax Exemption to 501(C)(3) Applicants, (Pittsburgh Tax Review, Vol. 14, No. 1, 2016).

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

• Ming-Sung Kuo & Hui-Wen Chen, The Brown Moment in Taiwan: Making Sense of the Law and Politics of the Taiwanese Same-Sex Marriage Case in a Comparative Light, (Columbia Journal of Asian Law, Forthcoming).
• Mehdi Shadmehr, Khomeini's Theory of Islamic State and the Making of the Iranian Revolution, (September 16, 2017).
• Jikon Lai, Lena Rethel & Kerstin Steiner, Conceptualizing Dynamic Challenges to Global Financial Diffusion: Islamic Finance and the Grafting of Sukuk, (Review of International Political Economy, 2017).
• Aklavya Anand & Shailesh Kumar, Public Domain of Personal Laws: An Inquiry from the Perspectives of Conflict of Interests and Identities, (NLSIU Journal of Law and Public Policy, Volume IV, Special Issue, 2017).

From SmartCILP:

• Wim Decock, Law, Religion, and Debt Relief: Balancing Above the 'Abyss of Despair' in Early Modern Canon Law and Theology, [Abstract], 57 American Journal of Legal History 125-141 (2017).
• Anton Sorkin, Graduation Ceremonies: A Prayer for Balancing Sponsorship and Censorship, 41 Southern Illinois University Law Journal 345-402 (2017).

Recent Prisoner Free Exercise Cases

In Paliotta v. State of Nevada ex rel Nevada Department of Corrections, (NV Sup. Ct., Sept. 14, 2017), the Nevada Supreme Court held that the trial court erred when it used the centrality test instead of the sincerely held belief test to decide if an inmate of the Thelemic faith was entitled to receive a kosher diet or a traditional Egyptian diet.

In Brown v. Solomon, 2017 U.S. Dist. LEXIS 150611 (WD NC, Sept. 15, 2017), a North Carolina federal district court allowed an inmate to move ahead with his efforts to reinstate separate religious services for Jehovah's Witnesses.

In Neely-Bey Tarik-El v. Conley, 2017 U.S. Dist. LEXIS 151714 (SDIN, Sept. 19, 2017), an Indiana federal district court dismissed on qualified immunity grounds a suit by an inmate claiming that his rights were violated when prison authorities disciplined him for violating a resolution of the Moorish Science Temple of America prohibiting him from actively engaging in MSTA religious services.

In Sabin v. Karber, 2017 U.S. Dist. LEXIS 152476 (WD MI, Sept. 20, 2017), a Michigan federal district court dismissed complaints by a Messianic Christian prison ministry that mail it sent into prisons was being rejected.

In Evans v. Lopez, 2017 U.S. Dist. LEXIS 153274  (ED CA, Sept. 15, 2017), a California federal magistrate judge allowed an inmate to move ahead with his complaint that he was denied Ramadan meals that he had bee approved to receive.

Court Upholds Anti-Discrimination Law Over Wedding Videographer's Challenge

In Telescope Media Group v. Lindsey, (D MN, Sept. 29, 2017), a Minnesota federal district court in a 63-page opinion rejected a challenge to a provision of the Minnesota Human Rights Act that requires plaintiffs, owners of a videography business that plans to offer wedding videos, to serve same-sex couples.  Responding to plaintiffs' free speech arguments, the court said in part:

Posting language on a website telling potential customers that a business will discriminate based on sexual orientation is part of the act of sexual orientation discrimination itself; as conduct carried out through language, this act is not protected by the First Amendment.

Plaintiffs also argued that the law, as applied, unconstitutionally affects the content of their videos. However the court concluded:

The MHRA’s application to the Larsens’ wedding video business, as a content neutral regulation of conduct with an incidental effect on speech, survives intermediate scrutiny.

The court went on to reject plaintiffs' free exercise challenge, finding that the law is neutral and of general applicability.

Church Loses RLUIPA Equal Terms Challenge To Parking Requirements

In Immanuel Baptist Church v. City of Chicago, (ND IL, Sept. 22, 2017), an Illinois federal district court dismissed a church's facial RLUIPA "equal terms" challenge, as well as its equal protection challenge to the city's parking requirement for "religious assemblies." The court concluded that churches are not similarly situated to libraries for which less stringent parking standards are imposed. The court however granted the church leave to file an amended complaint asserting an "as applied" RLUIPA challenge.

Tennessee Supreme Court: Resolves Approach In Church Property Dispute

In Church of God In Christ, Inc. v. L.M. Haley Ministries, Inc., (TN Sup. Ct., Sept. 21, 2017), the Tennessee Supreme Court, in a church property dispute, concluded that a break-away local church held its property in trust for its parent body, Church of God In Christ, Inc. The court held that in church property disputes, Tennessee courts should apply the "hybrid" version of the "neutral principles" doctrine:

In applying the hybrid approach, Tennessee courts may consider any relevant statutes, the language of the deeds and any other documents of conveyance, charters and articles of incorporation, and any provisions regarding property ownership that may be included in the local or hierarchical church constitutions or governing documents. But ... a civil court must enforce a trust in favor of the hierarchical church, even if the trust language appears only in the constitution or governing documents of the hierarchical religious organization.

The court also held that civil courts should defer to the decision of the Ecclesiastical Council as to who should be pastor of the church.

A concurring opinion by Justice Curry questioned the majority's treatment of the ecclesiastical abstention doctrine as a bar to jurisdiction rather than as an affirmative defense.  The Court also issued a press release summarizing its decision.

Mosque's Property Tax Challenge Barred By Tax Injunction Act

In Islamic Center of Nashville v. Sate of Tennessee, (6th Cir., Sept. 20, 2017), the U.S. 6th Circuit court of Appeals held that the federal Tax Injunction Act (TIA) bars suit in federal court challenging Tennessee's application of its property tax exemption rules to property of an Islamic Center.  To finance construction of a new school, the Islamic Center entered a 5-year ijara agreement-- an Islamic financing method that relies on a temporary sale and lease-back arrangement with a bank to avoid borrowing at interest.  The county removed the property's tax exemption for the period that title was technically held in the bank's name.  The court held that because state law provides a plain, speedy, and efficient
alternative to federal court review of the county's assessment of taxes on the Islamic Center, that is the route that plaintiff must take. There is no special exception to the TIA for First Amendment claims.

Lawsuit Challenges Adoption Agencies' Refusal To Place Children With Same-Sex Couples

Today two same-sex couples and a Michigan taxpayer filed suit in a Michigan federal district court challenging the state's practice of contracting out foster-care and adoptive placement to social service agencies that apply religious criteria in placing children.  Statutes passed the state legislature in 2015 approve this practice.  The complaint (full text) in Dumont v. Lyon, (ED MI, filed 9/20/2017), alleges that religiously affiliated agencies' practice of turning away qualified families on the basis of sexual orientation, violates the Establishment Clause and the Equal Protection Clause.  ACLU issued a press release announcing the filing of the lawsuit.

Michigan Civil Rights Commission Stymied In Effort To Issue Interpretive Opinion On Law's Coverage

In June, Equality Michigan wrote the Michigan Civil Rights Commission asking it to issue an interpretative statement finding that the ban on sex discrimination in employment, housing, and public accommodations in Michigan’s Elliott-Larsen Civil Rights Act covers discrimination based on gender identity and sexual orientation. (Full text of letter.)  As reported by MLive, on Monday the Commission held a lengthy hearing on the request, but took no final action after an Assistant Attorney General told the Commission that lacks legal authority to issue an interpretive statement. A frustrated Commission voted 5-2 to ask the Attorney General for a formal opinion on its authority.

7 U.S. Senators Write Netanyahu Over Jewish Pluralism In Israel

As reported by JTA, on Monday seven U.S. senators (all of them Jewish) sent a letter (full text) to Israeli Prime Minister Benjamin Netanyahu expressing concern over Israeli governmental recognition of Orthodox Judaism over the more liberal branches of Judaism.  Signed by Senators Wyden, Feinstein, Frankin, Blumenthal, Cardin, Schatz, and Sanders, the letter read in part:

[W]e applaud your recent decision to put a hold on a conversion bill under consideration by the Knesset. As we understand it, this bill would invest full oversight of conversions in Israel to the Chief Rabbinate.  We fear this would have significant ramifications for the religious equality of all Jewish movements in Israel and we worry that our Modern Orthodox and non-Orthodox constituents will see this as an attack on their Jewishness and the status of their rabbis....

We are also very concerned by the Israeli government's recent decision to freeze a widely-agreed-upon plan to establish an egalitarian payer space at the Western Wall....

We fear actions like [these] ... will strain the unique relationship between our two nations, particularly if the majority of American Jews see the movements to which they are committed denied equal rights in Israel.  Given all the challenges Israel faces on the international stage, we urge you not to alienate committed Zionists.

Suits Against Kim Davis Move Ahead

In two similar cases, Yates v. Davis, (ED KY, Sept. 15, 2017), and Ermold v. Davis,(ED KY, Sept. 15, 2017), a Kentucky federal district court allowed plaintiffs to move ahead with their damage actions against Rowan County, Kentucky Clerk, Kim Davis, who refused to issue them marriage licenses. Davis adopted a "no marriage license" policy because of her religious objections to issuing licenses for same-sex marriages. (See prior related posting.) While dismissing claims brought against Davis in her official capacity, the court refused to dismiss personal capacity claims against her.  It found that her refusal to issue licenses was subject to strict scrutiny. [Thanks to Tom Rutledge for the lead.]

State May Require Inspection of Release Time School Buses

In CBM Ministries of South Central Pennsylvania v. Richards, (MD PA, Sept. 19, 2107), a Pennsylvania federal district court held that to the extent state school bus inspection regulations apply to buses of a religious organization, the regulations do not violate the Free Exercise Clause.  They are a neutral and generally applicable regulation.  At issue were buses that are used to transport students from public schools to an off-premise release time Bible education program.

Report Claims DOJ Was Divided Over Whether To File Amicus Brief In Masterpiece Cakeshop

As previously reported, earlier this month the Department of Justice filed an amicus brief in the Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, siding with the Christian bakery owner who refused to design and create a cake for a same-sex wedding.  Last week National Law Journal reported that the Department was divided on whether to file an amicus brief, although a Justice Department spokesperson denied  the report.The paper says:

Senior lawyers in the civil and civil rights divisions and within the U.S. solicitor general’s office said the department should not take a position in the case...

[Acting Solicitor General Jeffrey] Wall was the lead attorney among what former Justice Department lawyers said was an unusually large group of attorneys—eight in all—whose names appeared on the cover of the court filing....

Absent from the government’s Masterpiece Cakeshop brief was any career deputy solicitor general, whose name routinely appears on amicus and merits filings from the Justice Department.

Trump Issues Jewish High Holy Day Greetings

President Trump yesterday issued a Jewish High Holy Day Message (full text), saying in part:  "On behalf of all Americans, I want to wish Jewish families many blessings in the New Year."

Recent Articles of Interest

From SSRN:

• Aziz Z. Huq, Judging Discriminatory Intent, (Cornell Law Review, Vol. 103 (2017)).
• William E. Thro & Charles J. Russo, Odious to the Constitution: The Educational Implications of Trinity Lutheran Church v. Comer, (Education Law Reporter (2017, Forthcoming)).
• Elizabeth Brown & Inara K. Scott, Sanctuary Corporations: Should Liberal Corporations Get Religion?, (August 18, 2017).
• Erdem Büyüksagis, The Role of Comparative Law: New International Model Rules vs. Time-Tested Local Practices, (North Carolina Journal of International Law and Commercial Regulation, Vol. 42, No. 3, 2017).
• Ori Aronson, The How Many Question: An Institutionalist's Guide to Pluralism, (Institutionalizing Rights and Religion: Competing Supremacies 147-163 (Leora Batnitzky & Hanoch Dagan eds., Cambridge University Press, 2017).
• Scott D. Gerber, Law and Catholicism in Colonial Maryland, (103 Catholic Historical Review 465 (2017)).
• Reva Siegel, ProChoiceLife: Asking Who Protects Life and How—And Why It Matters in Law and Politics, (Indiana Law Journal, Forthcoming).
• Virginia La Torre Jeker, When Sharia and U.S. Tax Law Collide, (Tax Notes International, Volume 87, No. 8, August 21, 2017).
• David Herzig & Samuel D. Brunson, Let Prophets Be (Non) Profits, (Wake Forest Law Review, Forthcoming).

Israel's High Court Erodes Rabbinate's Monopoly On Kosher Certification

By a vote of 5-2, last week an expanded panel of Israel's High court of Justice handed down a ruling which moves toward breaking the Chief Rabbinate's monopoly on designation of which restaurants in the country are kosher.  As reported by Haaretz and Arutz Sheva, the ruling stops short of allowing alternative private kashrut certification. It upholds the Rabbinate's position that Israel's Kosher Fraud Law prohibits a business from representing itself as "kosher" without a certification approved by the Chief Rabbinate. However the decision does allow businesses "to display a true representation about the standards they follow and the way they are supervised in keeping them, which also includes an explicit clarification that they do not have a kashrut certificate."  The court added:

Assuming it is telling the truth, nothing prevents a food establishment from clarifying that the meat it serves was purchased from a slaughterhouse that carries kosher certification; and that the fish it serves are only those with fins and scales.

Recent Prisoner Free Exercise Cases

In Canada v. Gregg, 2017 U.S. Dist. LEXIS 146892 (WD VA, Sept. 12, 2017), a Virginia federal district court dismissed a Muslim inmate's complaint that changes in the common fare diet menu caused him to lose substantial weight.

In Goins v. Fleming, 2017 U.S. Dist. LEXIS 146891 (WD VA, Sept. 12, 2017), a Virginia federal district court allowed a Muslim inmate to move ahead with his complaint regarding kufi use during pod recreation and bathroom access during Sunni group services.  However the court dismissed a number of other claims regarding religious diet and location and monitoring of Sunni religious services.

In Jones v. North Carolina Department of Public Safety, 2017 U.S. Dist. LEXIS 147950 (WD NC, Sept. 12, 2017), a North Carolina federal district court allowed a Muslim inmate to move ahead with his complaint that he was required to shave his beard before he could go to a work-release job interview.

In Stansel v. Sorey, 2017 U.S. Dist. LEXIS 147985 (ND FL, Sept. 13, 2017), a Florida federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 148260, Aug. 8, 2017) and dismissed a Muslim inmate's complaint that an offer by an "Islamic sponsor" to provide funding for Ramadan and Eid al Fitr observances was rejected, while sponsors were accepted for other religious groups.

In Frazier v. Florida Department of Corrections, 2017 U.S. Dist. LEXIS 148814 (Sept. 14, 2017), a Florida federal district court dismissed a Jewish inmate's complaints regarding the adequacy and availability of a kosher diet.

In Johnson v. Swibas, 2017 U.S. Dist. LEXIS 149163 (D CO, Sept. 13, 2017), a Colorado federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 150250, July 28, 2017) and dismissed a Messianic Jewish inmate's complaint that he could not obtain an alternative kosher diet without confirmed medical food allergy test results.

Church's Objections To Zoning Conditions Dismissed On Ripeness Grounds

In Life Covenant Church, Inc. v. Town of Colonie, (ND NY, Sept. 13, 2017), a New York federal district court dismissed on ripeness grounds a church's objections to conditions placed in the zoning approval for its construction of a new building. The church contended that conditions limiting the starting time for religious services and the number of daily services violated its rights under the state and federal constitutions as well as RLUIPA.  The court held that the judicial challenge is not ripe because the church has not received a final decision on its request to the city that it amend its prior approval to eliminate the objectionable conditions.

Farmer's Market Must Issue Vendor's Permit To Orchard That Refuses To Host Same-Sex Weddings

In Country Mill Farms, LLC v. City of East Lansing, (WD MI, Sept. 15, 2017), a Michigan federal district court issued a preliminary injunction requiring a Michigan city to allow an orchard owner to sell produce at its Farmer's Market even though he refuses on religious grounds to host same-sex weddings at his orchard.  After Country Mill posted its policy against hosting same-sex weddings on its Facebook page, the city amended its Farmer's Market Vendor Guidelines to require all vendors to comply with the city's civil rights ordinances not only at the Farmer's Market, but "as a general business practice." It denied Country Mill a vendor's license because of non-compliance with the public accommodation law which, among other things, prohibits publishing a statement that indicates a business will discriminate on the basis of sexual orientation.

The court found that Country Mill had shown a substantial likelihood of success on its First Amendment retaliation claim: The city took action chilling the orchard owner's speech about his religious beliefs. Plaintiff also showed a likelihood of success on his free exercise claim:

The context in which the Vendor Guidelines were amended and then applied to Country Mill supports Plaintiffs’ claim that their religious beliefs or their religiously motivated conduct was the target of the City’s actions.... [T]he City’s hostility to Plaintiffs’ religion or religious conduct was ... manifested when the City used its facially neutral and generally applicable ordinance to deny Plaintiffs’ Vendor Application.

ADF issued a press release on the decision, with links to some of the other pleadings in the case.

President Holds High Holiday Teleconference With Jewish Leaders, Absent Many Who Boycotted the Annual Event

As reported by the Washington Post, today President Trump (along with Jared Kushner) participated in the traditional annual telephone call with Jewish leaders in advance of Rosh Hashanah. This year, however, leaders of the Reform, Conservative and Reconstructionist denominations boycotted the call in protest of Trump's remarks last month after Charlottesville.  In a statement, these leader charged that "The president’s words have given succor to those who advocate anti-Semitism, racism, and xenophobia." (Background.)  The White House released a transcript of remarks by the President and by Kushner at today's teleconference.  There the President said in part:

I am grateful for the history, culture, and values the Jewish people have given to civilization. We forcefully condemn those who seek to incite anti-Semitism, or to spread any form of slander and hate -- and I will ensure we protect Jewish communities, and all communities, that face threats to their safety.

Louisiana AG Opinion Says ABA Model Rule Barring Discrimination Is Unconstitutional

The Louisiana State Bar Association is considering adopting an amendment to its Rules of Professional Conduct that would define professional misconduct as including:

conduct in connection with the practice of law that the lawyer knows or reasonably should know involves discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability.  This rule does not prohibit legitimate advocacy when race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability are issues,nor does it limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.

This is a narrower version of ABA Model Rule 8.4(g) which the ABA House of Delegates adopted in 2016.  Last week, the Louisiana Attorney General's Office issued Attorney General's Opinion 17-0114 which concludes that the ABA version of the Model Rule is likely unconstitutional under the First and Fourteenth Amendments, and that while Louisiana's proposed version seeks to avoid many of the constitutional problems, it still suffers from some of the same vagueness and overbreadth issues as does the ABA rule.

In addition to finding that the ABA Model Rule is overbroad and vague, the Opinion also concluded that it violates associational and religious liberty protections, saying in part:

Lawyers participate in a wide variety of associations that engage in expressive conduct which could run afoul of ABA Model Rule 8.4(g), including faith-based legal organizations and activist organizations that promote a specific political or social platform....

ABA Model Rule 8.4(g) could also result in lawyers being punished for practicing their religion.  The United States Supreme Court specifically noted in Obergefell v. Hodges that "those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned."  However this type of advocacy appears to be prohibited by ABA Model Rule 8.4(g).... Under Rule 8.4(g), a lawyer who acts as a legal advisor on the board of their church would be engaging in professional misconduct if they participated in a march against same-sex marriage or taught a class at their religious institution against divorce....

AP reports on the Attorney General's Opinion.

9th Circuit: Facebook Is Immune From Liability For Blocking Access To Sikh Group's Page

In Sikhs for Justice, Inc. v. Facebook, Inc., (9th Cir., Sept. 13, 2017), the U.S. 9th Circuit Court of Appeals affirmed a California federal district court's dismissal of a religious discrimination claim against Facebook. (See prior posting.) In the lawsuit, brought by a Sikh human rights group, plaintiffs contend that Facebook violated the public accommodation provisions of the 1964 Civil Rights Act when it blocked access to SJF's Facebook page in India.  The suit contends that Facebook collaborated with the government of India in retaliating against SFJ for its online campaign complaining about the treatment of Sikhs and promoting an independent Sikh state.  The 9th Circuit held that Facebook is immune from civil liability under Section 230 of the Communications Decency Act, and that Title II of the 1964 Civil Rights Act does not provide an exception to this immunity.

Former USCIRF Commissioner Cromartie Dies

A press release yesterday from the U.S. Commission on International Religious Freedom reported that former USCIRF Commissioner Michael Cromartie died on Aug. 28. The release said in part:

Mr. Cromartie was a prolific writer who edited more than a dozen books on religion and politics.  He also served as a primary source for the media as reporters sought to understand the intersection of politics and religion.  He has been described as being part of a wave of evangelical Christians who believed that their faith required an active engagement in both politics and public life.

The New York Times (Sept. 1) carried his Obituary.

Animal Rights Group Sues Police Over Lax Enforcement Against Kapparot Ritual

As the Jewish High Holidays approach, animal rights groups in California are again (see prior posting) attempting to stop the practice of using chickens for the pre-Yom Kippur ritual of kapparot. The complaint (full text) in Animal Protection and Rescue League v. City of Los Angeles, (CD CA, filed 9/12/2017), contends that the the Los Angeles and Irvine police departments are violating the Establishment Clause by "actively protecting, encouraging and ratifying illegal conduct solely because it is motivated by religious belief." Plaintiffs say they want to make citizens' arrests of those who kill and discard chickens in their presence, but that police are deployed in large numbers to prevent such arrests. They say that under California Penal Code Secs. 597(a) and 599c, all intentional killing of animals, except when used for food, are outlawed. Orange County Register reports on the lawsuit. [Thanks to Steven H. Sholk for the lead.]

European Court Affirms Jurisdiction of Ecclesiastical Courts

In Nagy v. Hungary, (ECHR, Sept. 14, 2017), the Grand Chamber of the European Court of Human Rights, by a vote of 10-7, upheld the exclusive jurisdiction of ecclesiastical courts over contractual disputes that are matters of ecclesiastical law.  In the case, a pastor in the Reformed Church of Hungary was suspended, and ultimately removed, from his position through church disciplinary proceedings because of statements he had made in a local newspaper.  He then sued in civil courts for compensation that he says he was owed for the periods prior to his termination.  When lower courts dismissed his claims, he argued that this violated his right under Article 6(1) of the European Convention on Human Rights to a fair trial by an independent and impartial tribunal established by law in determining his civil rights.  The European Court's majority opinion held in part:

... [A]pplicant’s claim ... concerned an assertion that a pecuniary claim stemming from his ecclesiastical service, governed by ecclesiastical law, was actually to be regarded as falling under the civil law.... Given the overall legal and jurisprudential framework existing in Hungary ..., the domestic courts’ conclusion that the applicant’s pastoral service had been governed by ecclesiastical law and their decision to discontinue the proceedings cannot be deemed arbitrary or manifestly unreasonable.... [This] Court cannot but conclude that the applicant had no “right” which could be said, at least on arguable grounds, to be recognised under domestic law. To conclude otherwise would result in the creation by the Court, by way of interpretation of Article 6 § 1, of a substantive right which had no legal basis in the respondent State.

Four separate dissenting opinions were also filed. ADF issued a press release regarding the decision.

6th Circuit Rejects Law Prof's Claim That $666 Raise Was Retaliatory As "Mark of the Beast"

In Lifter v. Cleveland State University, (6th Cir., Sept. 12, 2017), the U.S. 6th Circuit Court of Appeals affirmed an Ohio federal district court's dismissal of a lawsuit by two former Cleveland State University Law School professors (husband and wife) who claim that the dean had retaliated against them because of the husband's activity in unionizing the faculty.  Plaintiff Sheldon Gelman argued that part of the retaliation was awarding him a raise of only $666 for the year.  He contended that not only did he deserve more, but that the dean chose the $666 figure as an intentional invocation of the biblical "mark of the beast."  The court dismissed Gelman's claim, saying:

Construing the facts in the light most favorable to Gelman, he cannot show that his union organizing activities were a substantial or motivating factor in these alleged injuries.

Law.com reports on the decision.

Santa Fe Diocese Releases List of Priests Found Guilty of Sex Abuse

On Tuesday, the Catholic Archdiocese of Santa Fe released the names of 74 priests, deacons and brothers who have been found guilty of sexually abusing a child, either by the Church (canon law), the State (criminal law), or both. The list also includes those who were laicized after being accused of sexually abusing a minor, and those publicly accused where criminal proceedings were not completed (often because of death).  AP, reporting on the release, says that it comes after decades of pressure from victims and their families.

Congress Sends Joint Resolution Condemning Hate Groups To President

Yesterday Congress gave final passage to Senate Joint Resolution 49 (full text) "condemning the violence and domestic terrorist attack that took place during events between August 11 and August 12, 2017, in Charlottesville, Virginia."  The Joint Resolution, that now goes to President Trump for his signature, reads in part:

Congress ... urges— ... the President and his administration to—

(i) speak out against hate groups that espouse racism, extremism, xenophobia, anti-Semitism, and White supremacy; and (ii) use all resources available to the President and the President’s Cabinet to address the growing prevalence of those hate groups in the United States; and 

[urges] the Attorney General to work with (i) the Secretary of Homeland Security to investigate thoroughly all acts of violence, intimidation, and domestic terrorism by White supremacists, White nationalists, neo-Nazis, the Ku Klux Klan, and associated groups in order to determine if any criminal laws have been violated and to prevent those groups from fomenting and facilitating additional violence....

Politico reporting on the action by Congress adds:

Though resolutions are often passed to offer the sense of the House or Senate on various issues, they rarely head to the president for consideration. But backers of this measure structured it as a "joint resolution," a move ensuring that passage would require Trump to weigh in on an issue that has dogged his presidency for weeks.

Malaysian Prime Minister Urges Trump To Support Moderate Muslim Regimes

Yesterday President Trump welcomed Malaysian Prime Minister Najib Abdul Razak to the White House.  Both leaders spoke briefly (full text of remarks) in the Cabinet Room before their private meeting. Among other things, Razak urged Trump to support progressive Muslim regimes, saying in part:

Daesh, IS, Al-Qaeda, Abu Sayyaf  ... are the enemy of the United States, they are also the enemy of Malaysia, and we will do our part to make sure that our part of the world is safe.

We will also contribute in terms of the ideological warfare because you need to win the hearts and minds.  And the key to it is to support moderate and progressive Muslim regimes and governments around the world, because that is the true face of Islam; that is the authentic face of Islam.  The more you align with progressive and moderate regimes, the better it would be in terms of winning the hearts and minds of the Muslim world.

President Trump responded: "Right".

Israel's High Court Strikes Down 2015 Law On Draft Exemptions For Ultra-Orthodox

Israel's High Court of Justice yesterday struck down a 2015 law that was intended to reverse attempts enacted a year earlier to increase the number of ultra-Orthodox young people who are drafted into the Israel Defense Forces.  As reported by Times of Israel:

Eight justices, led by Chief Justice Miriam Naor, ruled that the current arrangement was increasing the inequality in the “draft burden,” rather than reducing it, which was the law’s stated purpose and the grounds for its constitutionality. That made it an “unconstitutional law,” the justices ruled.

One dissenter, Justice Noam Solberg, argued that the law had not been in effect long enough to determine its effect on the military draft, and therefore no determination could yet be made about its constitutionality.

The Court gave the Knesset one year to come up with a different arrangement.  Ultra-Orthodox members of the Knesset strongly criticized the decision.  For example, Deputy Education Minister Meir Porush of the United Torah Judaism party said:

The High Court of Justice’s judicial activism completely empties Knesset legislation of importance, turning it into a dead letter. Today’s decision just drives another stake into the coffin. The High Court of Justice is eager for the apocalypse.

Jockeying In Travel Ban Litigation Continues In Supreme Court

As previously reported, last week the U.S. 9th Circuit Court of Appeals in State of Hawaii v. Trump affirmed a district court's decision on the scope of President Trump's second travel ban executive order.  The decision essentially found that the executive branch had read an earlier order by the Supreme Court too narrowly both as to the travelers and refugees who could be excluded under the travel ban pending a Supreme Court decision on the merits. In a filing on Sept. 11, the government asked Justice Kennedy, the Circuit Justice for the 9th Circuit, to stay the portion of the 9th Circuit's mandate dealing with refugees who are still covered by the travel ban. The next day, Justice Kennedy issued an order temporarily staying that portion of the 9th Circuit's mandate. Today, the state of Hawaii filed its response, arguing in part:

The Government has returned to this Court, for the third time, to ask that it superintend the application of the injunction in this case. The first time the Government was here ... this Court set forth the legal standard that governs the injunction of Executive Order 13,780 ...: Any foreign national with a “bona fide relationship” with a U.S. entity—that is, a relationship that is “formal, documented, and formed in the ordinary course”—is protected from EO-2’s travel and refugee bans.... The second time, on July 19, 2017, the Court denied the Government’s request to “clarify” that the injunction does not apply to refugees who have received a formal assurance from a refugee resettlement agency, instead directing the Ninth Circuit to resolve the question....

The Ninth Circuit faithfully applied both of those directives. It determined ... that a refugee has a “bona fide” relationship with a resettlement agency that signs a formal, written assurance to provide for her housing, food, and other essentials of life. And the Ninth Circuit rejected the Government’s invitation to treat this Court’s July 19, 2017 stay as the merits decision the Court had declined to issue; instead, it performed the diligent analysis that is expected of an appellate court.

SCOTUSblog reports on developments.

UPDATE: On Sept. 12, the U.S. Supreme Court issued an order (full text) staying the 9th Circuit's mandate as it applies to refugees covered by a formal assurance of placement from a resettlement agency.  Refugees from countries covered by the travel ban whose only connection to the United States is such an assurance of placement will be able to be excluded, at least until the Supreme Court decides on the validity of the travel ban on the merits this term.

Pope Criticizes Trump's Action On DACA

Pope Francis yesterday on his way back to the Vatican from his trip to Colombia was sharply critical of President Trump's recent move to repeal DACA. As reported by Newsweek, the Pope said in part:

The president of the United States presents himself as pro-life, and if he is a good pro-lifer, he understands that family is the cradle of life and its unity must be protected.

India's Chief Justice Tells Authorities To Rein In Cow Protection Vigilantes

According to Reuters, India's Supreme Court last week ordered both the federal and state governments to appoint police officers to stop cow protection groups from taking the law into their own hands. Chief Justice Dipak Misra told governments to take this step after a hearing on three public interest lawsuits. There has been a wave of attacks by Hindu activists on Muslims accused of killing cows or eating beef. Police have processed over three dozen cases in the past two years. Several Indian states impose criminal punishment for slaughtering cows, which are sacred to Hindus.

South African Court Reconciles Marriage Law With Gender Identity Change Statute

Under South African law, marriages may be performed only for heterosexual couples; however civil unions, which create the same legal rights as a marriage, may be performed for either heterosexual or same-sex couples.  South Africa also has a statute which allows transgender individuals to register their gender transition with the government if they have undergone medical or surgical treatment to alter their sexual characteristics. Registration leads to a change in the gender listed on birth certificates and in the population register. In KOS v. Minister of Home Affairs, (S.A. High Ct., Sept. 6, 2017), a South African trial court was faced with the question of how to treat couples who had entered a heterosexual marriage (not a civil union), where subsequently the husband underwent gender transitioning and registered the change in gender identity with the government.

The government argued that in such cases, a gender change should not be able to be registered since it would result in a same-sex marriage, which the law does not recognize. In one of the cases, the government had instead cancelled the couple's marriage record and insisted that they enter a civil union.  The court however, disagreed concluding that the couples must be allowed to register the gender reassignment and remain married.  Refusing to do this, the court said, violates the rights under the South African Constitution to administrative justice and to equality and human dignity. GroundUp reports on the decision.

Recent Articles of Interest

From SSRN:

• D. A. Jeremy Telman, The Free Exercise Clause and Hans Kelsen's Modernist Secularism, (Hans Kelsen in American–Selective Affinities and the Mysteries of Academic Influence (Springer 2016)).
• Michel Rosenfeld, The Conscience Wars in Historical and Philosophical Perspective: The Clash between Religious Absolutes and Democratic Pluralism, (The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Cambridge University Press 2018) (Susanna Mancini & Michel Rosenfeld, eds.)).
• Barry W. Bussey, The Charter Is Not a Blueprint for Moral Conformity, (August 31, 2017).
• Harold Anthony Lloyd, It's a Full Moon Tonight: Speaker Meaning and the Interpretation and Construction of Executive Orders (with Related Reflections on Legislative Speaker Meaning), (September 5, 2017).

From SSRN (Islamic Law);

• Fajri Matahati Muhammadin & Fathimatush Sholihah, Towards a United Islamic Identity in the Making of International Law, (International Journal of Business, Economics, and Law, Vol 9 (5), 2016).
• Fajri Matahati Muhammadin & Thara Kunarti Wahab, Prospects and Challenges of Fiqh al-Jihad in Modern Warfare, (Conference Proceeding of Konferensi Nasional Perbandingan Hukum Indonesia, Universitas Airlangga, Surabaya, Indonesia (2017)).
• Fajri Matahati Muhammadin, Dian Agung Wicaksono,  Ola Anisa Ayutama & Almonika Cindy Fatika Sari, Lashing in Qanun Aceh and the Prohibition Against Torture and Cruel Treatment in the Convention Against Torture, (Conference Proceeding, Aceh Development International Conference, Selangor, Malaysia (2017)).
• Fajri Matahati Muhammadin, Refuting Da’Esh Properly: A Critical Review of the 'Open Letter to Baghdadi', (Journal of International Humanitarian Action, Vol I: 11 (2016)).
• Fajri Matahati Muhammadin, Comparing International Humanitarian Law and Islamic Law on War Captives: Observing ISIS, (Jurnal Dauliyah, Vol 2 (2016)).

From SmartCILP:

• Laurence Winer & Nina J. Crimm, A Perspective on Suitable Latitude for Religious Establishments. 49 Arizona State Law Journal 223-253 (2017).
• Stephane Mechoulan, France Bans the Veil: What French Republicanism Has to Say About It, 35 Boston University International Law Journal 223-284 (2017).
• Rena M. Lindevaldsen, When the Pursuit of Liberty Collides with the Rule of Law, 11 Liberty University Law Review 667-721 (2017).
• James A. Davids, The Role of Worldview in the Judicial Decisions of Justice John Paul Stevens, 11 Liberty University Law Review 723-764 (2017).
• Jonathan Rauch, David C. Baum Memorial Lecture. Gay Rights, Religious Liberty, and Nondiscrimination: Can a Train Wreck be Avoided?, 2017 University of Illinois Law Review 1195-1207.
• Brett H. McDonnell, Between Sin and Redemption: Duty, Purpose, and Regulation in Religious Corporations, 74 Washington & Lee Law Review 1043-1088 (2017).

U.S. Plans To Return Retrieved Jewish Archive To Iraq

According to a JTA report last week, an Iraqi Jewish Archive found by U.S. troops in the basement of the Iraqi secret services headquarters in Baghdad 14 years ago, will be returned to Iraq next year. According to JTA:

The archive was brought to America in 2003 after being salvaged by U.S. troops. It contains tens of thousands of items including books, religious texts, photographs and personal documents. Under an agreement with the government of Iraq, the archive was to be sent back there, but in 2014 the Iraqi ambassador to the U.S. said its stay had been extended. He did not say when the archive was to return....

In the U.S., the artifacts were restored, digitalized and exhibited under the auspices of the National Archives in Washington, D.C.

Jewish legislators and some Jewish groups are pressing the State Department to negotiate a new agreement to keep the collection in the United States or at some other location where it is available to Iraqi Jews-- all but a handful of whom have now left Iraq. [Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Nunez v. Wertz, 2017 U.S. Dist. LEXIS 142825 (MD PA, Sept. 1, 2017), a Pennsylvania federal district court permitted a Muslim inmate to move ahead with his complaint that his rights under RLUIPA were violated when he was not permitted to wear his pants with legs rolled up to expose his ankles, except during religious services.

In Riley v. Franke, 2017 U.S. Dist. LEXIS 142971 (ED WI, Sept. 5, 2017), a Wisconsin federal district court dismissed a Muslim inmate's claim that a correctional officer engaged in religious discrimination by dropping his Ramadan meals on the floor.

In Troutman v. Mutayoba, 2017 U.S. Dist. LEXIS 144100 (SD IL, Sept. 6, 2017), an Illinois federal district court allowed an inmate to move ahead with his complaint that authorities refused to provide him with a diet consistent with his Native American religious beliefs.

In Thomas v. Pingotti, 2017 U.S. Dist. LEXIS 144173 (ND NY, Sept. 6, 2017), a New York federal district court allowed a Muslim inmate to move ahead with his claim that during his keeplock confinement he was not allowed to attend Jum'mah services,  or the prayer and festival to break Ramadan.

In Gambino v. Payne, 2017 U.S. Dist. LEXIS 144337 (WD NY, Sept. 1, 2017), a New York federal magistrate judge in a suit brought by an inmate who was in the process of converting to Judaism recommended dismissing his complaint that showers with inadequate privacy violated his free exercise rights, but allowed him to move ahead with his claim against certain defendants that he was purposely served contaminated kosher meals which defendants refused to replace.

In Meza v. California Department of Corrections & Rehabilitation, 2017 U.S. Dist. LEXIS 144415 (ED CA, Sept. 6, 2017), dismissed with leave to amend a Catholic inmate's complaint that he was not allowed to attend a funeral outside of prison because of his alleged gang affiliation.

In Brim v. Donovan, 2017 U.S. Dist. LEXIS 144497 (W WI, Sept. 7, 2017), a Wisconsin federal district court allowed a Muslim inmate to proceed with a complaint that his name was removed from the congregate services pass list for 90 days and his name was not put on the 2015 Ramadan list.

In Allah v. Annucci, 2017 U.S. Dist. LEXIS 145104 (SD NY, Sept. 7, 2017), a New York federal district court allowed an inmate to move ahead with his claims that he was not allowed to attend two Shi'ite holy day events.

DOJ Supports Christian Baker In Amicus Brief Filed With Supreme Court

In an amicus brief filed in the U.S. Supreme Court on Sept. 7 in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the U.S. Department of Justice sided with the Christian bakery owner who refused to design and create a cake for a same-sex wedding.  The brief (full text) argues:

Heightened scrutiny is appropriate at least where a law both compels the creation, for a particular person or entity, of speech or of a product or performance that is inherently communicative, and compels the creator’s participation in a ceremony or other expressive event....

Public accommodations laws compel expression— whether speech or expressive conduct— when they mandate the creation of commissioned goods or the provision of commissioned services that are inherently communicative. That situation might arise if a public accommodations law were applied to painters, photographers, poets, actors, musicians, or other professional artists. Assuming that those artists offer their creative services to the public, a State might attempt to bar a painter who agrees to paint a custom portrait of an opposite-sex couple at their wedding from declining to paint a same-sex couple, or vice versa. Or it might attempt to bar a freelance graphic designer who agrees to design fliers for the upcoming meetings of a Jewish affinity group from declining to do so for a neo-Nazi group or the Westboro Baptist Church. So long as the artist offers to produce expression for a fee, a public accommodations law might purport to restrict her ability to determine which art she will create and for whom....

A public accommodations law exacts a greater First Amendment toll if it also compels participation in a ceremony or other expressive event. That participation may be literal, as in the case of a wedding photographer who attends and is actively involved with the wedding itself. Or that participation may be figurative, as when a person designs and crafts a custom-made wedding ring that performs an important expressive function in the ceremony. Either way, such forced participation intensifies the degree of governmental intrusion.

Some 15 other amicus briefs in support of petitioner have also been filed. Links to them are available on SCOTUSblog's case page.  The due date for amicus briefs in support of respondent has not yet arrived. Christian News reports on the filing of the amicus brief.

No RLUIPA Violations In Denial of Variance For Personal Chapel

In Milosavlejevic v. City of Brier, (WD Wash., Sept. 7, 2017), a Washington federal district court held that the city of Brier, Washington did not violate RLUIPA when it denied petitioner a height variance so he could build a personal Serbian Orthodox chapel with a 40-foot dome on his property.  The court held that the city had not substantially burdened petitioner's free exercise, saying that he has "ready alternative places of worship at his disposal." It also rejected his RLUIPA equal terms and his Sec. 1983 discrimination claims.

NY Appeals Court Rules On Custody After Divorce of Hasdic Jewish Couple

In Weisberger v. Weisberger, (NY App., Aug. 16, 2017), a New York appellate court modified a trial court's custody order in a divorce proceeding.  At issue was the party's original agreement regarding the Jewish religious upbringing of their children. That agreement provided that the mother would raise the children in the "Hasidic practices of ultra Orthodoxy." The parties had divorced after the mother revealed that she was attracted to women rather than men.  When the mother changed the family's religious practices (and also began living with a transgender man), the trial court awarded the father full custody of the children.  The appeals court modified that order, returning custody to the mother with increased visitation rights for the father, and provided the father would have custody of the children during Jewish holidays.  It also ruled:

While we respect the parties' right to agree to raise their children in a chosen religion ... the weight of the evidence does not support the conclusion that it is in the children's best interests to have their mother categorically conceal the true nature of her feelings and beliefs from them at all times and in all respects, or to otherwise force her to adhere to practices and beliefs that she no longer shares.... 

This is not to say that it would be in the children's best interests to become completely unmoored from the faith into which they were born and raised.... [I]t is in the children's best interests to continue to permit the father to exercise final decision-making authority over the children's education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices.... [W]e deem it appropriate to direct the mother to make all reasonable efforts to ensure that the children's appearance and conduct comply with the Hasidic religious requirements of the father and of the children's schools while the children are in the physical custody of their father or their respective schools. Further, in light of the mother's proposal ... to keep a kosher home and to provide the children exclusively with kosher food, we find that it would be in their best interests for her to do so.... Except for these specified matters, we otherwise modify the religious upbringing clause to allow each parent to exercise his or her discretion while the children are in his or her care or custody.

JTA reported on the decision in an article published this week. [Thanks to Rabbi Michael Simon for the lead.]

9th Circuit Affirms Enforceable Scope of Travel Ban

In State of Hawaii v. Trump, (9th Cir., Sept. 7, 2017), the U.S. 9th Circuit Court of Appeals affirmed a federal district court's decision on the scope of President Trump's second travel ban executive order. The court affirmed the lower court's injunction barring enforcement of the Executive Order against

(1) grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and (2) refugees who have formal assurances from resettlement agencies or are in the U.S. Refugee Admissions Program (“USRAP”) through the Lautenberg Amendment.

Honolulu Star Advertiser has more on the decision.

Nominees For Federal Bench In Texas Have Religious Liberty Defense Background

Dallas News reports that among the 16 judgeship nominations announced by the White House yesterday are two nominations to Texas federal district courts of individuals with extensive backgrounds in issues of religious liberty.  Jeff Mateer, currently First assistant Attorney General of Texas, was previously general counsel and executive vice president of the First Liberty Institute. Matthew J. Kacsmaryk is currently Deputy General Counsel to First Liberty Institute.  First Liberty describes itself as "the largest legal organization in the nation dedicated exclusively to protecting religious liberty for all Americans."

Australia's Top Court Upholds Planned Mail Survey of Voters On Same-Sex Marriage

In Wilkie v. Commonwealth of Australia, (High Ct. Australia, Sept. 7, 2017), Australia's highest court unanimously upheld the government's plan to conduct a voluntary survey by mail of the country's voters on whether same-sex marriage should be legalized.  At issue in the case was whether the government acted properly when it used a law permitting expenditures which are urgent and unforeseen to fund the survey.  As reported by news.com.au:

Ballots with the question, “Should the law be changed to allow same-sex couples to marry?” will be sent to households across the nation on September 12....

If a majority of people vote in favour, a vote will then be held in parliament which [Prime Minister Malcolm] Turnbull says he expects will make same-sex marriage legal. If Australians vote no, Mr Turnbull has said the parliamentary vote will not proceed.

The postal survey was conceived after Australia's Senate voted against government sponsored legislation for a binding plebiscite. Interestingly, advocates of marriage equality were among those challenging the plebiscite, arguing that Parliament should legalize same-sex marriage without this preliminary vote. (Marriage Equality Information Sheet).  Law & Religion Australia last month had a lengthy post on the religious liberty implications of the substantive legislation that is being considered.

7th Circuit Nominee Questioned On Religious Beliefs and Judicial Duties

The Senate Judiciary Committee yesterday held hearings on the nominations of four federal judges and the nominee to head the Justice Department's Civil Rights Division. (Video of full hearings).  One of the nominees, Notre Dame Law Professor Amy Coney Barrett, tapped for a seat on the U.S. 7th Circuit Court of Appeals, faced extensive questioning stemming from a background report from the Alliance for Justice. That report focuses in part on a 1998 law review article titled Catholic Judges in Capital Cases that was co-authored by Barrett.  This led to several exchanges with senators on the role a judge's religious beliefs play in judicial decision making. Daily Caller reports on the hearing.

FLDS Leader Ordered To Pay $16M In Damages To Child Victim

Utah state trial court judge Keith Kelly on Tuesday ordered Warren Jeffs (who is now in prison) and the polygamous FLDS church that he heads to pay $4 million in compensatory damages and $12 million in punitive damages to Elissa Wall who, at age 14, was pressured to marry her 19 yer old cousin. As reported by the Salt Lake Tribune:

In his ruling, Kelly noted that Jeffs controlled the church and key aspects of Wall’s life. He arranged the marriage to Alan Steed over Wall’s objections and performed the ceremony. Jeffs also pressured Wall to have children with Steed. Miscarriages and a stillbirth followed.

6th Circuit En Banc Upholds Invocations Offered By County Commissioners

In Bormuth v. County of  Jackson, (6th Cir., Sept. 6, 2017),  the U.S. 6th Circuit Court of Appeals sitting en banc in a 9-6 decision upheld the invocation practices of the Jackson County, Michigan Board of Commissioners.  At issue was whether the Establishment Clause is violated when invocations-- virtually all of them Christian-- are offered by elected Commissioners themselves rather than by a chaplain or invited clergy.  Judge Griffin's majority opinion reasoned:

There is no support for [plaintiff's] granular view of legislative prayer. In this regard, neither Marsh nor Town of Greece restricts who may give prayers in order to be consistent with historical practice....

That the prayers reflect the individual Commissioners’ religious beliefs does not mean the Jackson County Board of Commissioners is “endorsing” a particular religion, Christianity or otherwise. For one, while all the Commissioners presumably believe in Jesus Christ, the faiths of Christianity are diverse, not monolithic. The Reformation of the Sixteenth Century spawned an explosion of Christian faiths. Many of those practicing these new Christian faiths sought religious freedom in America and found refuge from the tyranny inflicted by sectarian governments....

We do not know the religious faiths of the 2013-2014 Jackson County Commissioners. The nine “Christian” Commissioners may have included Roman Catholics, Southern Baptists, Mormons, Quakers, Episcopalians, Lutherans, Methodists, and others.

Judges Rogers and Sutton wrote concurring opinions.

Judge Moore's dissent argued:

In the case before us today, the majority is dangerously close to permitting exactly what Justice Alito said Town of Greece obviously does not permit—government officials instructing citizens to participate in sectarian prayer before commencing government proceedings. There is no daylight between polling place workers asking individuals to pray before casting their ballots, as in Justice Alito’s example, and county commissioners asking individuals to pray before participating in local government meetings, as actually happens in Jackson County. This similarity underscores why a tradition that protects the Town of Greece’s right to open its meetings with solemn and respectful prayers, which was targeted at legislators and offered by clergy or volunteers from a variety of faith traditions, does not protect Jackson County’s policy to restrict its legislative prayer practice to government officials themselves asking the public to participate in exclusively Christian prayer.

Judge White wrote a separate dissenting opinion. Courthouse News Service reports on the decision.

New Report on America's Changing Religious Identity

The Public Religion Research Institute yesterday released its report on America's Changing Religious Identity.  According to the Executive Summary:

The American religious landscape is undergoing a dramatic transformation. White Christians, once the dominant religious group in the U.S., now account for fewer than half of all adults living in the country. Today, fewer than half of all states are majority white Christian. As recently as 2007, 39 states had majority white Christian populations. These are two of the major findings from this report, which is based on findings from PRRI’s 2016 American Values Atlas, the single largest survey of American religious and denominational identity ever conducted. This landmark report is based on a sample of more than 101,000 Americans from all 50 states and includes detailed information about their religious affiliation, denominational ties, political affiliation, and other important demographic attributes.

Among the other findings of the Report:

White Christians have become a minority in the Democratic Party. Fewer than one in three (29%) Democrats today are white Christian, compared to half (50%) one decade earlier. Only 14% of young Democrats (age 18 to 29) identify as white Christian. Forty percent identify as religiously unaffiliated.

White evangelical Protestants remain the dominant religious force in the GOP. More than one-third (35%) of all Republicans identify as white evangelical Protestant, a proportion that has remained roughly stable over the past decade. Roughly three-quarters (73%) of Republicans belong to a white Christian religious group.

RLUIPA Suits Over Mosque Construction Are Settled

The Justice Department announced yesterday that a settlement agreement (full text) has been reached in United States v. Bensalem Township, Pennsylvania, as well as in a private suit involving the same underlying facts. In the  suit, the Justice Department alleged that the township violated RLUIPA in denying a zoning variance to permit Bensalem Masjid to construct a mosque on property near a commercial area. (See prior posting.)  The agreements call for approval of use of the property and for the Township to amend its zoning ordinances so they are compliant with RLUIPA. Bucks County Courier Times reports on the settlement.

Jewish Woman Sues Restaurant Over Bacon In Veggie Omelet

Detroit Free Press reports that a lawsuit was filed last week in a Michigan state trial court against a Detroit area Denny's restaurant for including bacon in a vegetarian omelet.  Plaintiff Angela Montgomery is a practicing Jew who for religious reasons does not eat pork products.  Restaurant personnel had apologized to Montgomery, telling her that this was a mistake because the bacon container was next to the containers of vegetables.  A similar lawsuit was filed Aug. 22 by a Yemeni-American Muslim couple  against a Detroit area KFC that had mistakenly included bacon on their chicken sandwiches.