Monday, February 19, 2018

Recent Articles and Book of Interest

From SSRN:
From SSRN (Law of charities):
From SSRN (European law):
From SSRN (Islam and Islamic Law):
From SmartCILP:
Recent Book:

Sunday, February 18, 2018

Mother Held In Contempt For Ignoring Custody Order Giving Father Control of Religious Decisions

The Charlotte Observer last week reported that a North Carolina state Superior Court judge has upheld a contempt conviction of 36-year old Kendra Stocks for disobeying a court order regarding custody of her daughter. One day after a district court judge gave full custody, specifically including decisions concerning religion, of Stocks' 3-year old daughter to the child's father, Stocks went ahead with a previously-planned baptism of the child. She did not inform the father of the planned ceremony; he learned of it through Stocks' Facebook postings. The Superior Court reduced Stocks contempt sentence from ten to seven days. [Thanks to Scott Mange for the lead.]

Recent Prisoner Free Exercise Cases

In Mikell v. Folino, (3d Cir., Feb. 13, 2018), the 3rd Circuit affirmed the dismissal of an inmate's complaint that he did not receive Ramadan meals.

In Corbett v. Annucci, 2018 U.S. Dist. LEXIS 24291 (SD NY, Feb. 13, 2018), a New York federal district court allowed an inmate to move ahead with claims for injunctive relief alleging that he did not receive Halal meals.

In Jones v. Annucci, 2018 U.S. Dist. LEXIS 24359 (SD NY, Feb. 13, 2018), a New York federal district court dismissed an inmate's complaint that he was required to change his religious registration from Islam to Shia before he could participate in Shia religious events.

In Thomas v. Slusher, 2018 U.S. Dist. LEXIS 25916 (ND OH, Feb. 16, 2018), an Ohio federal district court dismissed an inmate's complaint that he was transferred out of the faith-based prison unit.

In Woods v. Paramo, 2018 U.S. Dist. LEXIS 25989 (SD CA, Feb. 15, 2018), a California federal court allowed an inmate to move ahead with his suit challenging delays in providing a kosher diet when he is transferred for extensive periods.

Saturday, February 17, 2018

No Free Exercise Defense To Charge of Attending Cockfight

In United States v. Cruz, (SD NY, Feb. 15, 2018), a New York federal magistrate judge rejected a Free Exercise defense to a charge of knowingly attending a cockfight in violation of 7 USC §2156.  The court said in part:
Here, Cruz has failed to make a showing that the act of engaging in animal fighting ventures stems from sincerely held beliefs that are religious in nature. Although Cruz continually refers to the “God given” dominion of man over animals, he does not identify any specific religious tenets or practices that are burdened by the statute. Nor does he identify any religion or denomination from which his beliefs derive. Indeed, in “attest[ing] to the importance of the God given rights of the American farmer,” Cruz cites quotations in which the founding fathers, including Thomas Jefferson, John Adams, James Madison, and Benjamin Franklin, exalted agriculture.... This suggests that Cruz’s beliefs are philosophical or political in nature.

Friday, February 16, 2018

Ohio Court Gives Custody of Transgender Teen To Grandparents

CNN reports that an Ohio trial court judge today gave custody of a 17-year old transgender male to his grandparents after his parents sought to bar the hormonal transition treatment strongly recommended by the youth's medical team.  Grandparents will now be able to make medical decisions for the teen.  The parents argued that the teen was not old enough to make such a consequential decision.  A county prosecutor contended that the parents objected because of their religious beliefs. Court testimony revealed that the parents, in addition to opposing treatment, refused to call the youth by his chosen name, triggering suicidal feelings in him.

EEOC Sues Over Accommodation For Religious Objection To Flu Vaccine

The EEOC announced this week that it has filed a religious discrimination lawsuit against the Owossso, Michigan based Memorial Healthcare.  The company revoked its job offer to Yvonne Bair to work as a medical transcriptionist after she objected on religious grounds to receiving an influenza shot or spray immunization.  Memorial refused her suggested accommodation of allowing her to wear a mask, even though company policy allowed masks as an alternative for those who cannot take a vaccine for other reasons.  MarketWatch reports on the lawsuit.

Thursday, February 15, 2018

4th Circuit En Banc Says Trump's Third Travel Ban Violates Establishment Clause

The U.S. 4th Circuit Court of Appeals en banc today, in opinions spanning 285 pages, affirmed a Maryland federal district court's grant of a preliminary injunction against the Proclamation setting out the third version of President Trump's travel ban.  In International Refugee Assistance Project v. Trump, (4th Cir. en banc, Feb. 15, 2018), the court by a vote of 9-4 held that plaintiffs are likely to succeed on the merits of their Establishment Clause claim.  Chief Judge Gregory's majority opinion said in part:
[H]ere the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.....
While the majority ultimately concluded that it would not rely on President Trump's pre-election statements in reaching its conclusion, it nevertheless indicated that it would have been permissible to do so:
Perhaps in implicit recognition of the rawness of the religious animus in the President’s pre-election statements, the Government urges us to disregard them. This is a difficult argument to make given that the President and his advisors have repeatedly relied on these pre-election statements to explain the President’s post-election actions related to the travel ban....  [I]n McCreary, the Supreme Court reminded us that “the world is not made brand new every morning.” .... Because “reasonable observers have reasonable memories,” these statements certainly provide relevant context when examining the purpose of the Proclamation.
The majority concluded:
In sum, the face of the Proclamation, read in the context of President Trump’s official statements, fails to demonstrate a primarily secular purpose. To the objective observer, the Proclamation continues to exhibit a primarily religious anti-Muslim objective. Our constitutional system creates a strong presumption of legitimacy for presidential action and we often defer to the political branches on issues related to immigration and national security. But the disposition in this case is compelled by the highly unusual facts here. Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is thus not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act based on “religious animosity.”
Six of the judges would have also found a likelihood of success on at least some of plaintiffs' statutory challenges to the Proclamation. Four concurring opinions and two dissenting opinions were also filed. Pursuant to an earlier U.S. Supreme Court order, the court stayed the injunction pending a petition for certiorari to the Supreme Court. Richmond Times-Dispatch reports on today's decision.

NY Governor Issues Executive Order Barring State Contracts With Entities That Fail To Address Discrimination

Earlier this month (Feb. 3), New York Governor Andrew Cuomo issued an Executive Order (full text)  directing all state agencies and departments to amend their procurement procedures to prevent entering into contracts "with entities that have institutional policies or practices that fail to address the harassment and discrimination of individuals on the basis of their age, race, creed, color, national origin, sexual orientation, gender identity, military status, sex, marital status, disability, or other protected basis."  State departments and agencies must include non-discrimination provisions in all contracts for goods, services, technology or construction.  In a press release announcing the Executive Order, the governor's office said in part:
The Trump administration has banned transgender people from serving in the U.S. Military, removed guidance nationwide that helped protect young transgender students at school, and completely removed the LGBTQ community from the National Survey of Older Americans. Additionally, in October 2017, the federal government rescinded a contraceptive coverage mandate under the Affordable Car Act. This action has permitted employers and organizations to claim broad exemptions from nondiscrimination laws, which has increased the vulnerability of LGBTQ rights.
Following these actions, which perpetuate and tolerate discrimination and taken this nation in the wrong direction, New York is once again stepping up to ensure the rights of individuals across the state are protected.
The Director of Public Policy of the Archdiocese of New York strongly criticized the new Executive Order, saying in part:
the target of this new action is the very existence of religious agencies, and the intent is to suppress any deviation from the new orthodoxy of gender and sexual ideology.
LifeSite News reports further on these developments.

Murder Convictions Reversed Because Jehovah's Witness Juror Excluded

In Pacchiana v. State of Florida, (FL App., Feb. 14, 2018), a Florida appeals court reversed and remanded for a new trial the murder conviction of defendant.  In companion decisions the convictions of Pacchiana's co-defendants were also reversed: Michael Bilotti v. Florida and in Christin Bilotti v. Florida .

In the case, defense counsel raised a Batson challenge to the state's peremptory strike of an African American member of the jury pool.  The state responded that its race-neutral reason for the challenge was that the juror is a Jehovah's Witness.  The prosecution urged that members of that religion often believe that only God judges and they cannot judge.  In the court's primary opinion, Judge Levine wrote:
the state did not provide a “legitimate” race-neutral reason..... During voir dire, the potential juror stated that she would follow the law and gave no indication that she would allow her status as a Jehovah’s Witness to affect her decisionmaking at all. In moving to strike her, the state merely relied on the juror’s membership in a religion without any testimony that it would actually affect her service as a juror, speculating that “any” practicing Jehovah’s Witness would refuse to sit in judgment of others.
Judge Levine went on to conclude that even if this was a valid religion-based challenge, Batson should be extended to religion-based peremptory challenges, as well as racial ones.  He also concluded that:
striking a potential juror from jury service based solely on membership in a religion, no matter what the juror says during voir dire, is an impermissible “religious test” in violation of the United States and Florida Constitutions.
Chief Judge Gerber concurred only in part, concluding that religion is a race-neutral response to a Batson challenge. However he agreed with Judge Levine's other conclusions that made this an impermissible religion-based challenge.  Judge May dissented, concluding that Batson should not be extended to religion-based challenges.  She also concluded that there were sufficient additional reasons given for the challenge to make it race-neutral. However in co-defendant Christin Bilotti's case, she would remand for resentencing.  The Sun Sentinel reports on the decision.

City Considering Crowdfunding To Pay Ten Commandments Litigation Costs

The Farmington Daily Times reports that the city of Bloomfield, New Mexico may take an unusual approach to paying the $700,000 attorneys' fees of the successful plaintiffs who sued it over a Ten Commandments monument. It is considering using an online crowdfunding site to raise the funds.  While Alliance Defending Freedom represented the city without charge in the litigation, now that the city has finally lost after a denial of review by the Supreme Court, it must pay the ACLU for the cost of representing plaintiffs in the litigation.  The amounts will have to come from the city's general funds if its crowdfunding initiative is unsuccessful.

Cert. Filed In Episcopal Church Property Dispute

A petition for certiorari (full text) was filed last week with the U.S. Supreme Court in Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (cert. filed 2/9/2018).  In the case, the 5-member South Carolina Supreme Court in 5 separate opinions spanning 77 pages resolved a property dispute that arose after a split in the Episcopal Church in South Carolina. (See prior posting.)  The question presented in the cert petition is:
Whether the "neutral principles of law" approach to resolving church property disputes requires court to recognize a trust on church property even if the alleged trust does not comply with the State's ordinary trust and property law.
Anglican Curmudgeon blog discusses the cert. petition at length. [Thanks to Don Nichol for the lead.]

Wednesday, February 14, 2018

7th Circuit: Hebrew Teacher Covered By "Ministerial Exception" Doctrine

In Grussgott v. Milwaukee Jewish Day School, Inc., (7th Cir., Feb. 13, 2018), the U.S. 7th Circuit Court of Appeals held that the ministerial exception applies to prevent a former Hebrew teacher in a Jewish day school from suing for her firing in violation of the Americans With Disabilities Act.  Plaintiff taught first and second graders. In concluding that plaintiff should be classified as a "ministerial" employee, the court said in part:
... it is sufficient that the school clearly intended for her role to be connected to the school’s Jewish mission....  Milwaukee Jewish Day School expected Grussgott to follow its expressly religious mission and to teach the Tal Am curriculum, which is designed to “develop Jewish knowledge and identity in [its] learners.”.... This, combined with the importance of Grussgott’s Judaic teaching experience in her being hired, confirms that the school expected her to play an important role in “transmitting the [Jewish] faith to the next generation.”.... Even if Grussgott did not know this, the purpose of the ministerial exception is to allow religious employers the freedom to hire and fire those with the ability to shape the practice of their faith. Thus, it is the school’s expectation—that Grussgott would convey religious teachings to her students— that matters.

Valentine's Day Remains Controversial In Some Conservative Muslim and Hindu Areas

Again this year, Valentine's Day is countering opposition from conservative religious leaders in some nations.  Voice of America reports that Pakistan's  Electronic Media Regulatory Authority sent instructions to radio and television stations based on a ruling last year by the Islamabad High Court that Valentine's Day is un-Islamic, spreading immorality, nudity and indecency.  PEMRA told its licensees:
Respondents are directed to ensure that nothing about the celebrations of Valentine's Day and its promotion is spread on the Electronic and Print media," PEMRA's directive stated. "No event shall be held on an official level and at any public place. PEMRA is directed to ensure that all the TV channels shall stop the promotion of Valentine's Day forthwith."
Meanwhile, the Indonesian province of South Sulawesi has also continued its ban of the celebration of Valentine's Day. (Jakarta Post). And in the Indian state of  Karnataka, Shri Ram Sena pro-Hindu activists have been burning Valentines in effigy, claiming Valentine's Day as anti-Hindu. (MeriNews). Arab News reports however that Valentine's Day has become one of the most celebrated events in Egypt.

DOE No Longer Investigating Transgender Bathroom Access Complaints

The Department of Education yesterday confirmed that it is no longer investigating civil rights complaints from transgender students who are not allowed to use restrooms that conform to their gender identity.  CNN reports that the Department, implementing its prior withdrawal of Guidance documents issued by the Obama administration, now takes the position that Title IX bars discrimination on the basis of sex, but not on the basis of gender identity. A spokesperson said that Title IX does bar discrimination against transgender students based on sex-based stereotypes, but that longstanding regulations provide that sex-segregated bathrooms are not discriminatory.

Some Allegations About CAIR Stricken From Complaint

In Citizens for Quality Education San Diego v. San Diego Unified School District, (SD CA, Feb. 12, 2018), a California federal district court granted a motion by defendants to strike from plaintiffs' complaint certain allegations regarding the Council on American-Islamic Relations (CAIR).  The motion was filed in a suit alleging that the San Diego school district's anti-Islamophobia initiative is a "discriminatory scheme that establishes Muslim students as the privileged religious group within the school community." The court held that seven allegations claiming a relationship between CAIR and terrorism should be stricken as "impertinent, immaterial, and scandalous."  The court however refused to strike claims relating to CAIR’s views on Israel and Judaism.

Limits On Krishna Lunch Program Upheld

In Krishna Lunch of Southern California, Inc. v. Gordon, (CD CA, Feb. 9, 2018), a California federal district court dismissed a challenge by a Krishna consciousness organization to a UCLA rule that limits it to holding four event per year on the campus.  The organization, Krishna Lunch, wants to offer a lunch program with sanctified food (prasada) 2 or 3 times per week.  The court rejected free exercise, free speech and expressive association challenges to the limitation.  In rejecting plaintiff's expressive conduct claim, the court said in part:
Plaintiffs’ lunch program ... is afforded First Amendment protection only if there is an intent to convey a particularized message and a great likelihood that message would be understood by those who view it....
The Court previously concluded that Plaintiffs failed to allege a great likelihood their pro-animal/antimeat message would easily be understood by those who view it.  They still have not done so....
... [T]he fact that the Assigned Area (the location where Plaintiffs would conduct prasada) is regularly used by groups for which food distribution is common ... makes it highly unlikely that the ordinary viewer would glean a particularized message from Plaintiffs’ lunch program.

Tuesday, February 13, 2018

EEOC Obtains Settlement In Religious Discrimination Suit

In a press release last week, the EEOC announced that Decostar Industries, Inc., a Georgia-based auto supplier, has settled a religious discrimination lawsuit filed against it by the EEOC.  The company refused to accommodate an employee's religious beliefs that prevented her from working between sundown Friday and sundown Saturday.  The company will pay the employee damages of $38,500 and has entered a 2-year consent decree which, among other things, requires it to adopt a new religious accommodation policy.

White House Proposed Budget Promotes School Choice

The White House yesterday released its proposed Fiscal Year 2019 Budget (full text).  The Budget includes an increase in Department of Education funding for private (as well as public) school choice, described in part as follows:
The Budget invests $1.1 billion in school choice programs to expand the range of high-quality public and private school options for students, putting more decision-making power in the hands of parents and families.  This investment serves as a down payment toward achieving the President’s goal of an annual Federal investment of $20 billion—for a total of an estimated $100 billion when including matching State and local funds—in school choice funding. The Budget requests $500 million to establish a new school choice grant program to support a wide range of innovative approaches to school choice. These include expanding existing private school choice programs to serve more low-income and at-risk students, developing new private school choice models, or supporting school districts’ efforts to adopt student-based budgeting and open enrollment policies that enable Federal, State and local funding to follow the student to the public school of his or her choice....
Americans United issued a press release criticizing school voucher programs, saying in part:
Vouchers divert desperately needed resources away from the public school system, which educates 90 percent of our students, to fund the education of a few voucher students in private, religious schools. Voucher programs are an ineffective and damaging education policy: they do not improve – and can even lead to declines in – student achievement. They also lack accountability to taxpayers, deprive students of civil rights protections and often provide students with fewer resources than they would have in public schools.
Vouchers violate the religious freedom of both taxpayers and religious schools. The government should not compel any citizen to furnish funds in support of a religion with which he or she disagrees – or even a religion with which he or she does agree. Vouchers also threaten the religious liberty and autonomy of religious schools, as vouchers open them up to government audits, monitoring, control and interference from which they would otherwise be exempt.

Monday, February 12, 2018

European Court Upholds Conviction For Inciting Hatred

In Smajić v. Bosnia and Herzegovina, (ECHR, Jan. 16, 2018), a 3-judge panel of the European Court of Human Rights rejected a claim by a a citizen of Bosnia and Herzegovina that his free expression rights were infringed when he was convicted of inciting national, racial and religious hatred, discord or intolerance.  Applicant had posted online action that should be taken by Bosniac citizens of the Brčko District in the event of war and secession of  Republika Srpska (one of the two constituent entities of Bosnia and Herzegovina).  According to the court:
The applicant had used expressions which were highly insulting to members of an ethnic group, such as “this stinking Christmas”, “get rid of the danger behind our backs”, “the city centre should then be slowly cleansed” and “Serbs who came from different shitholes live there”.
Rejecting applicant's argument that his conviction violated Art. 10 of the European Convention on Human Rights, the court said in part:
31. The Court notes that the applicant’s conviction amounted to an “interference” with his right to freedom of expression. An interference contravenes Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 of Article 10, and is “necessary in a democratic society” for achieving such an aim or aims.
32. The interference in the present case was prescribed by law; namely, it was based on Article 160 § 1 of the 2003 BD Criminal Code... Furthermore, the Court is satisfied that it pursued at least one of the legitimate aims referred to in Article 10 § 2 – namely the protection of the reputation and rights of others.
33. The Court reiterates that freedom of expression is one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10 § 2, it applies not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, but these must be construed strictly, and the need for any restrictions must be established convincingly....

Recent Articles of Interest

From SSRN:

Sunday, February 11, 2018

Recent Prisoner Free Exercise Cases

In Fox v. Lee, 2018 U.S. Dist. LEXIS 19402 (ND NY, Feb. 5, 2018), a New York federal magistrate judge recommended denying an inmate's motion for summary judgment in his suit claiming to be an adherent of the Anuaki religion and needing to wear his hair in a Mohawk cut for religious reasons.

In Blackbear v. Butler County Jail, 2018 U.S. Dist. LEXIS 19935 (D KA, Feb. 7, 2018), a Kansas federal district court rejected an inmate's complaint that for 3 weeks he was denied a special diet he needed for religious reasons.

In Sajous v. Withers, 2018 U.S. Dist. LEXIS 20191 (SD FL, Feb. 6, 2018), a Florida federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 20820, Jan. 16, 2018) and dismissed an inmate's complaint that a Haitian Flag Day ceremonial meal was canceled and that he is unable to practice his Vodoo religion.

In Williams v. Paramo, 2018 U.S. Dist. LEXIS 21191 (SD CA, Feb. 7, 2018), a California federal district court allowed an inmate to move ahead with his complaint that he was not allowed to participate in Ramadan in 2017.

In Icangelo v. County of Suffolk, 2018 U.S. Dist. LEXIS 21903 (ED NY, Feb. 8, 2018), a New York federal magistrate judge allowed an inmate to move ahead with this complaint that for 6 weeks he was not allowed to attend Jummah religious services.

Saturday, February 10, 2018

Small Church Challenges Zoning Changes

Yesterday a small church in Laurel, Maryland filed a federal lawsuit challenging a zoning code change that prevents it from using property it purchased for a non-profit coffee shop and house of worship.  The complaint (full text) in Redemption Community Church v. City of Laurel, Maryland, (D MD, filed 2/9/2018), alleges that the zoning changes violate its right under RLUIPA and the 1st Amendment.  It alleges in part:
4. ... the City changed its zoning code to ban non-profit businesses and to require small churches (those located on less than one acre) to go through an onerous, costly, and uncertain special exception process before locating in the C-V Zone.
5. Churches that can afford more than an acre, and numerous secular assemblies or institutions can locate in the C-V Zone as of right....
7. The City has discriminated against Redemption Community Church, treated it less favorably than similarly-situated secular organizations, substantially burdened the Church’s free exercise of religion, and infringed on the Church’s right to free speech, peaceable assembly, and equal protection in violation of the Church’s federal and constitutional rights.
ADF issued a press release announcing the filing of the lawsuit.

Friday, February 09, 2018

Notre Dame Announces Another Change In Contraceptive Coverage

Notre Dame University on Wednesday announced another change in its policy regarding coverage for contraceptives by its employee health care plan.  Initially Notre Dame sued challenging the Obama administration's rule which required coverage, but allowed the coverage to be provided by the insurance company or third party administrator directly rather than by the University.  When the Trump administration broadened the exemption for religious non-profits so that Notre Dame could completely opt out of contraceptive coverage, the University chose to continue with the pre-existing coverage arrangement. This led to criticism from alumni and others. (See prior posting.)  Now in a letter to faculty and staff (full text), the University has announced a different approach-- one which makes a distinction between Catholic teaching regarding contraception and Church teaching regarding abortion (presumably including contraceptive drugs that prevent implantation of a fertilized ovum).  The letter from Notre Dame's president describes the policy as follows in part:
... [A]llowing the government-funded provision of drugs and services to continue through a third party administrator would provide access to contraceptives without University funding or immediate involvement. The government-funded program, however, includes the provision of abortion-inducing drugs, which are far more gravely objectionable in Catholic teaching. Stopping any access to contraceptives through our health care plan would allow the University to be free of involvement with drugs that are morally objectionable in Catholic teaching, but it would burden those who have made conscientious decisions about the use of such drugs and rely on the University for health care benefits.
I have reached the conclusion that it is best that the University stop the government-funded provision of the range of drugs and services through our third party administrator. Instead, the University will provide coverage in the University’s own insurance plans for simple contraceptives (i.e., drugs designed to prevent conception). The University will also provide in its plans funding for natural family planning options—options that do not use artificial contraceptives but employ natural methods for preventing conception. The University’s insurance plans (as opposed to the government-funded program) have never covered, and will not cover, abortion-inducing drugs.
In response to the new policy, Bishop Rhoades, Bishop of the Diocese of Fort Wayne-South Bend where Notre Dame is located, issued a statement yesterday (full text) welcoming parts of the new policy but strongly criticizing the University's decision to directly fund contraception coverage. [Thanks to Marty Lederman via Religionlaw for the lead.] 

Hopi's Religious Concerns Give Them Standing To Challenge Snowbowl Water Use

In Hopi Tribe v. Arizona Snowbowl Resort Limited Partnership, (AZ App., Feb. 8, 2018), an Arizona state appeals court has given the Hopi tribe another chance to continue their long-running opposition to the use of recycled waste water to make artificial snow at Arizona's Snowbowl ski resort. (See prior posting).  Reversing the trial court's standing ruling, the appellate court said in part:
At issue is whether the Tribe sufficiently alleged standing to maintain a common law public nuisance claim. For a private party to bring a claim of public nuisance, it must allege both an interference with a right common to the public and a special injury different in kind from that of the public. The parties do not dispute that the Tribe sufficiently alleged that the use of reclaimed wastewater interferes with the public’s right to use and enjoy the Peaks. Because we find the Tribe sufficiently alleged the use of reclaimed wastewater causes its members a special injury, different in kind than that suffered by the general public, by interfering with places of special cultural and religious significance to the Tribe, we reverse the trial court’s dismissal....

Former Magistrate Receives Damages In Settlement Over Refusal To Perform Same-Sex Marriages

According to a press release this week from Becket, the North Carolina court system last November agreed to a settlement with a former North Carolina magistrate who was forced to resign in 2014 because of her objections to performing same-sex marriage ceremonies.  Under the settlement of a complaint filed with the EEOC, magistrate Sandra Myrick will receive $210,000 in damages and $115,000 in attorneys fees. (Full text of settlement agreement).  The settlement came 8 months after the decision by an Administrative Law Judge in Myrick v. Warren, (EEOC, March 8, 2017) holding that the EEOC has jurisdiction over Myrick's religious discrimination complaint under the Government Employees Rights Act of 1991.  The ALJ also concluded that Myrick had demonstrated a prima facie case of religious discrimination and that she had not been offered an accommodation.

Trump Speaks To National Prayer Breakfast

Yesterday President Donald Trump spoke at the 66th Annual National Prayer Breakfast in Washington, D.C. (full text of remarks). The President said in part:
Each year, this event reminds us that faith is central to American life and to liberty.  Our founders invoked our Creator four times in the Declaration of Independence.  Our currency declares, “In God We Trust.”  (Applause.)  And we place our hands on our hearts as we recite the Pledge of Allegiance and proclaim we are “One Nation Under God.”  (Applause.)
Our rights are not given to us by man; our rights come from our Creator.  (Applause.)  No matter what, no Earthly force can take those rights away.  (Applause.)  That is why the words “Praise be to God” are etched atop the Washington Monument, and those same words are etched into the hearts of our people.

DOJ Imposes More Oversight On US Attorneys In Religious Liberty Cases

In a press release last week, the Department of Justice announced an update to the United States Attorneys' Manual (full text) which adds a section titled "Associate Attorney General’s Approval and Notice Requirements for Issues Implicating Religious Liberty." In order to insure compliance with a memo on protection of religious liberty issued last October (see prior posting), DOJ's new procedures instruct U.S. Attorneys to appoint a contact person to carry out the following instructions:
Immediately inform the Office of the Associate Attorney General upon receiving service of a suit filed against the United States raising any significant question concerning religious liberty;
Coordinate decisions about merits arguments and significant litigation strategy questions in religious liberty cases with the Office of the Associate Attorney General; and
Obtain the approval of the Office of the Associate Attorney General with respect to any affirmative civil suit that impinges on rights under the Free Exercise Clause, Establishment Clause, or Religious Freedom Restoration Act.
Yesterday the Center for Inquiry issued a press release criticizing the new oversight policy.

Thursday, February 08, 2018

New Hearing Ordered On Moving Bishop Fulton J. Sheen's Remains

In a 3-2 decision in Matter of Cunningham v Trustees of St. Patrick's Cathedral, (NY App., Feb. 6, 2018), New York state's Appellate Division sent back to the trial court for further proceedings the dispute over whether the body of Archbishop Fulton J. Sheen, who died in 1979, should be moved from New York City to Illinois.  Sheen was buried in St. Patrick's Cathedral. However Sheen's niece has now petitioned the court to have Sheen's remains moved to Peoria, Illinois where Sheen's family resides and where a shrine to him is being built in anticipation of Sheen's Beatification by The Vatican. (See prior posting.)  The trial court concluded (full text of opinion) that no factual disputes existed, and granted the request to allow removal of Sheen's remains. However, on appeal the majority held that the trial court must hold a hearing to determine Sheen's wishes as to his place of burial, in light of conflicting evidence on the issue. New York Times reports on the decision.

Senate's Bipartisan Budget Agreement Will Assure FEMA Assistance For Houses of Worship

The Bipartisan Budget Agreement (full text) which will be voted on today by the Senate (CNN report) includes provisions assuring that houses of worship will be able to receive disaster assistance from FEMA. The Stafford Act, Sec. 42 USC  Sec. 5172 allows federal assistance for repair or replacement of non-profit facilities damaged or destroyed by major disasters.  However, until a recent policy change by FEMA, houses of worship were excluded. (See prior posting.)  The bipartisan budget bill (Sec. 20604 at pg. 48) adds the following:
SEC. 20604. (a) DEFINITION OF PRIVATE NON PROFIT FACILITY.—
Section 102(11)(B) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122(11)(B)) is amended to read as follows:
‘‘(A) IN GENERAL.—The term ‘private nonprofit facility’ means private nonprofit educational (without regard to the religious character of the facility), utility, irrigation, emergency, medical, rehabilitational, and temporary or permanent custodial care facilities (including those for the aged and disabled) and facilities on Indian reservations, as defined by the President.
‘‘(B) ADDITIONAL FACILITIES.—In addition to the facilities described in subparagraph (A), the term ‘private nonprofit facility’ includes any private nonprofit facility that provides essential social services to the general public (including museums, zoos, performing arts facilities, community arts centers, community centers, libraries, homeless shelters, senior citizen centers, rehabilitation facilities, shelter workshops, broadcasting facilities, houses of worship, and facilities that provide health and safety services of a governmental nature), as defined by the President. No house of worship may be excluded from this definition because leadership or membership in the organization operating the house of worship is limited to persons who share a religious faith or practice.’’.
(b) REPAIR, RESTORATION, AND REPLACEMENT OF DAMAGED FACILITIES.—Section 406(a)(3) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5172(a)(3)) is amended by adding at the end the following:
‘‘(C) RELIGIOUS FACILITIES.—A church, synagogue, mosque, temple, or other house of worship, educational facility, or any other private nonprofit facility, shall be eligible for contributions under paragraph (1)(B), without regard to the religious character of the facility or the primary religious use of the facility. No house of worship, educational facility, or any other private nonprofit facility may be excluded from receiving contributions under paragraph (1)(B) because leadership or membership in the organization operating the house of worship is limited to persons who share a religious faith or practice.’’. 

Pakistani Court Sentences 31 In Lynching of Student Falsely Accused of Blashpemy

Agence France-Presse today reports that a court in Pakistan has sentenced one person to death, five others to life in prison and 25 to three years in prison in the lynching of a student who was falsely accused of blasphemy.  26 others were acquitted. According to the report:
Mashal Khan, 23, was stripped, beaten and shot by a gang made up mostly of students last April before being thrown from the second floor of his dormitory at Abdul Wali Khan University in the northwestern city of Mardan....
Around two thousand people gathered at the main entrance of Mardan city, Khan's hometown, showering the acquitted students with flowers, chanting slogans against the provincial government and demanding the release of those convicted.

Louisiana School District Sued Over Prayers and Proselytizing

Four parents yesterday filed a federal lawsuit against the Bossier Parish, Louisiana school board alleging widespread Establishment Clause violations.  The complaint (full text) in Does 1-4 v. Bossier Parish School Board, (WD LA, Feb. 7, 2018) alleges in part:
3. School officials throughout the Bossier Parish School System regularly deliver or promote the delivery of Christian prayers at school-sponsored events.  Prayers begin and often end graduation ceremonies, sporting events, sports teams’ practices and banquets, pep rallies, and student-council meetings. Many of these school-sponsored events are also held in churches, including within the sanctuary or other rooms bearing religious iconography, thus creating an atmosphere closer to Sunday school than to public school.
 4. What is more, some Bossier Parish teachers proselytize during class, pray aloud for students, require young students to memorize sectarian prayers, and tell students of all religious backgrounds that to be a good person one be Christian.  Bossier Parish teachers and administrators have also placed religious displays in their classrooms and offices, advertised events sponsored by local churches, and incorporated religious teachings, beliefs, or doctrine, like Creationism, into the curriculum. Further, some Bossier Parish teachers, staff, and administrators have endorsed and conferred special favors on sectarian religious clubs and have developed practices that expose the private beliefs of students who do not wish to participate in these organizations, subjecting these children to coercive pressure to join, and ostracization by their classmates if they do not. 
Americans United issued a press release announcing the filing of the lawsuit.

Wednesday, February 07, 2018

EEOC Wins Settlement of Religious Accommodation Lawsuit

In a January 30 press release, the EEOC announced that the logistics company  XPO Last Mile, Inc. has settled a religious discrimination suit filed by the agency.  The company will pay $94,541 in monetary relief to a job applicant whose job offer was rescinded when he informed the company that he needed to start work one day later than scheduled because of his observance of the Jewish holiday of Rosh Hashanah.  The company also entered a 3-year consent decree preventing unlawful denial of religious accommodation to employees.

Congress Holds Hearing On Preventing Mass Atrocities

Yesterday, Congress' Tom Lantos Human Rights Commission held a hearing on prevention of mass atrocities around the world. Transcripts of prepared statements by a number of witnesses and a video of the entire hearing are available on the Commission's website.  In his opening statement, Commission co-chairman James McGovern said in part:
We are persuaded that atrocities are not the product of “ancient” ethnic or religious hatreds but rather of conscious, strategic decisions by ruling elites and non-state actors to achieve specific ends. Those actors need a reason to commit atrocities, and the means and opportunity to do so. The issue becomes how to change their strategic calculus.
We think impunity is one of the elements in that strategic calculus. If the perpetrators enjoy impunity, this may be seen as a “green light” to expand a genocidal or mass atrocity campaign.

California Baker May Refuse To Create Cake For Same-Sex Wedding

A California state trial court has held that a bakery owner has the right to refuse to create a wedding cake for a same-sex couple when the owner has religious objections to same-sex marriage. The court pointed out:
The Unruh Act prohibits discrimination on the basis of religion, as well as sexual orientation.
The bakery had arranged to refer orders from same-sex couples to a competing bakery that has no objections. In Department of Fair Employment and Housing v. Miller, (CA Super., Feb. 5, 2018), the court said in part:
The right of freedom of thought guaranteed by the First Amendment includes the right to speak, and the right to refrain from speaking. Sometimes the most profound protest is silence....
No artist, having placed their work for public sale, may refuse to sell for an unlawful discriminatory purpose. No baker may place their wares in public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification.
The difference here is that the cake in question is not yet baked. The State is not petitioning the court to order defendants to sell cake. The State asks this court to compel Miller to use her talents to design and create cake she has not yet conceived with the knowledge that her work will be displayed in celebration of marital union her religion forbids. For this court to force such compliance would do violence to the essentials of Free Speech guaranteed under the First Amendment.
The Bakersfield Californian reports on the decision.

Tuesday, February 06, 2018

Israeli Rabbinical Judges Immune In State Court At Suggestion of State Department

In Ben-Hiam v. Edri, (NJ App., Feb. 5, 2018), a New Jersey appellate court held that a State Department "suggestion of immunity" in a suit against foreign officials is binding on New Jersey courts when the State Department has found that the foreign officials were acting within the scope of their authority for a foreign sovereign.  At issue is a suit brought in New Jersey against six Israeli rabbinical judges and an official of the Rabbinical Religious Courts Administration of Israel.  The suit grew out of a divorce and child custody dispute filed in Israeli courts by a couple who lived in New Jersey, but were Israeli citizens who were married in Israel and had traveled to Israel when the divorce action was filed.  While the Israeli litigation was pending, the husband (plaintiff in this case) returned to the United States.  Competing custody rulings for the couple's daughter were issued in the U.S. and Israel. The Israeli rabbinical court awarded custody of the daughter to the mother, but was unable to grant a divorce because the husband refused to grant the wife a get (Jewish divorce document).

What happened next is explained by the New Jersey court:
Israeli law gives rabbinical courts the authority to issue certain sanctions to pressure a nonconsenting spouse to give consent to a get. Accordingly, to compel plaintiff to consent to the get, the rabbinical court issued a series of escalating sanctions against plaintiff. Ultimately, the rabbinical court issued an order finding that under Jewish law, plaintiff's refusal was criminal and that Jewish persons must avoid dealing with plaintiff. That rabbinical court order was sent to plaintiff's rabbi in New Jersey, and was published on several websites.
In April 2015, plaintiff filed a civil complaint ... in New Jersey. Specifically, plaintiff contended that defendants aided and abetted in the kidnapping of his daughter, defamed him, and intentionally inflicted emotional distress on him.

European Court Upholds Company's Religiously Objectionable Ads

In Case of Sekmadienis Ltd. v. Lithuania, (ECHR, Jan. 30, 2018), the European Court of Human Rights in a Chamber Judgment held that Lithuania's State Consumer Rights Protection Authority violated a clothing company's freedom of expression when it imposed a fine because of a series of the company's ads that were seen as offending Christians. The Economist, reporting on the decision, described the ads:
The case refers to a Kalinkin campaign in 2012 which featured a bare-chested young man and a woman, both with halos: the man was sporting jeans and tattoos, and the female figure wore a white dress with a string of beads. The captions consisted of lines such as: “Jesus, what trousers!”, “Dear Mary, what a dress!” and “Jesus, Mary, what are you wearing?”
The European Court concluded that Lithuanian courts "failed to strike a fair balance between, on the one hand, the protection of public morals and the rights of religious people, and, on the other hand, the applicant company’s right to freedom of expression."  The Court issued a press release summarizing the decision. Chamber judgments may be appealed to the Grand Chamber.

Denial of Spousal Health Benefits Because of Religious-Only Ceremony May Violate Equal Protection Clause

In Ali v. Cooper, (ND CA, Jan. 30, 2018), a California federal district court refused to dismiss an equal protection claim by an employee of the Alameda Housing Authority (AHA) after her husband's health insurance coverage was terminated.  The action was taken by the Executive Director (Cooper) and Director of Human Resources (Basta) because the couple were married in a Muslim solemnization ceremony without a civil marriage certificate. Plaintiff claims that the two defendants were motivated by religious animus in singling her out and invoking a rarely used obscure policy to deny coverage. The court said in part:
Plaintiff adequately states a claim for intentional discrimination on the basis of her religion under the Equal Protection Clause against Defendants Cooper and Basta. This claim, however, is inadequately pled against the AHA ... because Plaintiff does not allege that the official marriage-certificate policy itself was motivated by animus, but rather, that the Individual Defendants’ enforcement of the policy against her was motivated by animus....
There may be an argument that Defendant’s marriage-certificate policy might not be narrowly tailored to achieve a compelling state interest if it fails to recognize a marriage that lacks a civil certificate but is nevertheless legally valid. At this time, however, Plaintiff has not alleged that her marriage was legally-valid.... Additionally, Plaintiff has not alleged that the marriage-certificate policy burdens a sincerely held religious belief. Thus, at this time, this First Amendment theory is inadequately pled.

Challenges To Placement On Terrorist Watch List Are Dismissed

In Amiri v. Kelly, (ED MI, Jan. 30, 2018), a Michigan federal district court dismissed claims challenging denial of a visa to a British national and placement of him and his wife (a permanent U.S. resident who is an Iranian national and a British citizen) on a terrorist watch list.  Plaintiffs claim that the data bases used by the government in making these decisions contain unsubstantiated information based on plaintiffs' imputed Muslim religious beliefs.  In rejecting plaintiffs' 1st Amendment challenge, the court said in part:
Plaintiffs have failed to state a claim for a violation of the establishment clause of the first amendment, as they have identified no government action with a non-secular purpose that has a principal effect of advancing or inhibiting religion, or that results in excessive government entanglement with religion..... Plaintiffs also fail to state a claim under the free exercise clause. They do not allege that they have been compelled to engage in a practice that violates their religious convictions, refrain from doing an act required by their religious convictions, or affirm or deny a belief contrary to their religious convictions. Indeed, Plaintiffs do not claim to be Muslim, but rather accuse Defendants of presuming they are Muslim.... 
Plaintiffs also fail to state an equal protection claim as they fail to allege that they have been treated differently than similarly situated individuals of a different nationality....  Nor do they allege that they are treated differently based on their religion, as they do not claim to be Muslim.

Recent Prisoner Free Exercise Cases

In Michalski v. Semple, 2018 U.S. Dist. LEXIS 13382 (D CT, Jan. 28, 2018), a Connecticut federal district court allowed a Native American inmate t move ahead with his complaint that officials refused to provide adequate winter clothing during his smudging times. It also permitted adding of a defendant to his complaint over denial of smudging.

In Stoltzfus v. Hutchins, 2018 U.S. Dist. LEXIS 14539 (SD IN, Jan. 30, 2018), an Indiana federal district court dismissed an inmate's claim that he was denied access to a Bible.

In Slater v. Askew, 2018 U.S. Dist. LEXIS 14757 (MD AL, Jan. 30, 2018), an Alabama federal magistrate judge recommended dismissing for failure to exhaust administrative remedies a Muslim inmate's complaint regarding wearing a beard, religious services and classes, religious mail, religious ID cards and other religious items.

In Staples v. Bellafonte, 2018 U.S. Dist. LEXIS 14950 (D NJ, Jan. 26, 2018), a New Jersey federal district court dismissed an inmate's free exercise and religious discrimination claims against a county jail.

In Wright v. Stallone, 2018 U.S. Dist. LEXIS 15732 (ND NY, Jan. 31, 2018), a New York federal district court issued a preliminary injunction allowing a Muslim inmate to engage in individual demonstrable prayer during outdoor recreation, but denied a preliminary injunction as to group prayer.

In Pouncil v. Sherman, 2018 U.S. Dist. LEXIS 15961 (ED CA, Jan.31, 2018), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's complaint that he was denied meals on one night of Ramadan.

Monday, February 05, 2018

Recent Articles of Interest [UPDATED]

From SSRN:
From SmartCILP:

Ministerial Exception Does Not Apply When Defendant Is Not Plaintiff's Employer

In McRaney v. North American Mission Board of the Southern Baptist Convention, Inc., (ND MS, Jan. 18, 2018), a Mississippi federal district court rejected ministerial exception and ecclesiastical abstention defenses in a suit alleging intentional interference with business relationships, defamation and intentional infliction of emotional distress. At issue was the termination of plaintiff, the executive director of the General Mission Board of the Baptist Convention for Maryland/ Delaware, at the insistence of defendant NAMB. The court held that the ministerial exception doctrine does not apply when the defendant in a lawsuit is not the employer of plaintiff. The court also held that adjudicating plaintiff's claims will not necessarily involve examination of church doctrine or internal church governance. The Message reports on the decision.

Court Stays Removal Of 50 Indonesian Christians Living In New Hampshire

In Devitri v. Cronen, (D MA, Feb. 1, 2018), a Massachusetts federal district court stayed the deportation of 50 Indonesian Christians living in New Hampshire while they seek to reopen their cases based on changed country conditions. The Indonesians, who had orders of removal issued against them, had been living under a 2010 humanitarian program called "Operation Indonesian Surrender." Last summer the government terminated the program and told petitioners that they would need to return to Indonesia within 60 days.  Petitioners say they are likely to face persecution or torture in Indonesia because of their Christian faith. AP reports on the decision.

Suit Alleges Harassing Stake Out of Jewish Religious Services By Zoning Officials

A Jan. 24 story by GannettNJ reports on a lawsuit filed by Jackson, NJ resident Isaac Tawil who alleges that Township Council Vice President Rob Nixon has prompted zoning code enforcement officers to stake out his home on Friday evenings to observe Jewish religious services there.  The lawsuit alleges that "The repeated presence of these officers had a chilling effect, was intimidating and became a form of harassment."  The suit was filed in the context of increasing tensions between longtime residents and the growing Orthodox Jewish community that is moving into the Township.

Settlement Reached In NJ Mosque Zoning Lawsuit

Jersey Journal reported last week that a settlement has been reached in Bayonne Muslims v. City of  Bayonne, a RLUIPA lawsuit filed in New Jersey federal district court last May. (See prior posting.) Under the settlement, construction of a community center and mosque will be approved by Bayonne's Zoning Board after a revised application is filed and a public meeting is held.  The city will also pay $280,000 for plaintiff's attorneys' fees and an additional $120,000 in damages.

Most of Church Director's Claims Dismissed Under Ecclesiastical Abstention Doctrine

In Kelly v. St. Luke Community United Methodist Church, (TX App., Feb. 1, 2018), a Texas state appellate court applied the ecclesiastical abstention doctrine to dismiss most of the claims brought by a fired church Director of Operations. The court said in part:
the substance of Kelly’s claims for negligence, fraud, misrepresentation, age and sex discrimination, and  defamatory statements published within the church community relates to internal matters of church governance and each of those claims is “inextricably intertwined” with those internal matters.... While the elements of those claims can be ascertained using secular principles, the application of those principles to impose civil liability on appellees would impinge upon the church’s ability to manage its internal affairs.
However the court allowed plaintiff to move ahead with her  defamation claim based on statements published to persons outside the church.

Sunday, February 04, 2018

DC Appeals Court Remands In Controversy Over Outreach To GW Jewish Students

In Steiner v. American Friends of Lubavitch (Chabad), (DC Ct. App., Feb. 1, 2018), the District of Columbia Court of Appeals found no absolute bar to enforcement of a non-compete clause in a contract of a Chabad rabbi who had been popular with Jewish students at George Washington University. However the court held that the trial court had enforced the clause too broadly.  At issue are tensions that have extended for many years between the Chabad organization and Rabbi Yehuda Steiner who had been employed to engage in campus outreach for Chabad.  After Steiner was fired, he continued his religious outreach to students. The Chabad organization brought a breach of contract action. The trial court applied the doctrine of equitable reformation to issue an injunction against Steiner, but limited non-competition to two years, to serving currently enrolled students, and to an area within one mile from campus. In this appeal, the court held:
Here, neither the noncompete as originally drafted nor the clause as reformed in the trial court‘s modified preliminary injunction contains terms that would require religious interpretation and therefore preclude a civil court‘s review of this dispute.
However the appellate court held that the trial court's injunction was too broad insofar as it limits activities that Rabbi Steiner and his wife can continue in their personal capacities, rather than through a competing organization. the court added:
More than 100 GW students signed a petition attesting to the special personal relationship they shared with their religious leader, Rabbi Steiner.  In such circumstances, the public interest may bear on the level of scrutiny we will apply to a decision to judicially modify a restrictive covenant.....
In this same vein, the profession of religious minister or rabbi is unique in that the tasks performed in an employment context overlap to a large extent with actions such a professional might undertake in his or her free time, without expectation of payment, as a member of the community engaging in religious practice or dialogue. It is thus imperative that an employer wishing to prohibit certain behavior post-termination narrowly tailor with specific language a restrictive covenant....
The court also remanded for clarification of a non-interference provision, and for a determination of whether the non-compete applies to Rabbi Steiner's wife as well.

Negligent Hiring Suit Against Catholic Diocese May Proceed

In Doe v. Norwich Roman Catholic Diocesan Corp., 2018 Conn. Super. LEXIS 45 (CT Super. Ct., Jan. 5, 2018), a Connecticut trial court refused to dismiss a suit alleging childhood sexual abuse of plaintiff at a Catholic school. The court said in part:
[P]laintiff has alleged negligent hiring and supervision of Brother Paul in his role as a school administrator, executive director, and teacher. Even if the plaintiff had alleged that Brother Paul was a priest ..., the "theological perceptions" of Brother Paul are irrelevant for the purposes of his fitness for ministry. Instead, any determination of whether the defendants evaluated Brother Paul's fitness for acting as a priest and teacher at the Academy center on his criminal conduct and/or propensity for the same.... [B]ecause the plaintiff has broadly alleged a secular negligent hiring and supervision claim as to Brother Paul's role as a school administrator, executive director, and teacher, the defendants' motion to dismiss ... is denied.

Court Enjoins Kansas Anti-Israel Boycott Law

In Koontz v. Watson, (D KA, Jan 30, 2018), a Kansas federal district court issued a preliminary injunction barring Kansas form enforcing Kan. Stat. Ann. § 75-3740f(a).  The law requires all state contractors to certify that they are not engaged in a boycott of Israel. The law was challenged by a teacher who is a member of the Mennonite church who wants to participate as a teacher trainer in the state's Math and Science Partnership program.  The court, relying on the U.S. Supreme Court's 1982 decision in NAACP v. Claiborne Hardware Co., concluded that the law infringes plaintiff's free speech rights:
Ms. Koontz, other members of the Mennonite Church, and others have “banded together” to express, collectively, their dissatisfaction with Israel and to influence governmental action.... She and others participating in this boycott of Israel seek to amplify their voices to influence change, as did the boycotters in Claiborne. The court concludes that plaintiff has carried her burden on the current motion to establish that she and others are engaged in protected activity.
The ACLU issued a press release announcing the decision, and has links to other documents in the case.