Northern Ireland Appeals Court Says Humanist Wedding Officiants Are Permitted

In In re Laura Smyth, (NI Ct. App., June 28, 2018), the Northern Ireland Court of Appeal held that the General Register Office should have granted a license under the Marriage (Northern Ireland) Order 2003 to a marriage celebrant to perform a Humanist marriage ceremony for a couple seeking it. Northern Ireland's marriage law has separate provisions for civil marriages and religious marriages. The appeals court held that it would violate the European Convention on Human Rights' conscience protections (Art. 9) and its anti-discrimination provisions (Art. 14) to deny the license.  The Humanist officiant should be licensed under the Section 31 of the Marriage Order. While that provision is usually the basis for appointing a person to solemnize a civil marriage, the Marriage Order should be read to allow the Humanist officiant to conduct a ceremony that includes readings supporting or promoting humanist beliefs. The full text of the decision is not yet available online, but a lengthy court-authorized Summary of Judgment is available. Irish Legal News reports on the decision.

Temporary Injunction Issued Against Quebec's Anti-Niqab Law

In the Canadian province of Quebec yesterday, a trial court again blocked the province's anti-niqab law from taking effect.  The law bans the both those furnishing government services, and those receiving them, from doing so with their face covered. (See prior posting.) According to Reuters:

A judge in December suspended the ban until the provincial government crafted regulations. The completed regulations, which included arrangements for individuals to obtain religious exemptions, were poised to take effect on Sunday.

But another judge on Thursday deemed the new rules confusing and ambiguous and suspended implementation again while the court challenge goes ahead.

Quebec Superior Court Judge Marc-Andre Blanchard wrote in his ruling that the law appeared on its face to violate the Canadian Charter of Rights and Freedoms, adding it could cause Muslim women “irreparable harm.”

Cert. Denied, Over 2 Dissents, In Legislative Prayer Case

The U.S. Supreme Court yesterday denied review in Rowan County, North Carolina v. Lund, (cert. denied 6/28/2018), but with Justice Thomas, joined by Justice Gorsuch, filing an opinion dissenting from the denial of certiorari. (Full text).  In the case,  the U.S. 4th Circuit Court of Appeals sitting en banc held by a 10-5 vote that the prayer practices of the Rowan County Board of Commissioners, in which commissioners themselves deliver invocations, violate the Establishment Clause. (See prior posting.) Charlotte Observer reports on the denial of certiorari and reactions to it.

Supreme Court Review Sought In Case of Football Coach Prayer

A petition for certiorari (full text) was filed with the U.S. Supreme Court this week in Kennedy v. Bremerton School District, (cert. filed 6/25/2018).  In the case, the 9th Circuit affirmed the district court's denial of a preliminary injunction sought by a Washington-state high school football coach who in a challenge to his school district was suspended for kneeling and praying on the football field 50-yard line immediately after games. (See prior posting.)  Christian News reports on the petition for review.

Supreme Court Issued Clean-Up Orders In Other Pregnancy Clinic and Travel Ban Cases

In light of Tuesday's Supreme Court decisions in the travel ban and the pro-life pregnancy center cases, yesterday the Supreme Court issued clean-up orders, remanding for consideration in light of those decisions several similar cases in which petitions for review were pending. (Order List (June 28, 2018)):

In Woman's Friend Clinic v. Becerra (Docket No. 16-1146); Livingwell Medical Clinic v. Becerra (Docket No. 16-1153); Mountain Right to Life v. Beccera  (Docket No. 17-211); the court granted certiorari, vacated 9th Circuit judgments below, and remanded for further consideration in light of National Institute of Family and Life  Advocates v. Becerra.

In International Refugee Assistance v. Trump (Docket No. 17-1194) and Trump v. International Refugee Assistance (Docket No. 17-1270), the Court granted certiorari, vacated 4th Circuit judgments below, and remanded for further consideration in light of Trump v. Hawaii.

Supreme Court Remands Case Involving Officers Ordering Suspect To Cease Praying

In Sause v. Bauer, (US Sup. Ct., June 28, 2018), the U.S. Supreme Court in a 4 page per curiam opinion granted certiorari, reversed the 10th Circuit, and remanded for further proceedings a case in which petitioner claimed that her free exercise rights were infringed when police officers in her apartment in response to a noise complaint ordered her to stop praying. The Court said in part:

There can be no doubt that the First Amendment protects the right to pray. Prayer unquestionably constitutes the “exercise” of religion. At the same time, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place. For example, if an officer places a suspect under arrest and orders the suspect to enter a police vehicle for transportation to jail, the suspect does not have a right to delay that trip by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment. When an officer’s order to stop praying is alleged to have occurred during the course of investigative conduct that implicates Fourth Amendment rights, the First and Fourth Amendment issues may be inextricable.

That is the situation here. As the case comes before us, it is unclear whether the police officers were in petitioner’s apartment at the time in question based on her consent, whether they had some other ground consistent with the Fourth Amendment for entering and remaining there, or whether their entry or continued presence was unlawful.... Without knowing the answers to these questions, it is impossible to analyze petitioner’s free exercise claim.

(See prior related posting.)

Andy Khawaja Appointed As A USCIRF Commissioner

The U.S. Commission on International Religious Freedom has announced that last week Senate Democratic Leader Charles Schumer appointed Dr. Andy Khawaja to the Commission. Khawaja is founder and CEO of an online payment service, Allied Wallet. The President and party leaders in each house of Congress appoint Commissioners to the 9-member Commission.

Two FLDS Leaders Convicted of Polygamy In Canada

AP reports that in the Canadian province of British Columbia, two leaders of the FLDS sect living in the border town of Bountiful have been sentenced by a trial court judge to house arrest after being convicted of polygamy.  61-year old Winston Blackmore, found guilty of having 24 wives, was given 6 months house arrest followed by 12 months probation and 150 hours of community service.  James Oler, who was convicted of having 5 wives, received 3 months house arrest, 12 months probation and 75 hours community service work. There are only two other convictions for polygamy in Canadian history, one in 1899 and the other in 1906.

In Israel, New Legal Hurdles To Egalitarian Prayer Space At Western Wall

Haaretz reports that Prime Minister Benjamin Netanyahu's plans to expand the area at the Western Wall that is available for egalitarian prayer has run into new legal and political hurdles.  Culture Minister Miri Regev announced yesterday that she is resigning as head of the ministerial committee charged with approving this expansion in the Robinson's Arch area of the Wall. (See prior related posting.)  Israel's Antiquities Law requires approval of the committee for construction at any archeological site.  Regev says that her conscience does not permit her to convene a committee to approve mixed-gender prayer.

Meanwhile, in April the right wing organization B'Tzedek sued the Antiquities Authority in the High Court of Justice contending that the Robinson's Arch expansion is illegal. Netenyahu is concerned that if expansion does not begin soon, the High Court will side with B'Tzedek, and that this will lead to the Court ruling instead that there should be an egalitarian prayer area as part of the main plaza of the Western Wall.  That would likely lead to a political crisis in Netanyahu's coalition government.

UPDATE: On July 3, Jerusalem Post reported:

A major step toward renovating the egalitarian prayer section of the Western Wall was taken Monday night, with the Knesset approving the transfer of authority over infrastructure changes to holy sites to Prime Minister Benjamin Netanyahu from Culture and Sport Minister Miri Regev.

Challenge To Hearing Scheduled For Rosh Hashanah Is Rejected

In Tarbutton v. Tarbutton, (LA App., June 27, 2018), a Louisiana state appeals court rejected a claim by a litigant seeking spousal support that her religious freedom rights were infringed when the trial court refused to reschedule a hearing on the matter scheduled for Rosh Hashanah.  Having already received one continuance, Brenna Tarbutton filed another motion for a continuance one day before the hearing.  Since her ex-husband refused to consent to the continuance, the court held the hearing without Brenna present.  At the hearing, it refused to admit into evidence her affidavit of income and expenses. The court said in part:

Not all burdens on religion are unconstitutional and the court may consider important governmental interests in assessing a limitation of a party’s First Amendment rights....

It was Breanna’s delay in filing her motion that required the hearing on the continuance to be held on the asserted holy day. In addition, Breanna’s claim that she was unable to file her motion sooner because of “confusion” about the date of the holy day is not plausible, since she could have consulted a calendar or a religious official to determine the date well before the afternoon prior to the hearing which had been scheduled two months earlier.

Justice Kennedy To Retire

Justice Anthony Kennedy today submitted a letter (full text) to President Trump notifying the President that he plans to move from active status to senior status on the Court as of July 31. A press release from the Supreme Court confirmed Kennedy's intent to retire.

Israel Expands Rabbinical Court Divorce Jurisdiction To Cover Recalcitrant Non-Israeli Husbands

On Monday, Israel's Knesset passed a new law giving Israeli Rabbinical Courts jurisdiction over divorces outside of Israel between non-Israelis where a Jewish husband has refused to give his estranged wife a Jewish bill of divorce (a get). The court however can act only when the husband subsequently is physically present in Israel. Jerusalem Post reports:

The legislation, which is a temporary three-year law, allows the Rabbinical Courts to hear a case involving a couple in which neither spouse is Israeli, on one of three conditions: if there is no rabbinical court where the couple lives to deal which can hear the case; the couple has not been in front of a rabbinical court for four months; or if a husband refuses to give a divorce after a rabbinical court in the Diaspora ruled that he must do so and made “reasonable efforts” to enforce its decision....

The rabbinical courts in Israel can impose sanctions on recalcitrant spouses to persuade them to divorce, such as revoking driving licenses, revoking passports, placing restrictions on their bank accounts, and even imprisoning them for extended periods of time.

But such sanctions are not at the disposal of rabbinical courts in the Diaspora since they are not state institutions....

Cert. Filed In Bladensburg Cross Challenge

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in American Legion v. American Humanist Association. In the case, the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that a 40-foot tall Latin Cross on government property created as a World War I Veterans' Memorial (Bladensburg Cross) violates the Establishment Clause.  (See prior posting.) En banc review was denied by a vote of 8-6. (See prior posting).  First Liberty Institute issued a press release announcing the filing of the cert. petition.

Notre Dame and HHS Sued Over Settlement of Contraceptive Mandate Coverage

Yesterday a group of Notre Dame undergraduate and graduate students filed suit in an Indiana federal district court against the University and the Trump Administration challenging a settlement entered last year with the University in its lawsuit over the contraceptive coverage mandate under the Affordable Care Act.  The complaint (full text) in Irish 4 Reproductive Health v. U.S. Department of Health and Human Services. (ND IN, filed 6/26/2018), contends that the settlement which exempts Notre Dame from furnishing contraceptive coverage to its students and employees where doing so would violate the University's religious tenets was entered in violations of the Administrative Procedure Act.  The settlement reflects the exemptions for religious non-profits which the Trump Administration adopted, but whose application has been enjoined nationwide by two other federal district courts.  The complaint also challenges the constitutionality of those now-enjoined rules.

According to the complaint, Notre Dame will provide some contraceptive coverage, but will require co-pays, and will refuse to cover certain IUDs and emergency contraceptives. Presumably this is an attempt to withdraw coverage of contraceptives that may prevent implantation of a fertilized egg.  Plaintiffs in the case are represented by Americans United for Separation of Church and State, the National Women’s Law Center (NWLC), the Center for Reproductive Rights and their co-counsel. NWLC issued a press release announcing the lawsuit.

Trump's Travel Ban Upheld By Supreme Court; Establishment Clause Challenge Rejected

This morning in Trump v. Hawaii, (US Sup. Ct., June 26, 2018), the U.S. Supreme Court upheld the latest version of President Trump's travel ban, rejecting Establishment Clause challenges to the ban. Chief Justice Roberts' majority opinion, joined by Justices Kennedy, Thomas, Alito and Gorsuch, said in part:

The case before us differs in numerous respects from the conventional Establishment Clause claim. Unlike the typical suit involving religious displays or school prayer, plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad. Their claim accordingly raises a number of delicate issues regarding the scope of the constitutional right and the manner of proof. The Proclamation, moreover, is facially neutral toward religion. Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements—many of which were made before the President took the oath of office. These various aspects of plaintiffs’ challenge inform our standard of review....

Nonetheless, although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen....

For our purposes today we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review.... As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds....

The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion. Plaintiffs and the dissent nonetheless emphasize that five of the seven nations currently included in the Proclamation have Muslim-majority populations. Yet that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.

The majority also used its opinion to formally reject the long-discredited Korematsu case that in 1944 upheld the internment of Japanese Americans.

Justices Kennedy and Thomas each filed a separate concurring opinion. Justice Breyer filed a dissenting opinion joined by Justice Kagan. Justice Sotomayor filed a dissenting opinion, joined by Justice Ginsburg, saying in part:

The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent. 

Supreme Court Holds California's FACT Act Violates Speech Rights of Pro-Life Clinics

The U.S. Supreme Court this morning, in a victory for pro-life pregnancy centers, decided National Institute of Family and Life Advocates v. Becerra, (US Sup. Ct., June 26, 2018).  At issue was California's FACT Act which requires licensed pregnancy counseling clinics to post and distribute a notice on the existence of publicly-funded family planning services, including contraception and abortion.  Unlicensed clinics must disseminate a notice that they and their personnel are unlicensed.  Justice Thomas, writing for the majority (Thomas, Roberts, Kennedy, Alito, Gorsuch) held that these disclosure requirements likely violate 1st Amendment free speech rights of the clinics. The Court concluded that the disclosures required of licensed clinics are content-based regulations:

... licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion—the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions—at the same time petitioners try to dissuade women from choosing that option— the licensed notice plainly “alters the content” of petitioners’ speech.

The majority then went on to largely reject the 9th Circuit's conclusion that  strict scrutiny does not apply because the regulation deals with "professional speech," saying in part:

... this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.”...

This Court has afforded less protection for professional speech in two circumstances—neither of which turned on the fact that professionals were speaking. First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their “commercial speech.” ... Second, under our precedents, States may regulate professional conduct, even though that conduct incidentally involves speech.... But neither line of precedents is implicated here....

As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.”

Turning to the required disclosures for unlicensed centers, the Court said in part:

California has not demonstrated any justification for the unlicensed notice that is more than “purely hypothetical.”

A concurring opinion by Justice Kennedy, joined by Chief Justice Roberts and Justices Alito and Gorsuch emphasizes a viewpoint discrimination argument, saying in part:

... here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.

Justice Breyer filed a dissenting opinion, joined by Justices Ginsburg, Sotomayor and Kagan, saying in part:

Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation....

If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?

2nd Circuit: Muslim Plaintiffs Can Seek Money Damages Under RFRA For No-Fly List Abuse

In Tanvir v. Tanzin, (2d Cir., June 25, 2018), the U.S. 2nd Circuit Court of Appeals held that plaintiffs asserting a claim under the Religious Freedom Restoration Act may recover money damages against federal officials sued in their individual capacities.  At issue in the case were assertions by three Muslim men who are residents of New York or Connecticut that federal law enforcement officials placed or retained them on the No Fly List because they refused, in part for religious reasons, to act as FBI informants. Courthouse News Service reports on the decision.

Supreme Court Vacates and Remands Arlene's Flowers Case

The U.S. Supreme Court today in Arlene's Flowers, Inc. v. Washington, (Docket No. 17-108, vacated 6/25/2018), (Order List), granted certiorari, vacated the judgment below and remanded the case to the Washington Supreme Court in light of  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n.  In the Arlene's Flowers case, the state of Washington's Supreme Court had upheld a trial court's decision that a florist's religiously-motivated refusal to sell arranged flowers for a same-sex wedding violates the Washington Law Against Discrimination. (See prior posting).

Report On This Year's State Religious Freedom Legislative Activity

In a June 12 report titled How 139 bills across the country are redefining religious freedom, the Deseret News has tracked all legislation affecting religious freedom passed, defeated or pending this year in state legislatures. The paper says in part:

In all, the Deseret News found 139 bills regarding religious freedom that were debated so far this year. These bills cover everything from religious clubs in elementary schools to state officials authorized to solemnize weddings, but most deal with LGBT rights, free speech, health care and adoption....

This analysis sets the stage for a six-month investigation into the state of religious freedom in America. The Deseret News will explore key conflicts affecting people of faith, sharing the stories of religious college students who feel silenced by school leaders and families caught in the middle of fights over faith-based adoption agencies.

Democrats and Republicans, young and old, once rallied around religious freedom. This project will explore why that's no longer the case.

[Thanks to Blog from the Capital for the lead.]

Recent Articles of Interest

From SSRN:

• Kaiponanea T. Matsumura, Consent to Intimate Regulation, (North Carolina Law Review, Vol. 96, No. 4, 2018).
• Margo A. Bagley, The Morality of Compulsory Licensing as an Access to Medicines Tool, (Minnesota Law Review, Forthcoming).
• Paul T. Babie, Parliamentary Prayer and the Establishment of Religion, (February 2018) 40(1) the Bulletin of the Law Society of South Australia 12-15).
• Noel D. Johnson & Mark Koyama, The State, Toleration, and Religious Freedom, (Advances in the Economics of Religion, Edited by Iyer, Rubin and Carvalho. Palgrave, 2018).
• Robert G. Natelson, Why Nineteenth Century Bans on 'Sectarian' Aid are Facially Unconstitutional: New Evidence on Plain Meaning, (19 Federalist Soc. Rev. 98 (2018)).
• Thaddeus Mason Pope, How to Respond to a Patient's Discriminatory Request for a Different Clinician, (ASCO Post (April 10, 2018)).
• Raphael Cohen-Almagor, Taking North American White Supremacist Groups Seriously: The Scope and the Challenge of Hate Speech on the Internet, (International Journal of Crime, Justice, and Social Democracy, Vol. 7, No. 2 (2018): 38-57).

From SSRN (Religious Law):

• Ghassan Abdul-Jabbar, The Major Themes of Hadith and Its Characteristics, (The Different Aspects of Islamic Culture, Vol. 1, Foundations of Islam (2016)).
• Mohammed A. Arafa, Transitional Justice, the Seeds of Change: Secular Law or Divine (Islamic) Law, Quo Vadis?, (Creighton Law Review, Vol. 9, No. 2, 2018).
• Christopher P. Guzelian, Silver: A Morally Good Money, (Procesos de Mercado, vol. 15 (2018).
• Doron M. Kalir, Rethinking Religious Objections (Old-Testament Based) to Same-Sex Marriage, (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 33, 2018, Forthcoming).
• Jonathan C. Augustine, The Fiery Furnace, Civil Disobedience and the Civil Rights Movement: A Biblical Exegesis on Daniel 3 and Letter from Birmingham Jail, (Richmond Public Interest Law Review, Vol. 21, No. 3, 2018).

From SmartCILP and elsewhere:

• Ran Hirschl, Ayelet Shachar, Competing Orders? The Challenge of Religion to Modern Constitutionalism, 85 University of Chicago Law Revies 425-455 (2018).
• J. William Callison, Dangling Threads: Hobby Lobby and Corporate Law Issues, 48 University of Memphis Law Review 447-461 (2017).
• Andrew L. Seidel, Dating God: What Is “Year of Our Lord” Doing in the U.S. Constitution?, [Abstract], 3 Constitutional Studies 129-151 (2018).

Israeli Trial Court Permits Sex-Segregated Event In City Square

In Israel today, a Tel Aviv trial court overruled the city's ban on a sex-segregated event scheduled for tomorrow in Tel Aviv's Rabin Square. The city had prohibited the event on the ground that sex segregation in the public sphere violates anti-discrimination requirements. Apparently the substantive legal issue turns on whether the event is religious (and thus has an exemption from anti-discrimination requirements) or is cultural. The court criticized the city for waiting too long to cancel the event.  Sponsored by the Messianist branch of the Chabad movement, the rally called "Messiah in the Square" is to "greet the Lubavitcher Rebbe, King Messiah." (Background.)  According to Haaretz:

The Chabad representative who presented the petition told the court that the planned barrier between men and women in the square would be 50 meters long, but separation would be voluntary and men had the option of sitting with women, as well. The judge said the barrier was for people who identified with the association and that passersby could move freely through the square.

“I don’t understand why the event should not be held the way they [Chabad] want,” [Judge] Vardi said.

Tel Aviv Mayor Ron Huldai responded Sunday to the decision by saying, “We will make sure that in the future there will be no [gender-] separated events in the city.”

Recent Prisoner Free Exercise Cases

In Solton v. Anderson, 2018 U.S. Dist. LEXIS 98239 (D KA, June 12, 2018), a Kansas federal district court concluded that defendants had not improperly denied a Muslim inmate's requests for religious materials and a religious diet.

In Degale v. McDonough, 2018 U.S. Dist. LEXIS 98549 (SD NY, June 12, 2018), a New York federal district court dismissed a Rastafarian inmate's challenge to the requirement for an initial shave of inmates to maintain a record of appearance in case of escape.

In Young v. Chuvalas, 2018 U.S. Dist. LEXIS 99618 (SD OH, June 14, 2018), an Ohio federal district court denied summary judgment to defendants in a suit by a Muslim inmate who claims he was forced to attend a Christian prison ministry event.

In Shepherd v. Smith, 2018 U.S. Dist. LEXIS 100012 (ND NY, June 13, 2018), a New York federal magistrate judge recommended that a Rastafarian inmate be allowed to move ahead with his claims against certain defendants that he did not receive a requested cold alternative diet and that there were no Rastafarian religious services available.

In Kearey v. Collier, 2018 U.S. Dist. LEXIS 99513 (SD TX, June 13, 2018), a Texas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 100014, May 8, 2018) and allowed a Taoist inmate to move ahead against two of the defendants on claims that they were denied access to a package containing eastern religious texts and videotapes; they were not permitted to practice moving meditations and yoga in a group setting; and an outside volunteer was required to supervise moving meditations.

In Greene v. Cabral, 2018 U.S. Dist. LEXIS 100408 (D MA, June 15, 2018), a Massachusetts federal district court dismissed a Jewish inmate's claim that he was not properly served sufficient kosher food and that he was denied the ability to participate in religious services led by a rabbi.

In Smith v. Drawbridge, 2018 U.S. Dist. LEXIS 100044 (WD OK, June 13, 2018), an Oklahoma federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 100732, May 22, 2018) and dismissed a Jewish inmate's complaint that numerous of his religious practices were not accommodated, including diet, religious services, religious events and apparel.  Most of his claims were dismissed for failure to exhaust administrative remedies, while his complaint regarding observance of a fast day was found not to have amounted to a substantial burden on his free exercise.

In Parker v. Baldwin, 2018 U.S. Dist. LEXIS 100749 (SD I, June 15, 2018), an Illinois federal district court allowed an inmate to move ahead with his complaint that he was wrongly disciplined for teaching the Asatru faith, holding Asatru services and teaching the runes.

In Rhoden v. Department of State Hospitals, 2018 U.S. Dist. LEXIS 100868 (ED CA, June 15, 2018), a California federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 90260, May 30, 2018), and allowed a civil detainee to move ahead on his complaint that for several months he has not been allowed a Catholic Chaplain to conduct prayer services and attend mass.

In Gholston v. Powell, 2018 U.S. Dist. LEXIS 102915 (MD GA, June 20, 2018), a Georgia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 103201, May 25, 2018) and allowed a Muslim inmate to move ahead with his complaint that he was not permitted to grow long hair and a beard.

Restrictions On Religion Around The World Continue To Increase

The Pew Forum this week released its 9th annual study of restrictions on religion imposed by countries around the world.  The 124-page report (full text) says in part:

Restrictions on religion around the world continued to climb in 2016, according to Pew Research Center’s ninth annual study of global restrictions on religion. This marks the second year in a row of increases in the overall level of restrictions imposed either by governments or by private actors (groups and individuals) in the 198 countries examined in the study.

The share of countries with “high” or “very high” levels of government restrictions – that is, laws, policies and actions by officials that restrict religious beliefs and practices – rose from 25% in 2015 to 28% in 2016. This is the largest percentage of countries to have high or very high levels of government restrictions since 2013, and falls just below the 10-year peak of 29% in 2012. 

EEOC Wins Settlement On Behalf of Hebrew Pentecostal Employee

The EEOC announced on Wednesday that it has won a settlement in a religious discrimination lawsuit brought against J.C. Witherspoon, a South Carolina-based logging company. The company fired a Hebrew Pentecostal employee because he refused to work on Saturday, his Sabbath.  The company will pay $53,000 in damages and enter a 2-year consent decree under it will make policy changes and provide training to management employees.

Religious Liberty Expert Nominated To Be Assistant Secretary of State For Human Rights

On Wednesday, President Trump announced  his intent to nominate Robert A. Destro to be Assistant Secretary of State for Democracy, Human Rights, and Labor.  Destro is Professor of Law and founding Director of the Interdisciplinary Program in Law & Religion at Catholic University's Columbus School of Law in Washington, D.C. (Biography on University's website). His publications include the book, Religious Liberty in a Pluralistic Society (Carolina Academic Press, 1996, with Michael S. Ariens). From 1983 to 1989, he served as a Commissioner on the U.S. Commission on Civil Rights.

5th Circuit: Title VII Exhaustion Requirement Is Not Jurisdictional

In Davis v. Fort Bend County, (5th Cir., June 20, 2018), the U.S. 5th Circuit Court of Appeals held that the requirement that a person exhaust administrative remedies before bringing a Title VII action is not jurisdictional. It held that in this case, defendant "forfeited its opportunity to assert this claim" by waiting 5 years and an entire round of appeals all the way to the Supreme Court to raise the defense.  At issue is whether plaintiff exhausted her remedies on her religious discrimination claim, which she had added to her sex discrimination and harassment allegations.  Reuters reports on the decision.

Judge Orders ICE To Stop Pressuring Iraqi Religious Minorities To Agree To Deportation

Last year, in exchange for Iraq being removed from President Trump's travel ban Executive Order, Iraq agreed to take back its nationals who are subject to deportation orders in the U.S.  Many of these are Chaldean Christians and members of other minority religious groups in Iraq who say they fear persecution or torture if they are returned. (See prior related posting.)  As reported by Bloomberg, a Michigan federal district court yesterday issued an order preventing ICE agents from pressuring these Iraqis to agree that they wish to be returned.  Iraq will take them back only if they sign such an agreement. Yesterday's Order (full text) in Hamama v. Adducci, (ED MI, June 20, 2018), also requires posting of notices in detention facilities holding these Iraqis informing them that they will not be penalized if they refuse to state they wish to be removed from the U.S.

Pennsylvania Supreme Court Prevents Release of Grand Jury Report On Clergy Sex Abuse

Yesterday the Pennsylvania Supreme Court issued a brief 2-paragraph Order (full text) barring release of an extensive Grand Jury report detailing sexual abuse and misconduct by priests in six Pennsylvania Catholic dioceses. The report, stemming from two years of testimony before a Cambria County grand jury, was expected to be made public shortly. According to the Morning Call, the six dioceses involved have pledged not to file legal challenges to prevent release of the report.  It is unclear who filed objections with the Supreme Court. Its Order indicates that more than one application seeking to prevent release were filed.

Father Sues Over Daycare's Policy That Disallowed Religious Jewelry

The New York Daily News reports on a lawsuit filed this week in a New York state trial court against a day care center over its policy barring students, for safety reasons, from wearing jewelry.  The school refused to allow Dmitriy Goldin's then 4-year old son to wear his Star of David necklace. According to the paper, the boy's father, who immigrated to the U.S. from Russia in 1991 because of religious persecution, argues that the daycare was required to make an exception to it no-jewelry policy to accommodate his religious beliefs:

Goldin, whose grandfather died fighting Germany in World War II, and who lost about 40 family members in the Holocaust, said he is not strict about Judaism – but wearing the Jewish star is how he and his family express their faith.

“In Russia, if you wore a Star of David back in the day, you could maybe walk 10, 15 minutes with weird looks before they’d spit on us, or cursed us out, or whatever,” he said. “In America, being able to wear the Star of David – it’s freedom.”

City Violated Establishment Clause By Acquiring Cross Site As Park Land

In Lions Club of Albany, California v. City of Albany, (ND CA, June 15, 2018), a California federal district court held that a city violated the Establishment Clause by acquiring for a public park a 1.1 acre parcel of land that includes a large cross. Originally the cross was on private property, and the Lion's Club held an easement to maintain the 20-foot high cross and to illuminate it each Christmas and Easter.  The city acquired the 1.1 acres along with adjacent land in exchange for approving a high rise project nearby. The court said in part:

While the City portrays itself as a victim of the easement, the fact is that the City must bear responsibility. To repeat, the City could have rejected the deal, burdened as it was by the easement. The First Amendment ran against the City, not the private parties. Once the City accepted title and began converting the land into a public park, it then could have solved its Establishment Clause problem by condemning the easement (and paying its value) under its power of eminent domain, selling off, if feasible, a subdivided parcel containing the cross to a private party (and keeping the rest for a park), or by possibly imposing zoning restrictions against all religious displays on public land.

Fellow Church Members File Ecclesiastical Complaint Against Attorney General Sessions

CNN reports that on Monday, 640 members of the United Methodist Church filed a formal ecclesiastical complaint (full text) against fellow church member, Attorney General Jeff Sessions.  The complaint was addressed to pastors of the churches in Mobile, Alabama and Clarendon, Virginia that Sessions attends.  The complaint, brought pursuant to Paragraph 2702.3 of the United Methodist Book of Discipline, charges Sessions with child abuse, immorality, racial discrimination and dissemination of doctrines contrary to the standards of doctrine of the United Methodist Church.  Calling for entering into a "just resolution process" with Sessions, the complaint says:

Mr. Sessions-- as a long-term United Methodist in a tremendously powerful, public position-- is particularly accountable to us, his church.  He is ours, and we are his.  As his denomination, we have an ethical obligation to speak boldly when one of our members is engaged in causing significant harm in matter contrary to the Discipline on the global stage....  [W]e believethat the severity of his actions and the harm he is causing to immigrants, migrants, refugees, and asylees calls for his church to step into a process to directly engage with him as a part of our community.

U.S. Withdraws From U.N. Human Rights Council

Secretary of State Mike Pompeo and UN Ambassador Nikki Haley announced yesterday (video of statement) that the the United States has withdrawn from the United Nations Human Rights Council. Haley said that the Council has not implemented needed reforms that have been pressed by the United States.  As reported by Vox:

Nikki Haley ... announced the decision on Tuesday evening, saying that the US could no longer be part of a UN body that was a “protector of human rights abusers, and a cesspool of political bias.”

“Look at the council membership and you see an appalling disrespect for human rights,” she said, citing member countries China, Venezuela, Russia, Cuba, the Democratic Republic of Congo, and Egypt. She went on to speak at length about how the council displayed a “chronic anti-Israel bias” and was “not worthy of its name.”

5th Circuit: Bishops Win Temporary Stay of Subpoena For E-Mails

The U.S. 5th Circuit Court of Appeals in Whole Woman's Health v. Smith, (5th Cir., June 18, 2018), has granted an emergency stay of a district court's order (see prior posting) refusing to quash a subpoena issued to the Texas Catholic Conference of Bishops.  The subpoena, in a suit challenging the constitutionality of a Texas law that requires health providers to bury or cremate fetal remains after an abortion, sought e-mails relating to burial, cremation, or disposition of fetal or embryonic tissue.  The Catholic Bishops' emergency motion for a stay (full text) argued that enforcement of the subpoena would violate their 1st Amendment rights and RFRA. Becket issued a press release announcing the 5th Circuit's action.

EEOC Sues New Mexico Diner For Failing To Accommodate Muslim Employee

The EEOC announced yesterday that it has filed a Title VII religious discrimination lawsuit against a diner in Farmington, New Mexico. The lawsuit charges that the Blue Moon Diner refused to accommodate a female Muslim employee who requested to work wearing a hijab. The suit also claims that the diner constructively discharged the employee because of her religion.

Ireland To Hold Referendum To Remove Blasphemy From Constitution

Ireland's Justice Minister announced last week that the Government has approved the holding of a referendum on a constitutional amendment to remove the offense of blasphemy from the constitution.  Currently Art. 40, Sec. 6 of Ireland's Constitution provides: "The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law." In announcing the referendum, Justice Minister Flannigan said:

In terms of Ireland’s international reputation, this is an important step.  Regrettably, there are some countries in the world where blasphemy is an offence, the punishment of which is being put to death.  In these countries, such laws are not an anachronism but a very real threat to the lives of those who do not share the views of those enforcing the laws.  Such situations are abhorrent to our beliefs and values.  By removing this provision from our Constitution, we can send a strong message to the world that laws against blasphemy do not reflect Irish values and that we do not believe such laws should exist.

Ireland's legislature must take additional steps to implement the referendum decision. [Thanks to Law & Religion UK for the lead.]

SPLC Pays $3.375M For Wrongful Inclusion On Extremist List

In a press release yesterday, the Southern Poverty Law Center issued an apology to Mr. Maajid Nawaz and his organization, the Quilliam Foundation, for wrongfully including them on its list of anti-Muslim extremists. SPLC said in part:

As part of our settlement, we have paid $3.375 million to Mr. Nawaz and Quilliam to fund their work to fight anti-Muslim bigotry and extremism. It was the right thing to do in light of our mistake and the right thing to do in light of the growing prejudice against the Muslim community on both sides of the Atlantic. We will look to our insurance carrier to cover the cost of the settlement.

Suit Over School's Curriculum on Islam Survives Motion To Dismiss On Pleadings

Hilsenrath v. School District of the Chathams, (D NJ, June 13, 2018), involves a disagreement between a school board and a parent over whether the curriculum in the middle school World Cultures and Geography course unconstitutionally promotes or endorses Islam. According to the court:

plaintiff alleges, C.H. has been exposed to two videos and a worksheet that contain materials that members of the Islamic faith use to express religious beliefs or proselytize others.’ The Complaint begins with a quotation from those materials: “May God help us all find the true faith, Islam. Ameen.” This is captioned as the Chatham school authorities’ “call for the conversion of 7th grade students.” Such materials, the Complaint alleges, have a primary purpose of promoting and advancing the Islamic religion. The Complaint also alleges that the curriculum gives insufficient attention to the Christian and Jewish religions.

The school board responded that:

The videos on Islam ... occupied a small part of the school year. They were part of a curriculum that covered many cultures and religions and would have been understood in that context.

The court refused to dismiss the complaint at the pleading stage, concluding:

However valid, or not, the defendants’ arguments may turn out to be, they furnish no basis for dismissal of the complaint. The information about the totality of the curriculum, for example, does not appear on the face of the complaint. And the sensitive balancing required by Lemon cannot be performed on the basis of mere allegations. Such considerations are simply premature.

Recent Prisoner Free Exercise Cases

In Dent v. Dennison, 2018 U.S. Dist. LEXIS 90043 (SD IL, May 30, 2018), an Illinois federal district court allowed an inmate to move ahead with his claim that he was excluded from 3 Protestant religious services in retaliation for filing a sexual harassment claim against a volunteer pastor at the prison for his anti-LGBT comments.

In Garner v. Lisenbe, 2018 U.S. Dist. LEXIS 90682 (ED MO. May 31, 2018), a Missouri federal district court dismissed an inmate's complaint that space formerly used for religious services was turned into housing units.

In Ervin v. Foxwell, 2018 U.S. Dist. LEXIS 91805 (D MD, June 1, 2018), a Maryland federal district court dismissed an inmate's complaint that he was served sausage with pork products in it for breakfast on one day.

In Savastano v. LaClair, 2018 U.S. Dist. LEXIS 93435 (ND NY, May 31, 2018), a New York federal magistrate judge recommended allowing a Muslim inmate to move ahead to seek injunctive relief on his complaint that there is no imam on staff and that he is denied a diet consistent with his religious beliefs.

In Estes v. Clarke, 2018 U.S. Dist. LEXIS 94322 (WD VA, June 5 2018), a Virginia federal district court granted summary judgment to a Jewish inmate who complained that the common fare diet does not meet the requirements for kosher food. It dismissed challenges regarding Passover, use of a Shofar and observance of fast days.

In Hill v. Tanner, 2018 U.S. Dist. LEXIS 94220 (ED LA, June 4, 2018), a Louisiana federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 95190, May 10, 2018) and held that mandatory streaming of religious services on all unit TV sets 3 times per week does not violate the Establishment or Free Exercise Clause.

In Banks v. Cuevas, 2018 U.S. Dist. LEXIS 95217 (ND OH, June 6, 2018), an Ohio federal district court, in  a suit by a Wiccan inmate who claimed interference with the practice of his religion and retaliation, held that a Bivens action for damages is not available in prisoner free exercise cases.

In Amon-Ra v. Ryan, 2018 U.S. Dist. LEXIS 96011 (D AZ, June 5, 3018), an Arizona federal district court dismissed a Muslim inmate's complaint that  he was denied a special meat for the Eid at the conclusion of Ramadan, that prison officials were one day off for their announced beginning of Ramadan and he ws not initially placed on the Ramadan turnout.

In Vick v. Core Civic, 2018 U.S. Dist. LEXIS 97658 (MD TN, June 11, 2018), a Tennessee federal district court, in a prisoner suit primarily focusing on other issues, held that an inmate can move ahead with his complaint that prisoners are not allowed to attend any religious services while housed in the RCA pod.

In Hargrove v. Frisby, 2018 U.S. Dist. LEXIS 98017 (SD OH, June 12, 2018), an Ohio federal magistrate judge recommended dismissing a Muslim inmate's complaint that while in disciplinary segregation for 3 months he could attend only 1 of the 2 types of Muslim religious services each week.

Police Misinformation To Parents Did Not Violate Their Religious Exercise Rights

Estate of Manolios v. Wickersham, (ED MI, June 13, 2018), is a suit against Macomb County, Michigan sheriff and police officers alleging numerous constitutional violations in their investigation of a fatal car accident.  The primary allegation was that authorities wrongfully identified Jonathan Manolios as the driver in order to protect the true driver who was a family friend of one of the investigating police officers. Among  the numerous allegations in the lawsuit was the following:

After the accident, Jonathan Manolios’ parents asked Defendants where their son’s body was found in relation to the crash scene. According to Plaintiffs, they sought this information because their religious beliefs required them to memorialize the location. Plaintiffs allege that Defendant Kennedy initially refused to provide this information, but then inaccurately identified the location...

The court dismissed this claim, saying:

... [T]he most that can be said of Kennedy’s alleged misconduct is that it failed to aid Plaintiffs in the practice of their religion. Plaintiffs did not know where Jonathon’s body was found after the accident regardless of what Kennedy did or did not do. As such, Plaintiffs could not have followed their religious obligation to memorialize that location even if Kennedy never provided the incorrect location.

In short, Plaintiffs identify no clearly establish law that would inform a reasonable official that the type of conduct alleged here violated Plaintiffs’ right to freely exercise their religion. For these reasons, the Court holds that Plaintiffs fail to state a viable First Amendment violation claim.

Florida Appeals Court Upholds Priest's Objections To Testifying About Statements Made In Confessional

In Ronchi v. State of Florida, (FL App., June 15, 2018), a Florida state appellate court held that it would violate Florida's Religious Freedom Restoration Act to require a Catholic priest, Fr. Vincenzo Ronchi, to testify about a sex abuse victim's statements made during a confession, even though the victim had waived the priest-penitent privilege.  The alleged abuse occurred when the victim was 7 and 13. She was 18 when the trial of her abuser was to take place. In quashing the trial court's order that the priest testify, the appellate court said in part:

.. [I]f Ronchi complies with the State’s demand that he testify as to his communications with the alleged victim during the Sacrament of Reconciliation, Ronchi would be forced to engage in conduct that is prohibited by the Catholic Church (and, indeed, would subject him to possible excommunication from the Church). Thus, the trial court’s order can only be upheld if the State establishes that coercing Ronchi’s testimony furthers a compelling governmental interest and is the least restrictive means to further that interest.

Here, it is undisputed that the State has a compelling governmental interest in prosecuting sex offenses perpetrated against children.... 

However, we disagree with the State’s contention that coercing Ronchi to testify ... would be the least restrictive means to further its compelling governmental interest of prosecuting Burton. First, as the State acknowledges, the testimony of Ronchi would, at most, be corroborative evidence.... Second, this case does not involve a child victim who, because of his or her tender age, might be unable to adequately testify as to the alleged sexual abuse. The alleged victim in this case is now an adult, and there is nothing in the record that suggests that she would be unable to testify as to the relevant events.

Canada's Supreme Court: Provinces Can Refuse Law School Accreditation Over LGBTQ Rights

In a pair of decisions today, the Supreme Court of Canada held that the bodies controlling the legal profession in British Columbia and Ontario can, without violating Canada's Charter of Rights and Freedoms, refuse to accredit Trinity Western University's proposed new law school.  At issue in Law Society of British Columbia v. Trinity Western University and in Trinity Western University v. Law Society of Upper Canada, (Sup. Ct. Canada, June 15, 2018), is the requirement by Trinity Western, an evangelical Christian university, that its students and faculty abide by a religiously-based code of conduct.  The so-called Community Covenant Agreement prohibits "sexual intimacy that violates the sacredness of marriage between a man and a woman."  In 7-2 decisions, the court concluded that the decision to refuse accreditation significantly advances the objective of maintaining equal access to and diversity in the legal profession and prevents the risk of significant harm to LGBTQ people.  In British Columbia decision, the court added:

The public confidence in the administration of justice could be undermined by the LSBC’s decision to approve a law school that forces some to deny a crucial component of their identity in the most  private and personal of spaces for three years in order to receive a legal education.

In the Ontario decision, the court said in part:

The LSUC’s decision means that TWU’s community members cannot impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm. The LSUC chose an interpretation of the public interest which mandates access to law schools based on merit and diversity, rather than exclusionary religious practices.

CBC News reports on the decision.

Court Enforces Document Subpoena Against Texas Catholic Bishops

Last year a suit was filed in Texas federal district court challenging the constitutionality of a Texas law that requires health providers to bury or cremate fetal remains after an abortion. (See prior related posting.) A preliminary injunction against enforcement of the law was issued in January.  Now, as the case moves toward trial, a federal district court has rejected a motion filed by the Texas Catholic Conference of Bishops attempting to quash a subpoena for documents.  In Whole Woman's Health v. Smith, (WD TX, June 13, 2018), the court rejected a free exercise challenge to a subpoena for e-mails relating to burial, cremation, or disposition of fetal or embryonic tissue.  The court said in part:

The documents requested do not address religious doctrine or church governance, but instead relate directly to a factual issue that will be central at trial: precisely what burial services are available, and will remain available, to abortion providers in Texas. That the primary organization presently offering to make those services available is a church does not make the relevant facts immune from discovery....

...  [E]ven if there would be some chilling effect on the members of the TCCB if the subpoenaed documents are produced—and that is doubtful—the Plaintiffs’ interest in obtaining the documents is sufficient to outweigh any such impact.

Settlement Reached In Muslim Women's Suit Against California Restaurant

A settlement agreement (full text) was reached yesterday in a lawsuit filed in May 2016 (see prior posting) by 7 Muslim women against a Laguna Beach, California restaurant.  The women claimed they were singled out because they were Muslim and were told to leave for overstaying the restaurant's 45-minute rule. The settlement is described in an ACLU press release:

Seven Muslim women ejected from an Urth Caffe restaurant by its management have obtained a settlement agreement requiring the restaurant chain to hold diversity trainings for its employees and update its policies....

Urth Caffe has also agreed, under the settlement, to clarify its seating policy to ensure it is applied consistently to all customers and to include in its employee handbook a requirement that customer diversity be respected.

The restaurant chain also agreed to open its Laguna Beach location all day on June 16 with free drinks and desserts for all customers in a public celebration of Eid al-Fitr, the end of the Muslim holy month of Ramadan.

Sessions Responds To Church Leaders' Criticism of Immigration Policy

As reported by NBC News, Attorney General Jeff Sessions yesterday in a speech to law enforcement officers in Ft. Wayne, Indiana (full text) responded to criticism from Christian evangelical groups of the Administration's policy of separating parents from children in arresting those crossing the border illegally.  Sessions said in part:

Let me take an aside to discuss concerns raised by our church friends about separating families. Many of the criticisms raised in recent days are not fair or logical and some are contrary to law.

First- illegal entry into the United States is a crime—as it should be. Persons who violate the law of our nation are subject to prosecution. I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order....

Please note, Church friends, that if the adults go to one of our many ports of entry to claim asylum, they are not prosecuted and the family stays intact pending the legal process.

The problem is that it became well known that adults with children were not being prosecuted for unlawful entry and the numbers surged from 15,000 in 2013 to 75,000 four years later....

My request to these religious leaders who have criticized the carrying out of our laws to also speak up strongly to urge anyone who would come here to apply lawfully, to wait their turn, and not violate the law.

Suit Challenges Local Bans On Conversion Therapy For Minors

A suit was filed this week in a Florida federal district court challenging the constitutionality of ordinances enacted by the city of Boca Raton and by Palm Beach county which prohibit licensed counselors from practicing conversion therapy on minors.  The complaint (full text) in Otto v. City of Boca Raton, Florida, (SD FL, filed 6/13/2018), filed on behalf of counselors and their patients, contends that the ordinances violate speech and religious exercise rights under the federal and state constitutions, as well as state statutory protection of religious exercise and other state statutory provisions. Liberty Counsel issued a press release announcing the filing of the lawsuit.

Suit Alleges Viewpoint Discrimination In Distribution of Student Activity Fees

A suit was filed yesterday against officials at Ball State University by "Students for Life at BSU" alleging, among other things, viewpoint discrimination in distribution of student activity fees.  The complaint (full text) in Students for Life at Ball State University v. Hall, (SD IN, June 13, 2018), alleges that the pro-life student group's request for $300 from student activity fees was denied, apparently under the Guideline excluding from funding "[a]ny Organization which engages in activities, advocacy, or speech in order to advance a particular political interest, religion, religious faith, or ideology."  The suit alleges that the refusal violates plaintiffs' 1st and 14th Amendment rights.  ADF issued a press release announcing the filing of the lawsuit.

Pence Addresses Southern Baptist Convention Annual Meeting

Vice President Mike Pence yesterday delivered a 35-minute address (full text) at the Southern Baptist Convention Annual Meeting in Dallas, Texas.  He said in part:

... 40 years ago this spring, I heard the very message that Southern Baptists speak so faithfully across this nation every day ...that “God so loved the world, that He gave his only begotten Son, that whosoever might believe in Him would not perish, but have everlasting life.”  And I walked the sawdust trail that night in 1978, and gave my life to Jesus Christ, and it’s made all the difference....

So thank you for carrying that timeless message everyday with such faithfulness to the American people.  The truth is, Southern Baptists have always worked to bring about renewal of America, and new beginnings.  And as I stand before you today, I believe that our nation is in the midst of a time of renewal.  And we are in the midst of a new beginning of greatness in America.

CNN reported that some in attendance "were disturbed by the overtly political tone" of much of the rest of Pence's remarks, adding:

many Southern Baptists, particularly people of color and younger members, were put off by the decision to allow Pence a platform at what's supposed to be a nonpolitical event.

Another Permanent Injunction Against Contraceptive Mandate For Religious Colleges

In yet another in a line of cases, the Trump Administration has conceded that applying the Obama-era contraceptive mandate rules to religious non-profits would violate RFRA.  This time in Dordt College v. Azar, (ND IA, June 12, 2018), an Iowa federal district court issued a permanent injunction against enforcing the rules against Dordt College and Cornerstone University to the extent that doing so would violate their religious consciences.  This specifically includes services that the schools view as abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling.  Detroit Free Press reports on the decision. Cornerstone University is in Michigan, while Dordt College is located in Iowa.

DOJ Announces New Initiative To Protect Relocation For Religious Institutions

In a press release yesterday, the Department of Justice announced a new Place To Worship Initiative:

[The Initiative] will focus on protecting the ability of houses of worship and other religious institutions to build, expand, buy, or rent facilities....

The Department will work with the United States Attorney’s Offices to strengthen awareness of the land use provisions of RLUIPA by: hosting community outreach events across the country, educating municipal officials and religious organizations about RLUIPA’s requirements, and providing additional training and resources for federal prosecutors.

Along with launching the Initiative, DOJ also announced that it has filed a RLUIPA lawsuit against Borough of Woodcliff Lake, New Jersey.  The complaint (full text) in United States v. Borough of Woodcliff Lake, (D NJ, filed 6/13/2018), contends that the town imposed a substantial burden on a Chabad synagogue when it denied it a variance to allow it to expand on its current site.  The expansion plans were developed after attempts to acquire other sites were frustrated by the Borough.  New York Post reports on the lawsuit.

New USCIRF Chair Is Tibetan Buddhist

The U.S. Commission on International Religious Freedom announced that yesterday it elected Dr. Tenzin Dorjee, a Tibetan Buddhist, as its Chair, and Kristina Arriaga and Gayle Manchin as Vice-Chairs.  Dorjee is Associate Professor of Human Communication Studies at California State University, Fullerton. He has served as translator for the Dalai Lama.

Jewish Worshipers In Nigeria Arrested; Most Later Released On Bail

The Oracle reports that in Nigeria, nine Jewish worshipers were arrested on May 13 on charges of terrorism.  Eight of the nine were released on bail on Monday.  The ninth was still held because his file had disappeared. The arrests occurred while the nine were praying at the country home of Biafran separatist leader Nnamdi Kanu who considers himself Jewish.  Defendants' lawyer accuses the state of religious persecution, and says that anyone identifying with Kanu has become the target of Nigerian security forces.

Court Says Tribe Has Standing, But Did Not Prove Its RFRA Claim

As previously reported, in March an Oregon federal magistrate judge recommended dismissing a RFRA challenge to the destruction of sacred Native American burial grounds.  In reviewing the magistrate's recommendation, the district court in Slockish v. U.S. Federal Highway Administration, (D OR, June 11, 2018) held, disagreeing with the magistrate judge, that plaintiffs have standing to bring the challenge.  However the court still held that the RFRA claim should be dismissed because plaintiffs had not established a prima facie case of a substantial burden on their religious exercise.  Reporting on the decision, KUOW News says that members of the Confederated Tribes and Bands of the Yakama Nation and members of the Confederated Tribes of Grand Ronde will appeal to the 9th Circuit.

Permanent Injunction Issued In Ethics Battle By Alabama Justice

As previously reported, in March an Alabama federal district court issued a preliminary injunction, holding that provisions in the Alabama Canons of Judicial Ethics that were invoked against Alabama Supreme Court Justice Tom Parker are unconstitutional.  At issue was a ethics complaint over comments by Parker about the impact of the U.S. Supreme Court's Obergefell decision on an earlier Alabama Supreme Court order barring probate judges from issuing licenses for same-sex marriages.  Now the parties have agreed on the scope of a permanent injunction, and this week in Parker v. Judicial Inquiry Commission of the State of Alabama, (MD AL, June 11, 2018), the court issued an opinion and the consent injunction, barring the state Judicial Inquiry Commission from enforcing Canons 1, 2A and 3A(6):

to proscribe or punish any public comment by a judge unless the public comment can reasonably be expected to affect the outcome or impair the fairness of a proceeding pending or impending in any court. Public discussion by judges or judicial candidates of an issue of public importance cannot be proscribed or punished ... merely because that issue may happen to be the subject of a pending or impending proceeding in any court.

Liberty Counsel issued a press release on the court's action.

Church Sues, Surprised By Zoning Law Change

A suit was filed last week in a North Carolina federal district court by a small church challenging the zoning regulations that prevent it from using space it rented and renovated for worship services.  The complaint (full text) in At the Cross Fellowship Baptist Church Inc v. City of Monroe, North Carolina, (WD NC, filed 6/4/2018), recounts that the church leased the space after being assured by the landlord that another church had operated there in the recent past.  However, unknown to the church, an amended zoning law had been enacted in the interim which did not include churches as a permitted use there. The complaint alleges that the zoning ordinance violates its rights under RLUIPA and under the 1st and 14th Amendments.  ADF issued a press release announcing the filing of the lawsuit.

Supreme Court Denies Review In Two Church Property Cases

Today the U.S. Supreme Court denied review in two unrelated cases involving disputes over church property after the break away of a congregation from its parent body..  It denied certiorari in Presbytery of the Twin Cities Area v. Eden Prairie Presbyterian Church, Inc., (Docket No. 17-582, cert. denied 6/11/2018) (Order List).  In the case, the Minnesota Court of Appeals held that it was proper to apply the "neutral principles of law" approach, rather than applying the ecclesiastical abstention doctrine, to decide ownership of property of a congregation which had disaffiliated from the Presbyterian Church USA. (See prior posting).

The court also denied certiorari in Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (Docket No. 17-1136, cert. denied 6/11/2018) (Order List).  In the case, the 5-member South Carolina Supreme Court in 5 separate opinions resolved a property dispute that arose after a split in the Episcopal Church in South Carolina. (See prior posting.)

Vice President Concerned About Aid To Iraqi Christians and Yazidis

Vice President Mike Pence issued a statement (full text) on Friday on promised U.S. aid to Iraq's Christian and Yazidi communities, saying in part:

To save what remains of these ancient and proud peoples, President Trump directed the United States government to stop using slow, ineffective and wasteful United Nations programs and to instead distribute assistance through USAID.... 

While progress has been made to help these beleaguered people, there is more to do to fulfill the commitments made to them and not to mention – our own consciences.

The Vice President will not tolerate bureaucratic delays in implementing the Administration’s vision to deliver the assistance we promised to the people we pledged to help.

The Vice President directed USAID Administrator Mark Green to travel to Iraq in the coming weeks to report back with an immediate comprehensive assessment...

Recent Articles and Book of Interest

From SSRN:

• Kenneth Einar Himma, An Unjust Dogma: Why a Special Right to Religion Wrongly Discriminates Against Non-Religious Worldviews, (San Diego Law Review, Vol. 54, No. 1, 2017).
• Caroline Mala Corbin, Is There Any Silver Lining to Trinity Lutheran Church, Inc. v. Comer?, (Michigan Law Review Online, Vol. 116, p. 137, 2018).
• Richard W. Garnett & Jackson C. Blais, Religious Freedom and Recycled Tires: The Meaning and Implications of Trinity Lutheran, (2016-17 Cato Supreme Court Review 105).
• Richard W. Garnett, Freedom 'for' Religion: (Yet) Another View of the Cathedral, (in Brett G. Scharffs, Asher Maoz, and Ashley Isaacson Woolley, eds., Religious Freedom and the Law: Emerging Contexts for Freedom for and Freedom From Religion (Routledge 2019 Forthcoming)).
• Nadia N. Sawicki, Disentangling Conscience Protections, (Hastings Center Report, Forthcoming).
• Richard W. Garnett, "Afterword," (in S. Hendrianto, S.J., ed., Priests, Lawyers, and Scholars: Essays in Honor of Robert J. Araujo, S.J." (Franciscan Univ. Press 2017)).
• Barry W. Bussey, The Right of Religious Hospitals to Refuse Physician-Assisted Suicide, ((2018) 85 S.C.L.R. (2d)).
• Netta Barak Corren, The War Within, (May 23, 2018).
• B. Jessie Hill, Sex, Lies, and Ultrasound, (89 University of Colorado Law Review 421 (2018)).
• Reva Siegel & Linda Greenhouse, The Unfinished Story of Roe v. Wade, (Yale Law School, Public Law Research Paper (2018)).
• Kevin M. Barry & Jennifer Levi, Blatt v. Cabela's Retail, Inc. and a New Path for Transgender Rights, (Yale Law Journal Forum, Vol. 127, p. 373, 2017).
• Albertina Antognini, Against Nonmarital Exceptionalism, (UC Davis Law Review, Vol. 51, 2018 (Forthcoming)).

From SSRN (Islamic law):

• Kerstin Steiner, Branding Islam: Islam, Law and Bureaucracies in Southeast Asia, (37(1) Current Journal of Southeast Asian Affairs (2018)).
• Dominik Müller & Kerstub Steiner, The Bureaucratisation of Islam in Southeast Asia: Transdisciplinary Perspectives,  (37 (1) Journal of Current Southeast Asian Affairs (2018)).
• Haider Ala Hamoudi & Mark Cammack, Islamic Law in Modern Courts (Introduction), (Aspen Casebook Series, 2018).

From SmartCILP and elsewhere:

• Valerie J. Munson, On Holy Ground: Church Sanctuary in the Trump Era, 47 Southwestern Law Review 49-60 (2017).
• Ian P. Farrell. Book Review. From Premodern Christianity to the Postmodern Jury. 53 Tulsa L. Rev. 247-259 (2018). 
• Jason E. Whitehead, Book Review. Faith, Reason, and Liberal Legal Neutrality, 53 Tulsa Law Review 375-393 (2018).
• Robert E. Rains, Icing on the Wedding Cake: Same-sex Marriage and Religious Objections--Is There an Accommodation That Will Make Everyone Equally Happy (Or Unhappy)?, 42 Vermont Law Review 191-225 (2017).
• Elise Goss-Alexander, Policy Focus: Women and Religious Freedom, (USCIRF, May 2018).

Recent Book:

• Mohammad Hashas, Jan Jaap de Ruiter & Niels Valdemar Vinding (eds), Imams in Western Europe: Developments, Transformations, and Institutional Challenges, (Amsterdam University Press, May 2018).

Recent Prisoner Free Exercise Cases

In Harris v. Escamilla, (9th Cir., May 24, 2018), the 9th Circuit allowed a Muslim inmate to move ahead with claims that a correctional officer intentionally desecrated his Koran.

In Broyles v. Marks, 2018 U.S. Dist. LEXIS 85486 (D KA, May 22, 2018), a Kansas federal district court dismissed an inmate's complaint that there was no variety in the kosher meals served to him.

In Adams-Bey v. Rogers, 2018 U.S. Dist. LEXIS 85754 (WD NC, May 17, 2018), a North Carolina federal district court dismissed an inmate's claim of religious discrimination. Plaintiff alleged discrimination against him for being a "Moorish-American" by seizing legal petitions.

In Murphy v. Scott, 2018 U.S. Dist. LEXIS 85907 (ED TX, May 22, 2018), a Texas federal magistrate judge dismissed a Jewish inmate's complaint that he did not receive meat-free bag meals when his unit was on lock down.

In White v. Lee, 2018 U.S. Dist. LEXIS 87067 (D SC, May 24, 2018), a South Carolina federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 87398, April 16, 2018), and dismissed without prejudice an inmate's claim of confiscation of his religious material.

In Martinez v. Arizona Department of Corrections, 2018 U.S. Dist. LEXIS 87418 (D AZ, May 23, 2018), an Arizona federal district court dismissed a Native American inmate's complaint that his medicine bag with feathers attached was missing after a search of his cell.

In Scott v. Uhler, 2018 U.S. Dist. LEXIS 88233 (ND NY, May 24, 2018), a New York federal magistrate judge recommended that a Muslim inmate be allowed to move ahead with an equal protection challenge to the cancellation of Jumm'ah services on Christmas day.

In Kelly v. Montgomery, 2018 U.S. Dist. LEXIS 88522 (SD CA, May 24, 2018), a California federal magistrate judge recommended that an inmate be allowed to move ahead with his challenge to the denial of his request to change his name to that of his step-father to honor the religious requirement to honor his father.

In Bullock v. Cohen, 2018 U.S. Dist. LEXIS 88708 (D NJ, May 29, 2018), a New Jersey federal district court dismissed without prejudice an inmate's complaint that there is no designated place to assemble for religious services.

In Muhammad v. Wheeler, 2018 U.S. Dist. LEXIS 89295 (ED AR, May 29, 2018), an Arkansas federal district court denied a stay pending appeal in a case in which it had held that authorities must provide a Muslim inmate with halal meals, including a once per day serving of meat. It issued an injunction requiring fish 3 or 4 times per week, and chicken, turkey or beef the remainder of the times.

Austria Closes 7 Mosques, Targets Up To 60 Foreign-Funded Imams

CNN  and the New York Times report that yesterday Austria's Chancellor Sebastian Kurz for the first time invoked the country's 2015 Islam Law (full text) (summary) to close seven mosques and expel up to 60 imams. The law aims at barring radical Islam and prohibits foreign funding of Islamic communities.  The Arab Cultural and Religious Community, and six mosques it operates, were ordered closed on suspicion of promoting radical Islam.  A seventh mosque operated by a far right-wing group known as the Gray Wolves was also ordered closed.  The influx of refugees from Syria since 2015 has increased the Muslim population, and Turkish-trained imams, who continue to receive funding from Turkey, now work in Austria. They are the imams being targeted.

Court Allows Archbishop Sheen's Remains To Be Moved To Illinois

A New York trial court yesterday ruled in a rather bitter dispute that the remains of the late Archbishop Fulton J. Sheen should be moved from a crypt in  New York's St. Patrick's Cathedral to a Cathedral in Peoria, Illinois, where he was ordained as a priest. (See prior related posting.) In Cunningham v. Trustees of St. Patrick's Cathedral, (NY Cty., June 8, 2018), the court (on remand from the Appellate Division) relied on the belief of Sheen's niece that the move is the only way to advance the Cause for Sheen being declared a saint.  Peoria's Bishop Daniel Jenky was the Promoter for the Cause of Sainthood for Sheen, but refused to continue his advocacy until Sheen's remains are moved.  The New York Archdiocese is not interested in promoting the sainthood Cause.  The court concluded:

The evidentiary hearing revealed that the location of Archbishop Sheen's final resting place would not have been his primary concern; his focus was on souls rather than the location of earthly remains. ...[B]ecoming a saint would allow Archbishop Sheen to accomplish his highest calling-- to reach as many believers as possible and to intercede on their behalf.

The Diocese of Peoria issued a press release reacting to the decision.  WJBC and Church Militant both reported on the decision.

New Jersey Legislature Again Votes To Ban All Marriages For Those Under 18

Yesterday the New Jersey legislature gave final passage to S-427 (full text). The bill prohibits persons under age 18 from entering into a marriage or civil union.  The bill eliminates the provisions in current law that allow persons to marry with parental consent at age 16 or with judicial approval at a younger age.  New Jersey Law Journal says that it is unclear whether Gov. Phil Murray will sign the bill.  Last year then-Governor Christie vetoed a similar bill, saying that without some exceptions it would violate religiously-based customs of some communities. (See prior posting.)

President Hosts Iftar Dinner At White House

The White House on Wednesday hosted an Iftar dinner at which President Trump delivered remarks (full text).  The President said in part:

At tonight’s dinner, we especially are pleased to welcome members of the diplomatic corps, representing our friends and partners across the globe.  And a very warm welcome to all of the ambassadors here tonight representing Muslim-majority nations....  To each of you and to the Muslims around the world: Ramadan Mubarak.

... Iftars mark the coming together of families and friends to celebrate a timeless message of peace, clarity, and love.  There is great love.  It’s a moment to call upon our highest ideals, and to give thanks for the many blessings we enjoy.  Thank you very much.

AP reports on the event, contrasting the President's welcoming remarks with anti-Muslim rhetoric used during his campaign.  Some Muslim groups, in protest, organized a "NOT Trump’s Iftar" across from the White House.