New York Issues Regulations For Review Of Religious Schools' Curricula

On Nov. 20, the New York State Education Department issued guidelines for Substantial Equivalency Review of the curriculum of non-public religious and independent schools (full text), along with related materials.  As reported by The Forward:

The regulations come years into a growing controversy over whether New York’s Hasidic yeshivas are providing education that is substantially equivalent to that offered in public schools, as is required by state law....

The guidelines ... are based on a controversial law passed as part of last summer’s budget deal.... The new law says that the state education commissioner, rather than local school districts, will determine equivalency for schools that meet certain criteria that were drawn only to include Hasidic yeshivas.

(See prior related posting.)

Should Japanese Government Pay For Shinto Royal Rites?

The Telegraph reports:

Prince Akishino, the younger son of Japan’s Emperor Akihito, has stirred controversy by suggesting that the state should not cover the cost of a Shinto religious ritual for his older brother’s accession to the Chrysanthemum Throne next year....

Instead, he said the cost of the Daijosai rite in November should come directly from the imperial family’s funds.....

Under the terms of the constitution, the government is not permitted to engage in religious activities and there are some, apparently including the prince, who believe that the government paying for the two-day Shinto Daijosai ritual runs contrary to those rules.

Hasidic Jewish School Sues For Right To Expand

A lawsuit was filed this week in a New York federal district court against the Village of Airmont charging that the village and its school board are engaged in a coordinated effort to prevent the local Hasidic Jewish community from expanding a religious school which operates on a 21-acre piece of land.  The 75-page complaint (full text) in Central UTA of Monsey v. Village of Airmont, New York, (SD NY, filed 11/28/2018), claims violations of RLUIPA, the 1st and 14th Amendments and the New York state constitution, contending:

Village officials have attempted to place a cap on the total number of Hasidic Jewish children that may be educated at Central UTA's Hasidic Jewish religious school, angry protesters have prevented a meeting of the Planning Board to consider Central UTA's application to build two new school buildings from occurring, and Village officials' political campaign advertisements paint an apocalyptic picture of what will happen if their opponents who support the rights of the Hasidic Jewish community are elected....

Defendants are using their political policymaking and enforcement authority to use the Village's zoning laws and ordinances to prevent and dissuade Hasidic Jews from joining their community and denying those families that have moved to the area their rights to school services that are guaranteed under the law.

First Liberty issued a press release announcing the filing of the lawsuit.

Hopi Tribe Loses Public Nuisance Challenge To Snowbowl Expansion

In Hopi Tribe v. Arizona Snowbowl Resort Limited Partnership, (AZ Sup. Ct., Nov. 29, 2018), the Arizona Supreme Court in a 5-2 decision, rejected the Hopi Tribe's attempt to invoke public nuisance law to challenge the sale of wastewater to make artificial snow at a ski resort on federal land.  The land has been traditionally used by the Hopi for religious and ceremonial purposes.  Under Arizona law, a private party can challenge a public nuisance only if the party can show special injury different from that suffered by the public at large. In the latest chapter of the Hopi's long-running attempt to challenge the Snowbowl expansion, the majority held that environmental damage to public land with religious, cultural, or emotional significance to the tribe is not enough to create "special injury." The majority said in part:

because a particular place’s religious importance is inherently subjective, ... courts are ill-equipped to determine whether “one form of incidental interference with an individual’s spiritual activities” should be analyzed differently from that of another....

At its core, the special injury requirement serves a gatekeeping function that prevents courts from deciding issues under the guise of public nuisance claims when such issues are best left to public officials, a pivotal principle in federal cases grappling with religious freedom challenges to public land uses.

Chief Justice Bales, joined by Justice Bolick, dissented, saying in part:

[T]he Hopi face the destruction and desecration of some of their most sacred locations and practices. This is the harm that the majority claims is no different than that suffered by the public at large.... But the general public does not have millennia of religious practice in the area that will be covered in a fine film of reclaimed sewage. Nor does the general public have rights of access and use - rooted in Hopi tradition and cultural practices - recognized by federal statutes.

Arizona Republic reports on the decision.

Suits Proliferating Against Airbnb Over West Bank Delistings

Lawsuits are proliferating against Airbnb for its decision last week to delist rentals in Israeli settlements in the West Bank.  In addition to the arbitration proceeding previously reported, a suit under the federal Fair Housing Act was filed in Delaware federal district court. Delaware is Airbnb's state of incorporation. (Reuters). According to JTA, the 18 plaintiffs in the lawsuit either own property in Israel or have rented property there in the past through Airbnb. Separately a suit was filed against Airbnb in an Israeli court alleging discrimination in violation of Israeli law, and a separate suit in Israeli courts against Human Rights Watch for its involvement in Airbnb's action is in the offing. (JTA).

Appeals Court Vacates Invalidation of California's Assisted Suicide Law

In People ex rel Becerra v. Superior Court of Riverside County, (CA App., Nov. 27, 2018), a California state appellate court issued a writ of mandate ordering the trial court to vacate its decision striking down California's End of Life Option Act.  The Act legalizes physician-assisted suicide for the terminally ill.  The trial court had held that the Act was outside the scope of the proclamation calling the special session of the legislature that passed it.  The majority in the appellate court held that plaintiffs-- doctors and a Christian medical society-- lack standing to bring the challenge.  Judge Slough, dissenting in part, argued that the court should reach the merits of the challenge to the law and should hold that the law was constitutionally enacted.  Courthouse News Service reports on the decision.

White House Christmas Decorations Unveiled

On Monday the White House issued a press release and accompanying video on the this year's White House Christmas decorations which reflect the theme "American Treasures".  The press release reads in part:

“This is a joyous time of year when we decorate the White House for the Christmas Season,” said First Lady Melania Trump. “Our theme honors the heart and spirit of the American people.  Thank you to the many volunteers and staff who worked hard to decorate the halls of the People’s House in Christmas cheer.  On behalf of my family, we wish everyone a very Merry Christmas and a Happy New Year.”

Suit Against Scranton Diocese Over Priest Sexual Abuse

In another lawsuit growing out of the Pennsylvania grand jury report released in August, a teenage sexual abuse victim-- now 29 years old-- filed suit on Tuesday against the Diocese of Scranton, three bishops, and former priest Jeffrey Paulish.  Paulish, who served several months in jail for abusing another 15-year old boy, was named in the grand jury report. According to the Pittsburgh Post-Gazette:

Lawyers say they plan to subpoena the diocese for information about Paulish’s history in the diocese.

The grand jury report found that Paulish was transferred 11 times in his 18 years as a priest and was given leaves of absence both before and after their client says he was abused. They think that could mean that current Bishop Joseph Bambera was aware of Paulish’s abusive behavior before he was arrested in 2013.

Parents Sue Archdiocese and Pre-School Over Sexual Abuse

A suit was filed yesterday in a Pennsylvania state trial court against the Archdiocese of Philadelphia and a pre-school, St. Francis Learning Center, by parents of three toddlers who were sexually abused by a lay teacher.  The suit charges that the defendants did not properly screen the teacher and did not notify parents when other children made accusations against the teacher.  The Archdiocese said it promptly reported accusations to authorities. The teacher is serving a 4 to 8 year sentence after pleading guilty. AP reports on the lawsuit.

European Court Finds Russia's Ban On Public LGBT Events A Convention Violation

In Alekseyev v. Russia, (ECHR, Nov. 27, 2018), the European Court of Human Rights in a chamber judgment by a panel of 7 judges held that Russia violated the protections on freedom of assembly (Art. 11) and the prohibition against discrimination (Art. 14) in the European Convention on Human Rights when it banned the holding of public LGBT events. It also found a violation of Art. 13's guarantee of a remedy in national courts for Convention violations. The Court emphasized that it had rendered a similar opinion in a 2010 case against Russia.  Judge Keller dissenting in part argued that damages should have been awarded in the case, rather than just entering a finding of violations of the Convention.  AP reports on the decision.

Witnesses May Take Oath on Eagle Feathers In Two More Canadian Provinces

In two more Canadian provinces, Indigenous Peoples will now have the option of taking the oath as a witness using Eagle feathers instead of a Bible.  Earlier this month, the Nova Scotia court system adopted the practice (CBC News). Yesterday it was reported that a similar step was taken at the Lethbridge, Alberta Courthouse. (CBC News).  These follow introdction of the option almost three years ago at the Ottawa, Ontario Courthouse. (CBC News).

Claim Filed Against Airbnb For Its Delisting of West Bank Rentals

As reported by the New York Times, last week Airbnb under pressure from Palestinian officials, anti-settlement advocates and human rights groups announced that it is removing listings for rentals in Israeli settlements in the West Bank.  In response, yesterday an arbitration claim (pursuant to the arbitration clause in Airbnb's terms of service) was filed against Airbnb by an Israeli company owned by a resident of New York.  The Statement of Claim (full text) in Bibliotechnical Blue & White Ltd. v. AIRBNB, Inc., (Amer. Arbitration Assoc., filed 11/26/2018) alleges in part:

Claimant recently registered as a user of Respondent's services. This was done in the City of New York. Claimant would like to purchase or purchase or lease property in Judea & Samaria and list it with Respondent's services using computer services in the City of New York. Thus, Respondent's policy is discriminatorily preventing Claimant from using Respondent's services in the City of New York....

Respondent has violated the New York City and New York State human rights laws by discriminating on the basis of religion, national origin and/or citizenship and also by engaging in a discriminatory boycott.

Legal Insurrection blog reports in more detail on the case.

Jury Awards $75,000 To Couple Whose Christmas Program Was Opposed By Homeowners Association

The Spokane Spokesman-Review reports that a federal court jury in Idaho last month awarded $60,000 in compensatory damages and $15,000 in punitive damages against a Homeowners Association that attempted to block a resident from setting up an elaborate Christmas display. The jury, in the case which attracted national media attention when filed, found that the Homeowners Association engaged in religious discrimination in violation of the Federal Fair Housing Act when it sent a letter to Jeremy and Kristy Morris telling them that if they wanted to move into the neighborhood they would need to cancel plans for their annual 5-day Christmas celebration.  The celebration features elaborate decorations, live music, and live animals, draws thousands of people, and raises money for charities benefiting children suffering from cancer and abused children. The HOA letter, in addition to claiming that the celebration would violate lighting and noise rules, added: "And finally, I am somewhat hesitant in bringing up the fact that some of our residents are non-Christians or of another faith, and I don’t even want to think of the problems that could bring up."  This was portrayed by some media as part of the so-called "war on Christmas." More details on the lawsuit and photos of the celebration are at The Daily Mail and the Coeur d'Alene Press.

New York Village Is Considering New Permit Requirement For Eruvs

According to yesterday's Times Herald-Record, the Village Board of Woodbury, New York is considering a new law (full text) that for the first time will require residents to obtain a permit in order erect an eruv that extends into any right of way. Currently the village's growing Hasidic Jewish population has erected a number of eruvs, and the new law is directed at creating some uniformity among them. A permit application (including photos) will be required to describe the location and dimensions of any eruv, and provide written consent from all homeowners whose property it would cross. The eruv (usually made of fishing line, or of markers on utility poles) would need to be between 8 and 20 feet high, and translucent or the same color as the pole to which it is attached. Non-complying eruvs could not cross any public road, and existing non-complying eruvs that do cross public roads will need to be removed within 90 days of enactment of the new law. The proposed law would also regulate cell towers being placed on utility poles.

Recent Articles and Books of Interest

From SSRN:

• Bob Rush & Steve Sanders, Brief Amici Curiae of Scholars of Law, History, Bioethics, Gender, and Sexuality in Good v. Iowa Dept of Human Resources, (November 4, 2018).
• Marc Greendorfer, Discrimination as a Business Policy: The Misuse and Abuse of Corporate Social Responsibility Programs, (November 6, 2018).
• Etienne Toussaint, The New Gospel of Wealth: On Social Impact Bonds and the Privatization of Public Good, (56 Hous. L. Rev. 153 (2018)).

From SmartCILP:

• Yehezkel Margalit, Towards Establishing Parenthood by Agreement in Jewish Law, 26 American University Journal of Gender, Social Policy and the Law 647-689 (2018).
• Yolanda Rondon, Treatment of Domestic Terrorism Court Cases: Class and Mental Health in the Criminal System, 26 American University Journal of Gender, Social Policy and the Law 741-792 (2018).
• Symposium on Families and Religion. Articles by Larry O.C. Chukwu, Patrick F. Fagan, William L. Saunders, Lynn D. Wardle. 32 Brigham Young University Journal of Public Law 191-255 (2018).

Recent and Forthcoming Books:

• Ronald Hutton, The Witch: A History of Fear, from Ancient Times to the Present, (Yale Univ. Press, Oct. 2018).
• Donald A. Westbrook, Among the Scientologists: History, Theology, and Praxis, (Oxford Univ. Press, Dec. 2018).
• Mohammad Hashim Kamali, Crime and Punishment in Islamic Law: A Fresh Interpretation, (Oxford Univ. Press, Jan. 2019).
• Giuliana Chamedes, A Twentieth-Century Crusade: The Vatican’s Battle to Remake Christian Europe, (Harvard Univ. Press, June 2019).
• Adriano Prosperi, Crime and Forgiveness: Christianizing Execution in Medieval Europe, (Harvard Univ. Press, July 2019).

Recent Prisoner Free Exercise Cases

In Johnson v. Lassiter, 2018 U.S. Dist. LEXIS 193660 (WD NC, Nov. 13, 2018), a North Carolina federal district court dismissed an inmate's complaint that he was deprived of his religious literature and, when he said he needed his religious literature, he was told that Rastafarian or Moorish Science is not a real religion.

In Scott v. Lewis, 2018 U.S. Dist. LEXIS 193870 (ED MO, Nov. 14, 2018), a Missouri federal district court allowed a Hindu inmate to move ahead with his RLUIPA action for an injunction for failure to accommodate his vegetarian religious diet.

In Collins v. Williams, 2018 U.S. Dist. LEXIS 194187 (D SC, Nov. 13, 2018), a North Carolina federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 194229, Oct. 18, 2018) and dismissed an inmate's complaint that he was denied publications, right to attend gatherings and observe holy days of Nation of Gods and Earths because the group was improperly identified as a security threat group.

In Monroe v. Tyo, 2018 U.S. Dist. LEXIS 195078 (ND NY, Nov. 14, 2018), a New York federal magistrate judge recommended that a former inmate who is Muslim be allowed to move ahead with his complaint that he was required to drink water to provide a urine sample for a drug test during Ramadan.

In Carpenter v. Itawamba County Jail, 2018 U.S. Dist. LEXIS 195849 (ND MS, Nov. 16, 2018), a Mississippi federal magistrate judge concluded that restricting an inmate's access to a Christian pastor when the inmate was not a Christian did not interfere with his free exercise rights.

In Richard v. Strom, 2018 U.S. Dist. LEXIS 196327 (D CT, Nov. 19, 2018), a Connecticut federal district court allowed a Moorish-American inmate to move ahead with claims that he was not permitted to purchase a fez or receive a book, "Nationality, Birthrights and Jurisprudence." However it dismissed his complaint that the Grand Mufti's return address was torn from correspondence he received.

In Heritage Family Church, Inc. v. Kansas Department of Corrections, 2018 U.S. Dist. LEXIS 197543 (D KA, Nov. 20, 2018), a Kansas federal district court denied a preliminary injunction to an inmate who claims that his religious exercise is burdened in various ways (including services, texts and clothing) by the refusal to recognize the Apostolic Faith.

In Hopper v. County of Riverside, 2018 U.S. Dist. LEXIS 198877 (CD CA, Nov. 20, 2018), a California federal magistrate judge held that a former detainee's complaint that he was unable to attend group religious services is subject to dismissal.

DOJ Seeks Early Supreme Court Review of Transgender Military Policy

As reported by SCOTUblog, the Justice Department has filed petitions for certioriari in three cases in which district courts have enjoined implementation of the Trump Administration's new policy on transgender individuals serving in the military.  The petitions in all three cases, Trump v. Karnoski, Trump v. Doe, and Trump v. Stockman, were filed before Circuit Courts of Appeal handed down decisions in the cases-- an unusual procedural step.  The Trump Administration policy-- unlike the policy adopted by the Obama Administration-- precludes most new enlistments by transgender individuals. (See prior posting.) The cert. petitions argue for the immediate granting of review:

Absent an immediate grant of certiorari, there is ... little chance of a prompt resolution of the validity of Secretary Mattis’s proposed policy. And so long as this or any other injunction remains in place, the military will be forced nationwide to maintain the Carter policy—a policy that the military has concluded poses a threat to “readiness, good order and discipline, sound leadership, and unit cohesion,” which “are essential to military effectiveness and lethality.”

Twitter CEO Charged In Indian Court With Outraging Religious Feelings

According to Times of India yesterday, a local court in Jodhpur, India has agreed to move ahead with a complaint against Twitter CEO Jack Dorsey for his Tweet of an anti-Brahmin photo.  The photo taken by Dorsey during his recent trip to India shows a woman holding a sign reading "Smash Brahminical Patriarchy". The petition filed against Dorsey charges him with violation of India's Penal Code Sec. 295A (Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs), as well as with defamation and criminal conspiracy. A hearing is set for Dec. 1.

President's Thanksgiving Day Proclamation

Donald Trump this week issued a formal Proclamation (full text) declaring today as a National Day of Thanksgiving. The Proclamation reads in part:

We are especially reminded on Thanksgiving of how the virtue of gratitude enables us to recognize, even in adverse situations, the love of God in every person, every creature, and throughout nature. Let us be mindful of the reasons we are grateful for our lives, for those around us, and for our communities. We also commit to treating all with charity and mutual respect, spreading the spirit of Thanksgiving throughout our country and across the world.

DOJ Files Statement of Interest In Church's Challenge To Limits On Use of Civic Center

As previously reported, in August a suit was filed in a South Carolina federal district court against Edisto Beach challenging the Town's rule change that prohibits renting space in the town's Civic Center for religious worship services.  Now the lawsuit has attracted the attention of the Justice Department. On Tuesday, DOJ filed a Statement of Interest (full text) in Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, arguing in part:

... [T]he Town’s legally erroneous “concerns” about Establishment Clause liability turn First Amendment jurisprudence on its head: the First Amendment prohibits the content-based and viewpoint-based restrictions on protected speech that the Town seeks to permit and permits religious worship services the equal access to government facilities that the Town seeks to prohibit.

Charleston Post and Courier reports on developments.

Court Bars Enforcement of Trump's Limitation on Asylum Seekers

In East Bay Sanctuary Covenant v. Trump, (ND CA, Nov. 19, 2018), a California federal district court issued a temporary restraining order against implementation of a Presidential Proclamation and implementing rule that allow asylum to be granted only to refugees who cross the border at a designated port of entry.  8 USC Sec. 1158(a) provides:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival ...), irrespective of such alien’s status, may apply for asylum....

Focusing on this section and on treaty obligations, the court said in part:

The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the INA and the expressed intent of Congress. Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.

A hearing on whether a preliminary injunction should issue in the case was set for Dec. 19.  Washington Post reports on the decision. The decision led to an unusual war of words between President Trump and Chief Justice John Roberts.

9th Circuit: Animal Rights Group Lacks Standing To Challenge Kapparot Practices

In United Poultry Concerns v. Chabad of Irvine, (9th Cir., Nov. 20, 2018), the U.S. 9th Circuit Court of Appeals held that an animal rights group lacks standing to sue a Jewish religious organization for violating California's Unfair Competition Law. The suit challenged Chabad's sponsoring of kapparot -- an atonement ritual carried out before Yom Kippur involving the use and slaughter of live chickens.  The district court had reached the merits of the claim and had held that the acceptance of a donation in connection with the performance of religious ritual is not covered by the state's Unfair Competition Law. (See prior posting.) The 9th Circuit, by contrast, held that plaintiff was not injured by Chabad's actions and so lacks Article III standing. It vacated the district court's judgment and ordered the case dismissed for lack of jurisdiction. Metropolitan News-Enterprise reports on the decision.

Court Invalidates Mississippi's Restrictive Ban On Abortions

In Jackson Women's Health Organization v. Currier, (SD MS, Nov. 20, 2018), a Mississippi federal district court held unconstitutional a recently enacted Mississippi statute that prohibits most abortions after 15 weeks gestation.  The court said in part:

[T]he real reason we are here is simple. The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade.

This Court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.

Bustle reports on the decision.

2 Philadelphia Police Officers Claim Anti-Semitic Harassment

Two Philadelphia police officers filed suit on Monday against the Philadelphia Police Department and Department supervisors alleging the creation and sanctioning of a racist, anti-Semitic and anti-Jewish environment. The complaint (full text) in Gonzalez v. City of Philadelphia, (ED PA, filed 11/19/2018) seeks damages for harassment, discrimination and hostile work environment in violation of 42 USC Secs. 1981, 1983 and 1985. WHYY News further summarizes the complaint:

The federal civil rights lawsuit claims an array of abuse — that the officers were not given time off to celebrate Jewish holidays, that a Nazi “SS” symbol and a German phrase meaning “skull and crossbones” were scratched onto their lockers, and that a police patrol car was marked with the Star of David with the words “Hebrew Hammer.”

Civil rights lawyers Brian Mildenberg, who is representing the officers, said those acts were intended to “scare and harass” Reznik, a Jewish immigrant born in Russia who is a 12-year veteran of the force.

Pastor Sues To Access Homeless Encampment

The Episcopal Diocese of Olympia reports on a lawsuit filed in a Washington federal district court on Monday against the city of Aberdeen, Washington by an Episcopal priest and two others over access to a homeless encampment. The city has purchased the land and intends to clear it, but in the meantime is requiring anyone entering the site to obtain a permit. Rev. Sarah Monroe, who was denied a permit, explains the lawsuit:

My permit to visit this encampment was denied by the city on the grounds that I did not provide enough detail, or a schedule, or a clear list of what I intend to do during my visits. I am a priest. I have been pastoring the people in this camp for five years. I do everything from drive people to the hospital, to prayer, to taking people to social service appointments, to performing last rites when people die here. These essential pastoral duties do not happen on a schedule, as any member of the clergy can attest. I have continued to visit people, even though I have been denied a permit, and am petitioning the court to prevent the city from arresting me.

Homeless people have a constitutionally protected right to freedom of religious expression. I have a constitutionally protected right to my freedom of religious expression, which includes serving the poor and the sick and the hungry.

California Appeals Court OK's Repeal of Belief Exemption To Immunization Requirements

In Love v. Department of Education, (CA App., Nov. 20, 2018), a California state appellate court rejected state constitutional challenges to a California law that repealed the personal belief exemption to the state's immunization requirements for school children.  Saying that "Plaintiffs’ arguments are strong on hyperbole and scant on authority," the court rejected claims that the repeal violates the constitutional right to attend school, substantive due process, or rights of privacy or free exercise of religion.

Ecclesiastical Abstention Does Not Require Dismissal of Negligent Supervision Claim

In Bourque v. Roman Catholic Diocese of Charlotte, NC, (NC App., Nov. 20, 2018), a North Carolina appellate court held that the ecclesiastical abstention doctrine does not require dismissal of a suit alleging negligent supervision and negligent infliction of emotional distress. However it does require dismissal of a negligent hiring claim. The suit alleges that a male church youth leader raped a 14-year old female who sought counsel from him about being bullied. Four years later, he repeatedly raped her again. The court said in part:

Plaintiffs’ claim is not barred by the First Amendment because determining whether Bishop Jugis and the Diocese knew or had reason to know of Defendant’s proclivities for sexual wrongdoing requires only the application of neutral principles of tort law, and “the application of a secular standard to secular conduct that is tortious is not prohibited by the Constitution.”

Court Orders Release of Iraqi Chaldean Detainees

A Michigan federal district court yesterday, in the latest installment in a case filed last year, ordered the release from federal detention of hundreds of Iraqi deportees who have been issued final removal orders, but whom the government has been unable to repatriate. Most of the detainees, according to the court, "are Chaldean Christians who would face persecution, torture, and possibly death if returned to Iraq." In Hamama v. Adducci, (ED MI, Nov. 20, 2018), the court said in part:

The law is clear that the Federal Government cannot indefinitely detain foreign nationals while it seeks to repatriate them, when there is no significant likelihood of repatriation in the reasonably foreseeable future. This principle emanates from our Constitution’s core value of rejecting arbitrary restraints on individual liberty.

The issue the Court now resolves is whether there is such a likelihood of repatriation for scores of Iraqi nationals whom the Government has detained for an extended period—many for well over a year—while it engages in a diplomatic dialogue with Iraq that has yet to produce any clear agreement on repatriation. In fact, the weight of the evidence actually uncovered during discovery shows that Iraq will not take back individuals who will not voluntarily agree to return. This means that the Iraqi detainees could remain locked up indefinitely—many in local jails.... [T]he Government has acted ignobly in this case, by failing to comply with court orders, submitting demonstrably false declarations of Government officials, and otherwise violating its litigation obligations—all of which impels this Court to impose sanctions.

As explained fully below, the Court will grant a preliminary injunction, as requested by Petitioners in this case, ordering that those detained more than six months be released under orders of supervision.

ACLU issued a press release announcing the decision.

Court Holds Federal Female Genital Mutilation Statute Unconstitutional

A Michigan federal district court today held, on federalism grounds, that the federal Female Genital Mutilation statute, 18 USC 116, is unconstitutional. The case involves the prosecution of medical personnel and of the mothers of minor girls in the small, Indian-Muslim Dawoodi Bohra community. (See prior posting.)  In United States v. Nagarwala, (ED MI, Nov. 20, 2018), the court rejected the government's argument that the statute can be supported as an exercise of Congress' treaty power or its power to regulate interstate commerce.

The International Covenant on Civil and Political Rights which Congress ratified in 1992 (subject to certain understandings and reservations) requires the adoption of laws to protect the rights of minors. One of the understandings imposed by Congress was that ratification would not change the relative roles of the federal and state governments. The court said in part:

Congress overstepped its bounds in  legislating to prohibit FGM.... FGM is a "local criminal activity" which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress.

In rejecting the government's Commerce Clause arguments, the court said in part:

In the present case, the government has failed to show that FGM is a commercial activity. It claims that “[l]ike child pornography and marijuana, an interstate market exists for FGM.” ... Yet the government’s only evidence of such a market is the fact that it has alleged nine FGM victims in the present case, five of whom were brought to Michigan from neighboring states.... This is not a market, but a small number of alleged victims. If there is an interstate market for FGM, why is this the first time the government has ever brought charges under this 1996 statute? The government’s attempt to show that there is an interstate market for FGM falls flat; its comparison to the multi-billion-dollar interstate markets for marijuana and pornography is unsupported and unconvincing....

Finally, the government asserts that only a federal statute can deal with FGM because, as Congress asserted in its fourth finding, “the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control.”... This argument fails for at least two reasons. First, the Commerce Clause allows Congress to regulate commercial activity that has a substantial effect on interstate commerce, not activity that is “beyond the ability of any single State or local jurisdiction to control.” Second, the government informs the Court that twenty-seven states have passed FGM statutes ... and nothing prevents the others from doing so.

Detroit News reports on the decision.

6h Circuit: Police Need Not Give Journalist Booking Photos of Woman Without Hijab

In Schlussel v. City of Dearborn Heights, (6th Cir., Nov. 19, 2018), the U.S. 6th Circuit Court of Appeals rejected arguments by a journalist that the City violated her 14th and 1st Amendment rights when it refused her Michigan Freedom of Information Act request for booking photos that were taken of a Muslim woman, Malak Kazan, that showed her without her hijab.  The City's refusal was pursuant to a privacy policy it instituted in response to a previous suit by brought Kazan after her arrest. In this case journalist Deborah Schlussel argued unequal treatment because booking photos of Kazan had been furnished to Kazan's lawyer before the privacy policy was adopted. The court rejected Schussel's equal protection, as well as her Establishment Clause, argument.

Suit Seeking Cannabis Exemption For Rastafari Moves Ahead In Iowa

An Iowa state trial court has denied a motion by the Iowa Board of Pharmacy to dismiss a suit brought against it claiming that it abused its discretion when it refused to recommend to the state legislature an exemption for religious use of cannabis by Rastafari.  (Order in Olsen v. Iowa Board of Pharmacy, (IA Dist. Ct., Nov. 16, 2018). Links to all the pleadings in the case as well as to audio of oral arguments are available here. (See prior related posting.)

Recent Articles of Interest

From SSRN:

• Marc O. DeGirolami, The Sickness Unto Death of the First Amendment, (Harvard Journal of Law and Public Policy, Forthcoming).
• Gerald Lebovits, Holocaust Houdinis (Condensed Remembrance Version), (Just Us 12 (Apr. 2018) (Remembrance Issue No. 7)).
• Benjamin L. Berger, Liberal Constitutionalism and the Unsettling of the Secular, (in Rex Adhar, ed., Research Handbook on Law and Religion (Northampton, Mass: Edward Elgar, 2018), 198-220).
• Benjamin L. Berger, Religious Freedom in Canada: A Crucible for Constitutionalism, ([2018] 1 Quaderni di Diritto e Politica Ecclesiastica 111-125).
• Leslie Kendrick & Micah Schwartzman, The Etiquette of Animus, (Harvard Law Review, Vol. I32, No. 1, p. 33-70, 2018).
• Benjamin L. Berger, Assessing Adler: The Weight of Constitutional History and the Future of Religious Freedom, (National Journal of Constitutional Law (2018 Forthcoming)).
• Faisal Bhabha, Religious Freedom in a Multicultural Society, (Cardus Law Research Series on Religious Freedom (January 2017)).
• Zachary Price, Symmetric Constitutionalism: An Essay on Masterpiece Cakeshop and the Post-Kennedy Supreme Court, 70 Hastings L.J., Forthcoming).
• Steven Douglas Smith, An Open Letter to Justice Ruth Bader Ginsburg, (2018).
• Rebecca Ruth Gould, Is the ‘Hate’ in Hate Speech the ‘Hate’ in Hate Crime? Waldron and Dworkin on Political Legitimacy, (Forthcoming, Jurisprudence).
• Joseph A. Seiner, The Discrimination Presumption, (Notre Dame Law Review, 2019 (Forthcoming)).

From SmartCILP:

• Erin E. Stiles, How to Manage a Marital Dispute: Legal Pluralism from the Ground Up in Zanzibar, 8 U.C. Irvine Law Review 275-297 (2018).

Recent Prisoner Free Exercise Cases

In Howard v. Polley, 2018 U.S. Dist. LEXIS 190747 (D NV, Nov. 6, 2018), a Nevada federal district court allowed a Muslim inmate to move ahead with his complaint that it takes up to several weeks for Muslim inmates to be screened so they can attend Jumu'ah services, while there is no screening for Christian and Jewish inmates.

In Kindred v. Allenby, 2018 U.S. Dist. LEXIS 191495 (ED CA, Nov. 8, 2018), a California federal magistrate judge held that an inmate's complaints regarding search and seizure of personal and religious property are subject to dismissal.

In Thomas v. Cox, 2018 U.S. Dist. LEXIS 192576 (D NV, Nov. 9, 2018), a Nevada federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 192645, Oct. 24, 2018) and denied a preliminary injunction to prevent destruction of videos of the prison culinary area in connection with his complaint that he was not furnished kosher meals.

In Hansler v. Kelley, 2018 U.S. Dist. LEXIS 192817 (WD AR, Nov. 13, 2018), an Arkansas federal district court dismissed a Wiccan inmate's complaint that his Wiccan Bible and Book of Grimoires were confiscated, and that there were no Wiccan religious leaders or volunteers to supervise its religious services.

In Doyle v. United States, 2018 U.S. Dist. LEXIS 192924 (ED KY, Nov. 13, 2018), a Kentucky federal district court dismissed a Hanafi Muslim inmate's complaint that inmates could pray in groups no larger than three.

In Shakanasa v. Allison, 2018 U.S. Dist. LEXIS 193482 (ND CA, Nov. 13, 2018), a California federal court allowed an inmate to move ahead with his complaint that he was not permitted to change his name or purchase religious items, and for retaliation.

In Wallace v. Solomon, 2018 U.S. Dist. LEXIS 193662 (WD NC, Nov. 14, 2018), a North Carolina federal district court dismissed an inmate's complaint that the policy providing for non-meat selections is inadequate to comply with Islamic dietary law.

Proposed HHS Rule Will Give Contraceptive Alternative To Women Excluded By Employers' Religious Objections

The New York Times reported yesterday that the Department of Health and Human Services has issued a new proposed rule that would blunt the impact of its recent final rules allowing employers to assert religious or moral objections to furnishing contraceptive coverage in their health plans. Under the proposed rule, any woman denied coverage from her employer because of the employer's religious or moral objections would be eligible for the family planning program for low income families offered under Title X of the Public Health Service Act, regardless of the woman's actual income. [Thanks to Steven H. Sholk for the lead.]

Victim of Neo-Nazi Website Attacks Can Move Ahead With Lawsuit

In Gersh v. Anglin, (D MT, Nov. 14, 2018), a Montana federal district court denied a motion to dismiss made by Andrew Anglin, publisher of the alt-right website the Daily Stormer in a suit against him for invasion of privacy, intentional infliction of emotional distress and violation of Montana's Anti-Intimidation Act.  The suit was filed by Tany Gersh, a realtor who was the subject of abusive articles on Daily Stormer over her interactions with the mother of neo-Nazi leader Richard Spencer. As described by the court:

In the articles, Anglin described Gersh's behavior as extortion, and Anglin drew heavily on crude ethnic stereotypes, painting Gersh as acting in furtherance of a perceived Jewish agenda and using Holocaust imagery and rhetoric. He called for "confrontation" and "action"....

When Gersh filed her Complaint in the spring of 2017, she and her family had received more than 700 disparaging and/or threatening messages over phone calls, voicemails, text messages, emails, letters, social media comments, and Christmas cards. 

Refusing to dismiss the suit on free speech grounds without a more fully developed factual record, the court said in part:

At minimum, Gersh has made a plausible claim that Anglin' s speech involved a matter of strictly private concern.... 

The context of the case is, at first blush, public-a series of blog posts on an alt-right "news" blog, which often engages with political issues, albeit from an extremist viewpoint. However, under a liberal interpretation of the Complaint, the content of the speech may be seen as strictly private; Anglin launched a campaign of unrelated personal attacks on a Whitefish realtor, her husband, and their son because of a perceived conflict between Gersh and the mother of Anglin's friend, another white supremacist. Although Anglin drew heavily on his readers' hatred and fear of ethnic Jews, rousing their political sympathies, there is more than a colorable claim that he did so strictly to further his campaign to harass Gersh...

CNN reports on the decision. [Thanks to Scott Mange for the lead.]

Employer's Proposed Religious Accommodations Were Adequate

In Miller v. Port Authority of New York & New Jersey, (D NJ, Nov. 13, 2018), a New Jersey federal district court held that the religious accommodations offered to a newly-hired Jewish employee (shift swapping or use of vacation or comp time) were reasonable and the employee's preferred accommodation of his Sabbath observance did not need to be offered. The court said in part:

The employees in Miller’s unit are unionized, and as a result, Port Authority is bound by a collective bargaining agreement. Creating a permanent shift schedule for Miller exempting him from work on the Sabbath or the Jewish holidays, without first offering that option to more senior employees, would have violated the agreement’s seniority provision. It also would have violated the past-practices provision of the agreement, which requires that the established rotational schedule be maintained. In short, Miller’s preferred accommodation would have placed Port Authority in violation of its collective bargaining agreement and required other, more senior employees to work less desirable additional Friday evening and Saturday shifts.

On this record, the religious accommodation offered by Port Authority was reasonable. And because the blanket exemption proposed by Miller would have imposed more than a de minimis hardship, the employer was not required to accept it.

[Thanks to Steven H. Sholk for the lead.]

Christian Student Group Sues University For Registration

A suit was filed in Colorado federal district court this week by a Christian student organization at the University of Colorado that was denied registered status because it requires its officers must share and personally hold its Christian beliefs. It also requires prospective members to agree with and promote the organization's purposes. Registered status gives an organization access to student activity fees. The complaint (full text) in Ratio Christi at the University of Colorado v. Sharkey, (D CO, filed 11/14/2018) alleges:

[The University] has promised to register Ratio Christi only if the group changes its leadership and membership criteria. That is, Plaintiffs must agree to abandon their rights to free speech, free association, free exercise of religion, freedom from unconstitutional conditions, due process, and equal protection to access campus resources available to all other student organization.

ADF issued a press release announcing the filing of the lawsuit.

Free Exercise Claim Over Search Warrant Execution Fails

In Brown v. Scanlon, 2018 U.S. Dist. LEXIS 194049 (MD PA, Nov. 13, 2018), a Pennsylvania federal magistrate judge recommended dismissing a free exercise claim growing out of the execution of a search warrant at the residence of Shannon Brown.  Brown claims that her 1st Amendment rights were infringed when police forced her to lie on the floor handcuffed in her underwear during the search.  She says that as a Muslim woman, being in a state of undress around men caused her to feel defiled and embarrassed. She also complained that she was forced to remove her head scarf for her mugshot at the courthouse.

Catholic Diocese Opposes Taking of Church Land For Border Fencing

The Catholic Diocese of Brownsville, Texas filed suit in federal district court on Nov. 6 seeking a temporary restraining order to prevent the federal government from exercising its eminent domain power to take church land to construct border fencing and security.  According to the Brownsville Herald, last month the Department of Homeland Security waived more than two dozen laws to facilitate construction of border fencing through Hidalgo County and filed a Declaration of Taking that includes the La Lomita Chapel and Juan Diego Academy in Mission, Texas. The Diocese argues that the taking violates its free exercise rights and that the DHS waivers exceeded the authority granted by Congress.

New York's Top Court Denies Mandamus In Battle Against Kaporos Ritual

In Alliance to End Chickens as Kaporos v New York City Police Department, (NY Ct App, Nov. 14, 2018), New York state's highest court agreed that a petition for a writ of mandamus to require enforcement of public health and animal cruelty laws should be denied. According to the Court:

Plaintiffs allege those laws are routinely violated when thousands of chickens are killed during the religious practice of Kaporos performed in certain Brooklyn neighborhoods prior to Yom Kippur....

Enforcement of the laws cited by plaintiffs would involve some exercise of discretion.... Moreover, plaintiffs do not seek to compel the performance of ministerial duties but, rather, seek to compel a particular outcome. Accordingly, mandamus is not the appropriate vehicle for the relief sought.

WABC reports on the decision.

WAPO Runs Study of Southern Poverty Law Center

The Washington Post Magazine last week published a lengthy investigative article on the Southern Poverty Law Center.  Titled The State of Hate, frames the issue it explores as follows:

The SPLC was founded in 1971 to take on legal cases related to racial injustice, poverty and the death penalty. Then, in the early 1980s, it launched Klanwatch, a project to monitor Klan groups, neo-Nazis and other white supremacists. Their hate seemed self-evident. But eventually the SPLC began tracking — and labeling — a wider swath of extremism. And that’s when things became more complicated.

Today the SPLC’s list of 953 “Active Hate Groups” is an elaborate taxonomy of ill will.....

For decades, the hate list was a golden seal of disapproval, considered nonpartisan enough to be heeded by government agencies, police departments, corporations and journalists. But in recent years, as the list has swept up an increasing number of conservative activists — mostly in the anti-LGBT, anti-immigrant and anti-Muslim categories — those conservatives have been fighting back.....

Ironically, the assault on the SPLC comes at a time when, by other measures, it has reached a new peak of public regard. Last year the group raised a whopping $132 million through its famously relentless direct-mail appeals and other giving.

Get Religion has more on the WAPO article.

ACLU Settles Free Speech Suit Against Missouri City

ACLU of Missouri announced yesterday that it has settled a lawsuit which it filed earlier this year against the city of Wentzville after the city removed a woman from a Board of Alderman's meeting for criticizing a 16-foot "In God We Trust" sign that had been installed on the front of the meeting room dias. According to the ACLU:

Tonight, the Wentzville governing body passed and read aloud a resolution affirming its commitment to uphold First Amendment freedoms and acknowledging that members of the public of any or no religions tradition are welcome to participate in local government. The city also resolved to apply the updated city code evenhandedly, without censoring speech based on its content during the open forum portion of a Wentzville Board of Aldermen meeting.

The settlement also stipulates that Wentzville must advise law enforcement officers assigned to public meetings that they have an independent obligation to uphold the Constitution. Officers will now independently assess if probable cause exists before removing someone from a meeting.

9th Circuit Hears Oral Arguments In Title VII Case Against Salvation Army

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Garcia v. Salvation Army (video of full arguments). In the case, an Arizona federal district court dismissed a Title VII religious discrimination claim brought against the Salvation Army. Plaintiff claimed that she was subjected to discrimination, retaliation, and hostile work environment after she stopped attending Salvation Army services.  The court held that Title VII's religious organization exemption applies and that the Salvation Army did not waive the defense by failing to assert it as an affirmative defense. (See prior posting.) [Thanks to John Jackson for the lead.]

8th Circuit: Title VII Failure To Accommodate Does Not Equal Retaliation

In EEOC v. North Memorial Health Care, (8th Cir., Nov. 13, 2018), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, interpreted Title VII's unlawful retaliation provision. At issue is the interpretation of 42 U.S.C. § 2000e-3(a) that makes it illegal to discriminate against an employee or applicant for employment because the person "has opposed" an employer's discriminatory practices. In the case, an employment offer to a Seventh Day Adventist registered nurse was withdrawn because she was unable to work Friday night shifts and an accommodation was not feasible.  The majority held that merely requesting religious accommodation is not necessarily an expression of opposition to a denial of the accommodation.  Judge Grasz dissenting explained the opposing views:

I do share the Court’s apparent concern that Title VII not be read so that meritless discrimination claims based on a failure to accommodate may simply be repackaged and resurrected as retaliation claims. In my view, however, it is the causation element that properly does the work of weeding out such claims, not the opposition requirement. Where an employer, after denying an accommodation request that it is not legally obligated to grant, refuses to hire an applicant because the applicant cannot or will not perform the job without accommodation, the employer can show the legitimacy of the action.... Unlike such repackaged claims, the claim here should survive because there is evidence of retaliation, namely the evidence that Sure-Ondara told North Memorial she would work the job even without the accommodation and would show up for work if she could not find a replacement. Despite her willingness to work without accommodation, North Memorial withdrew its job offer, making it reasonable for a fact-finder to infer that it did so because she had requested an accommodation.

Chaplaincy Program of Wisconsin Justice Department Challenged

Suit was filed yesterday in a Wisconsin state trial court challenging the constitutionality of a new Chaplaincy Program for employees and their families created by the Wisconsin Department of Justice. The complaint (full text) in Freedom From Religion Foundation, Inc. v. Schimel, (WI Cir. Ct., filed 11/13/2018),  alleges that six chaplains from across the state have been appointed initially-- all white males from Christian faiths. The program excludes secular mental health professionals. Chaplains operate under the direction of a paid Chaplaincy Program Coordinator. The suit contends that the program violates the U.S. Constitution's Establishment Clause.  FFRF issued a press release announcing the filing of the lawsuit.

FBI Releases 2017 Hate Crimes Report

Yesterday the FBI released  its 2017 Hate Crime Statistics. The number of hate crime incidents increased 17% from last year-- 6,121 incidents in 2016 and 7,175 in 2017. However the year-to-year data may not be fully comparable since 1,000 additional agencies reported in 2017.  In 2017, hate crimes motivated by religious bias accounted for 1,564 incidents (totaling 1,679 offenses), or 22% of all incidents. This compares with 1,273 incidents in 2016. (See prior posting). Hate crimes based on race comprised 58% of all incidents in 2017.  Of the religiously-motivated hate crimes in 2017, some 938 (60%) were anti-Jewish while 273 (17%) were anti-Muslim. 73 incidents were anti-Catholic. ADL issued a press release analyzing the report.

Recent Prisoner Free Exercise Cases

In Buckley v. Munk, 2018 U.S. Dist. LEXIS 188322 (ND CA, Nov. 2, 2018), a California federal district court dismissed the complaint of an Orthodox Jewish former pre-trial detainee that he was not allowed to have candles and a particular prayer book or to wear his tallit katan outside his cell.

In Clark v. Foxwell, 2018 U.S. Dist. LEXIS 188343 (D MD, Nov. 1, 2018), a Maryland federal district court dismissed a suit by an inmate who said he is Jewish who complained that he did not receive proper kosher meals.

In Wali Ibn Abd-Ali v. Sibanda, 2018 U.S. Dist. LEXIS 188885 (WD PA, Nov. 2, 2018), a Pennsylvania federal magistrate judge recommended allowing a Muslim inmate to move ahead with his complaint that is ability to participate in the Ramadan fast was impeded, but recommended dismissing his claim that he could not participate in Eid feasts.

In Meeks v. Boulden, 2018 U.S. Dist. LEXIS 190037 (ED CA, Nov. 6,2018), a California federal magistrate judge dismissed, with leave to amend, an inmate's complaint that his religious beliefs prohibit him from drinking tap water and he was denied distilled or bottled water as an alternative.

In Alvarez v. Lassiter, 2018 U.S. Dist. LEXIS 190236 (WD NC, Nov. 6, 2018), a North Carolina federal district court dismissed an inmate's complaint that his religious books and literature were taken from him, violating his free exercise rights.

At Pope's Request, U.S. Bishops Postpone Vote On New Conduct Standards

Crux reports that in a surprise move, on Sunday night the Holy See notified Cardinal Daniel DiNardo, president of the US Conference of Catholic Bishops, that the Pope wants U.S. bishops to postpone their vote on new standards of conduct for bishops and the creation of an outside commission to enforce it. The Pope wants the vote to wait until after a Feb. 21-24 international bishops' conference on clerical sex abuse.  In his opening address to the USCCB General Assembly in Baltimore yesterday (full text), Cardinal DiNardo said in part:

in light of this morning’s news, the nature of my address changes. We remain committed to the specific program of greater episcopal accountability that we will discuss these days. Consultations will take place. Votes will not this week. But we will prepare ourselves to move forward.

Jury Awards $3.2M To Muslim Employee For Religious Discrimination

According to the Press-Enterprise, last week a jury in a San Bernardino, California trial court awarded $3.2 million in damages for religious discrimination to a former warehouse employee at Loma Linda University Medical Center.  Muslim former employee Hugo Lizzaraga claimed that he was harassed for four years and ultimately was dismissed because of his Muslim religious beliefs.  Lizzaraga claimed that the harassment began after he converted to Islam and also broke his thumb and was placed on modified duty by his physician. A month before he was fired, he was suspended-- accused of telling a co-worker what he would have done differently in the 2015 San Bernardino terrorist shooting.

Albany Episcopal Bishop Defies Parent Body On Same-Sex Marriage Rites

In July, the General Convention of the Episcopal Church passed Resolution B012 Marriage Rites for the Whole Church, which was designed to give local congregational access to all couples wishing to have a same-sex marriage ceremony.  The Resolution stated in part:

[I]n dioceses where the bishop exercising ecclesiastical authority ... holds a theological position that does not embrace marriage for same-sex couples, and there is a desire to use such rites by same-sex couples in a congregation or worshipping community, the bishop exercising ecclesiastical authority ... shall invite, as necessary, another bishop of this Church to provide pastoral support to the couple...

Last week, in response to Resolution B012 that is to become effective on Dec. 3, the Bishop of Albany, William Love, who has been an opponent of same-sex marriage, issued a Pastoral Letter (full text) that reads in part as follows:

I cannot in good conscience as a bishop in God’s holy Church agree to what is being asked for in B012. While I respect the authority of General Convention as an institutional body, my ultimate loyalty as a bishop in God’s holy Church is to God....

Until further notice, the trial rites authorized by Resolution B012 of the 79th General Convention of the Episcopal Church shall not be used anywhere in the Diocese of Albany by diocesan clergy (canonically resident or licensed)....

Albany Times-Union reports on the Bishop's action.

Restaurant Settles EEOC Suit On Dress Code Accommodation

The EEOC last week announced the settlement of a religious discrimination suit it had filed against the operators of a Flowood, Mississippi restaurant, Georgia Blue.  The restaurant agreed to pay $25,000 to settle a complaint by an Apostolic Pentecostal waitress who objected to the company's dress code that required servers to wear blue jean pants.  The company had refused to accommodate her religious beliefs that women should only wear skirts or dresses. The settlement also requires the company to change its employee policies and to provide non-discrimination training to managers.

Recent Articles of Interest

From SSRN:

• Thomas Scott-Railton, A Legal Sanctuary: How the Religious Freedom Restoration Act (RFRA) Could Protect Sanctuary Churches, (Yale Law Journal, Forthcoming).
• Tamar Hostovsky Brandes, Israel's Nation-State Law – What Now for Equality, Self-Determination, and Social Solidarity?, (October 1, 2018).
• Jan Petrov, The Populist Challenge to the European Court of Human Rights, (The Jean Monnet Working Paper Series (NYU School of Law) 3/18 (2018).
• Eric Segall, Putting the 'Exercise' Back in the Free Exercise, (Kentucky Law Journal, Forthcoming).
• Elizabeth Kukura, Revisiting Roe to Advance Reproductive Justice for Childbearing Women, (Notre Dame Law Review Online, Vol. 94, 2018).
• Deborah Hellman, The Epistemic Commitments of Nondiscrimination, (Virginia Public Law and Legal Theory Research Paper No. 2018-60 (2018).
• Yaoyao Fan, Kose John, Hong Liu & Luqyan Tamanni, Security Design, Incentives, and Islamic Microfinance: Cross Country Evidence, (October 14, 2018).

From SmartCILP and elsewhere:

• Judge Shams Al Din Al Hajjaji,  Government By Judiciary In Islam: Islamic Theory of Government and Mal/practice of Muslim Governments (Turkey, Saudi Arabia, Egypt and Morocco), 48 California Western International Law Journal 283-339 (2018).
• Babak Manouchehrifar, Is Planning ‘Secular’? Rethinking Religion, Secularism, and Planning, [Abstract], Planning Theory and Practice (2018).

Recent Prisoner Free Exercise Cases

In Wright v. Bibens, 2018 U.S. Dist. LEXIS 187463 (D CT, Nov. 1, 2018), a Connecticut federal district court dismissed a Rastafarian inmate's complaint that he was denied common fare meals for 4 days after he was transferred to a different institution.

In Braun v. Sterno, 2018 U.S. Dist. LEXIS 187654 (D CT, Oct. 31, 2018), a Connecticut federal district court allowed a Native American inmate to move ahead with free exercise and RLUIPA claims against a correctional officer who dumped out his medicine bag and kicked and stomped sacred items in it.

In Harris v. Cearlock, 2018 U.S. Dist. LEXIS 187839 (CD IL, Nov. 2, 2018), an Illinois federal district court allowed an African Hebrew Israelite inmate to move ahead with his complaint that he was denied a religious diet.

In Jean-Pierre v. Clay, 2018 U.S. Dist. LEXIS 187606 (MD GA, Nov. 2, 2018), a Georgia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 188138, Oct. 10, 2018) and allowed a Muslim inmate to move ahead only on his claim for nominal damages for restricting his prayer time during Ramadan, prohibiting him from leading prayers and other religious instruction, and removing him to isolation in retaliation for continuing to pray during Ramadan.

In Prosha v. Robinson, 2018 U.S. Dist. LEXIS 188313 (ED VA, Nov. 2, 2018), a Virginia federal magistrate judge allowed a House of Yahweh inmate to move ahead with his RLUIPA complaint that he did not receive an adequate religious diet during Passover.

Indian Court Says Jewish Divorce By Mutual Consent Not Permitted

Times of India today reports on a Sept. 24 decision by the Family Court in Mumbai denying a Jewish couple's petition for divorce by mutual consent.  Unlike the situation of numerous other religious groups, there is no codified statutory law in India governing Jewish divorces.  The court held that the divorce is governed by uncodified Jewish personal law, and the parties have not shown that divorce by mutual consent is allowed under Jewish law.

Challenge Filed To Texas' Limits On Marriage Celebrants

A suit was filed last week in a Texas federal district court challenging the constitutionality of Texas Family Code Section 2.202 which limits those who can officiate at marriage ceremonies to members of the clergy and various judges.  The complaint (full text) in Center for Inquiry, Inc. v. Warren, (ND TX, filed 11/5/2018) contends that the failure to allow secular celebrants to perform marriage ceremonies violates the Establishment Clause, the Equal Protection clause and Art. VI's ban on religious tests. Center for Inquiry issued a press release announcing the filing of the lawsuit.

Suit Challenges Denial of Zoning Approval For Mosque

A suit was filed in a Michigan federal district court yesterday against the city of Troy, Michigan challenging the denial of a zoning variance for property acquired for use as a mosque and community center.  The complaint (full text) in Adam Community Center v. City of Troy, (ED MI, filed 11/9/2018), alleges RLUIPA and constitutional violations, saying in part:

31. The City of Troy currently has seventy-three (73) approved places of worship for various religions including Christian Churches and Hindu Temples. However, the city of Troy does not have a single approved Muslim Mosque or other Muslim religious institution within the city.

32. The city of Troy, through its Zoning Board of Appeals as well as planning commission employees, has on several occasions since 2013 recommended that Adam look to other cities as a better place to build their mosque and has stated that there are no places left in Troy where a mosque would be possible. This is despite the fact that there have been new Christian churches built and approved in the city of Troy between 2013 and 2018.

CAIR issued a press release announcing the filing of the lawsuit. Detroit News reports on the lawsuit.

Satanic Temple Sues Netflix Over Wrongful Use Of Bahomet Statue

Yesterday The Satanic Temple filed suit in a New York federal district court against Netflix and Warner Brothers, seeking $50 million in damages.  The complaint (full text) in United Federation of Churches LLC v. Netflix, Inc., (SD NY, filed 11/8/2018), alleges that defendants wrongfully used the image of a statue belonging to the Satanic Temple in its television series Chilling Adventures of Sabrina. The Satanic Temple alleges that it spent $100,000 to develop the statue, Baphomet with Children, which is a modification of the historical deity Baphomet:

Baphomet historically involved a goat’s head ... on a female body associated with Lilith, a figure from Jewish mysticism sometimes considered a goddess of the night. The classic visual representation of idea of Baphomet is an image created in or about 1856 by an occult historian Eliphas Levi.... 

[T]he TST Baphomet with Children, consists of several modifications from the historic expressions of the deity....

The Sabrina Series’ evil antagonists stand in stark contrast to TST’s tenets and beliefs.... By misappropriating TST Baphomet with Children (which is a registered copyright and famous mark of TST) to publish this false and defamatory depiction of TST, Defendants have engaged in three classes of wrong: copyright infringement (Claim 1), trademark violation (Claim 2), and injury to business reputation (Claim 3).

In addition to damages, plaintiff seeks an injunction requiring defendants to digitally remove the statue from all future distributions of the TV program. Courthouse News and Reuters report on the lawsuit. [Thanks To Tom Rutledge for the lead.]

UPDATE: According to a Nov. 21 post by Lucien Greaves, the suit has been amicably settled, with the unique elements of the Satanic Temple’s Baphomet statue acknowledged in credits of episodes already filmed.

Preliminary Agreement Reached For Church of Greece Clergy To Lose Civil Servant Status

Reuters reports that in Greece on Tuesday, Prime Minister Alexis Tsipras and Archbishop Ieronymos of the Church of Greece reached a preliminary agreement to end the civil servant status of priests and auxiliary staff. Some 10,000 members of the clergy will no longer be paid directly by the government. Instead the government will annually transfer a subsidy to a special church fund for the payment of salaries. The agreement also contemplates settlement of a long-standing property dispute between the church and the Greek government. The agreement, which creates a brighter line between church and state, must still be approved by the cabinet, parliament and church leaders. [Thanks to Scott Mange for the lead.]

Attorneys Get Fee Award In Trinity Lutheran Case

Yesterday, a Missouri federal district court handed down a fee award to successful plaintiff's counsel in last year's important Trinity Lutheran case.  In the case, the Supreme Court ultimately upheld the right of a church to participate in a Missouri grant program for school playgrounds. In Trinity Lutheran Church of Columbia v. Comer, 2018 U.S. Dist. LEXIS 190824 (WD MO, Nov. 7, 2018), the court awarded attorneys' fees totaling $433,792 for litigating the case from district court through the U.S. Supreme Court.  It also awarded costs and expenses of $32,593. Plaintiff had asked for attorney's fees totaling $840,605.

Arizona Voters Repeal Expansion of School Voucher Program

In Arizona on Tuesday, voters repealed Senate Bill 1431 which expanded the state's Empowerment Scholarship Accounts to make all public school students eligible to apply. The vote on the measure, known as Proposition 305, was 67% in favor of repeal, 33% opposed to repeal. The program allows students with disabilities (and certain other students) to opt out of public schools and instead receive state funds for use in private schools or for home schooling.

Guam Archdiocese Plans Chapter XI Filing

Guam's Archdiocese of Agana announced yesterday that it plans to file for bankruptcy reorganization within the next 90 days. The Archdiocese said that this is the most expeditious way to handle sexual abuse claims. Guam Daily Post, reporting on the Archdiocese's announcement, says that more than 180 sexual abuse claims against the Archdiocese are pending.

Kim Davis Loses Re-election Bid

According to the Lexington Herald-Leader, in Rowan County, Kentucky on Tuesday, county clerk Kim Davis lost her re-election bid by some 650 votes. Davis garnered national attention in 2015 by her adamant refusal to sign marriage licenses for same-sex couples. (See prior posting).

Trump Administration Finalizes Broadened Contraceptive Mandate Exemptions

In two releases yesterday, the Health and Human Services Administration, jointly with the IRS and Department of Labor, issued final rules making permanent (with minor changes) the interim final rules issued last October expanding exemptions from the contraceptive coverage mandate under the Affordable Care Act. One release (full text) finalizes exemptions for various entities and individuals with religious objections to providing coverage for some or all contraceptive or sterilization methods. The other release (full text) finalizes exemptions for entities and individuals with moral objections to providing such coverage. The final rules will become effective on Jan. 14, 2019.  Last December, two federal district courts issued nationwide preliminary injunctions against enforcing the interim final rules. RNS reports on the new rules.

Third Circuit Hears Arguments In Challenge To Foster Care Non-Discrimination Requirement

Courthouse News Service reports on Tuesday's oral arguments in the U.S. 3rd Circuit Court of Appeals in Fulton v. City of Philadelphia. In the case, a Pennsylvania federal district court rejected Catholic Social Services challenges to the requirement that it not discriminate against same-sex couples in foster care placement. (See prior posting.)

Abortion Measures Defeated In Oregon; Approved In West Virginia

Oregon voters yesterday apparently defeated, by a vote of 37% yes and 63% no, a proposed state constitutional amendment (Oregon Measure 106) that would have prohibited the expenditure of public funds directly or indirectly for abortion, except when medically necessary or required by federal law. These figures are based on tabulation of 68% of the votes.

Voters in West Virginia yesterday approved, by a vote of 51.7% yes and 48.3% no, Amendment 1 which amends the state constitution to add language providing "nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion."

Suit Seeks To Impose Vaccination Exemption On Religious School

VIN News reports on a suit filed last month in a New York state trial court by parents who are seeking to require a Jewish day school to grant their 4-year old son a religious exemption from immunization requirements.  Yeshiva Oholei Torah requires children to be immunized in order to attend, and the school does not recognize exemption requests. The suit apparently contends that the religious exemption provision in New York's Public Health Law Sec. 2164(9) is mandatory for schools. The section provides that the mandatory vaccination requirements of state law "shall not apply to children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to the practices herein required, and no certificate shall be required as a prerequisite to such children being admitted or received into school or attending school." The trial court denied an emergency injunction in the case last month to the parents who claim their religious freedom is being infringed.. A hearing on a preliminary injunction will be held next week. Some four dozen measles cases have been confirmed among yeshiva students in New York and New Jersey. [Thanks to Avram Schwartz for the lead.]

Alabamans Approve 10 Commandments and Right To Life Amendments

Alabama voters yesterday approved two state constitutional amendments. By a margin of 78% to 22%, voters approved Amendment 1, officially described as follows:

First, it provides that a person is free to worship God as he or she chooses, and that a person’s religious beliefs will have no effect on his or her civil or political rights. Second, it makes clear that the Ten Commandments may be displayed on public property so long as the display meets constitutional requirements, such as being displayed along with historical or educational items. Amendment 1 also provides that no public funds may be used to defend this amendment in court.

Voters, by a margin of 59% to 41% approved Amendment 2, officially described as follows:

Amendment 2 provides that it would be the public policy of the state to recognize and support the importance of unborn life and the rights of unborn children, including the right to life; and to protect the rights of unborn children. Additionally, the amendment would make clear that the state constitution does not include a right to abortion or require the funding of an abortion using public funds.

The proposed amendment does not identify any specific actions or activities as unlawful. It expresses a public policy that supports broad protections for the rights of unborn children as long as the protections are lawful.

Faith-Based Groups Push Voters To The Polls In Today's Mid-Term Elections

RNS yesterday reported on the extensive get-out-the vote campaigns mounted by religious groups. Detailing many of the efforts, the report says in part:

Waves of religious groups are mustering passionate get-out-the-vote efforts in the final hours before the heated midterm elections, with clergy pushing the faithful to the polls in ways that stand to aid both Republicans and Democrats.

Convincing religious voters to cast ballots on Election Day on Tuesday (Nov. 6) is hardly a new phenomenon in American politics. But this year’s atypically heated midterm contests appear to have sparked unusually robust efforts by faith-based organizations to galvanize supporters and move the political needle in favor of their respective values, if not their preferred candidates.

Canadian Diocese Wins Suit Against Insurance Company That Refused Coverage For Abuse Victims

In Aviva Insurance Company of Canada v. L’Évêque catholique romain de Bathurst, (NB Court of Appeal, Oct. 18, 2018), the New Bunswick Court of Appeal held that the Catholic Diocese of Bathurst is entitled to $3.35 million damages against its insurance company that refused to cover amounts paid to victims of clergy sexual abuse. The court said in part:

While the underlying facts of this litigation are most disturbing, at its core this is a breach of contract case involving a diocese that, over the years, purchased general public liability insurance from an insurer, which, many years later, when claims were made, wrongfully denied coverage. The question on appeal is whether the diocese is entitled to damages for breach of contract in amounts that involve the costs of, and payments made through, a conciliation process the diocese set up as a result of its insurer’s denial of coverage....

The Diocese’s right to damages did not rest on it being legally obligated to make the conciliation payments. The correct legal test is one of reasonableness; the trial judge was bound to follow this test and determine whether the conciliation process and the resulting payments were a reasonable response to breach of contract. I conclude the actions of the Diocese did constitute a reasonable response, within the boundaries of the law, to Aviva’s wrongful denial of coverage.

CNS reports on the decision.

Pakistan Blasphemy Case Is Not Over As Government Agrees To Seek Another Review

As previously reported, last week Pakistan's Supreme Court reversed the blasphemy conviction of Asia Bibi, a Christian woman who had been sentenced to death in 2010 for allegedly uttering derogatory remarks against the Prophet Muhammad. However hard-line Islamist opposition to the Court's decision has developed. CBS News reports:

Pakistan's top court acquitted Bibi on Wednesday of the charges carrying the death penalty, infuriating hard-line Islamists who held three days of nationwide protests demanding her execution. The enraged protesters torched scores of vehicles, blocked highways and attacked government and public property; a radical cleric also threatened to kill the three judges who acquitted Bibi. According to the Reuters news agency, Cleric Khadim Hussain Rizvi, who leads the Islamist Tehreek-e-Labbaik (TLP) party, had his Twitter account suspended on Monday for inciting violence.

The protests ended after the government agreed to impose a travel ban on Bibi and allow her case to be reviewed. A review petition was filed in the Supreme Court....

Earlier in the day, police said over 150 people were arrested on charges of arson, vandalism and violence during the protests.

Meanwhile, Al Jazeera reports that Bibi's lawyer has fled to the Netherlands after threats on his life.

Professor Sues Over Requirement To Address Students Using Their Preferred Pronoun

Yesterday a philosophy professor at Shawnee State University in Portsmouth, Ohio filed suit against the trustees and administrators at the school charging that they have violated his free exercise and free speech rights in the enforcement of the University's policy barring discrimination on the basis of gender identity.  The complaint (full text) in Meriwether v. Trustees of Shawnee State University, (SD OH, filed 11/5/2018) complains that University officials enforce university policies to require faculty to use the pronoun preferred by a student when addressing the student. Plaintiff, Prof. Nicholas Meriwether, asserts in part in his complaint:

85. Dr. Meriwether’s Christian faith governs the way he thinks about human nature, marriage, gender, sexuality, morality, politics, and social issues, and it causes him to hold sincerely-held religious beliefs in these areas.

86. Dr. Meriwether’s convictions concerning human nature, the purpose and meaning of life, and ethical standards that are to govern human conduct are drawn from the Bible.

87. Dr. Meriwether believes that God created human beings as either male orbfemale, that this gender is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual’s feelings or desires.

88. Dr. Meriwether also believes he cannot affirm as true ideas and concepts that are not true, as this would violate Biblical injunctions against dishonesty and lying.

ADF issued a press release announcing the filing of the lawsuit.