Indian Parliament Outlaws Triple Talaq

India's Parliament yesterday gave final passage to The Muslim Women (Protection of Rights on Marriage) Bill, 2019 (full text) (bill summary). The bill now goes to the President for his assent. The new law outlaws "triple talaq", the procedure under which a Muslim husband divorces his wife by uttering the word "talaq" three times to her.  The law makes talaq (including in written and electronic form) illegal and provides for a fine and up to three years in prison for anyone declaring talaq. It also allows award of child custody and subsistence to a wife against whom talaq has been invoked. The bill replaces a presidential Ordinance issued earlier this year.  In 2017, India's Supreme Court held that triple talaq is invalid and ordered the government to consider appropriate legislation on the mater. (See prior posting.)  Rediff and Reuters report on the bill. [Thanks to Scott Mange for the lead.]

TRO Issued Against Arkansas Abortion Restrictions

In a 159-page opinion in Little Rock Family Planning Services v. Rutledge, (ED AR, July 23, 2019), and Arkansas federal district court granted a 14-day temporary restraining order against enforcement of recent Arkansas laws that severely restrict abortions.  The laws at issue ban abortions after 18 weeks of pregnancy, ban abortions when the reason is a pre-natal diagnosis of Down's Syndrome, and bans abortions being performed by anyone other than board-certified OB-GYN physicians. CNA reports on the decision.

Canadian Court Says West Bank Wines Cannot Be Labeled "Products of Israel"

In Kattenburg v. Attorney General of Canada, (Federal Ct. Canada, July 29, 2019), a judge of Canada's Federal Court held that labeling wine produced by wineries in the West Bank settlements of Shiloh and Psagot as "Products of Israel" is false, misleading and deceptive in violation of § 7(1) of Canada's Consumer Packaging and Labelling Act and § 5(1) of Canada's Food and Drugs Act. The court said in part:

Both parties and both interveners agree that, whatever the legal status of the settlements may be, the fact is that they are not within the territorial boundaries of the State of Israel.

The court added:

[S]ome individuals opposed to the creation of Israeli Settlements in the West Bank express their opposition to the settlements and their support for the Palestinian cause through their purchasing choices, boycotting products produced in the Settlements. In order to be able to express their political views in this manner, however, consumers need to have accurate information as to the origin of the products under consideration. Identifying Settlement Wines incorrectly as “Products of Israel” inhibits the ability of such individuals to express their political views through their purchasing choices, thereby limiting their Charter-protected right to freedom of expression.

The Globe and Mail reports on the decision.

New Report On Muslim Inmates In State Prisons In U.S.

In a press release last week, Muslim Advocates announced the release of a report documenting the size of the Muslim population in state prisons in the U.S. and the extent to which their religious rights are accommodated. The 68-page report (full text) titled Fulfilling the Promise of Free Exercise for All: Muslim Prisoner Accommodation in State Prisons concluded in part:

[O]ur research shows that within the 34 states that provided data in response to our requests, Muslims are overrepresented in state prisons by a factor of eight relative to the general population. In some state systems, Muslims are overrepresented by a factor of closer to eighteen, with more than 20 percent of prisoners identifying as Muslim. The absolute number of Muslim prisoners has also increased over time, even as prison populations in many states have tended to decrease in the last few years. Despite Muslims constituting a significant and growing share of prisoners, many state departments of correction still have policies that are outdated, under-accommodating, or non-accommodating of Muslim prisoners.

The Appeal discusses the report.

Court Refuses To Order Return of WWII Remains To Supposed Next-of-Kin

In Patterson v. Defense POW/ MIA Accounting Agency, (WD TX, July 29, 2019), a Texas federal district court refused to order return to plaintiffs of the remains of seven servicemen who were killed or perished as POW's in the Philippines in World War II.  The court explains:

The parties dispute the extent to which the remains are identified. Plaintiffs argue that they have a property interest in these remains and that Defendants’ retention of these remains impinges on Plaintiffs’ religious practices and Plaintiffs’ interest in securing proper burial.

The court rejected plaintiffs' due process, 4th Amendment, free exercise and RFRA claims to the remains at issue, saying in part:

They state “the facts alleged in the Amended Complaint show that the Government has placed a substantial burden on the Families’ exercise of religion.”... 

The record reveals nothing further about Plaintiffs’ religious beliefs or how Defendants have burdened them. Plaintiffs do not indicate the nature, substance, or contours of their beliefs, or even whether all Plaintiffs share the same religious beliefs. In the complaint, Plaintiffs allege that a “proper burial is essential for many practicing Christians,” but they produce no declarations or other evidence outlining these beliefs. Defendants thus contest whether Plaintiffs’ beliefs are sincerely held. 

The Court is inclined to grant summary judgment on the sincerity grounds ... given Plaintiffs’ total lack of evidence. Courts have cautioned, however, that “[t]hough the sincerity inquiry is important, it must be handled with a light touch.... 

In keeping with this tradition ... the Court assumes Plaintiffs show sincerely held beliefs and concludes alternatively that Plaintiffs do not show a substantial interference with these beliefs. As Defendants note, Plaintiffs allege only that their beliefs require a “proper burial,” but without any explanation of what makes a “proper burial in accordance with each respective family’s religious beliefs,” the Court cannot assess the alleged interference.... Thus, Plaintiffs do not meet their initial burden for either their RFRA or Free Exercise claims.

Medical Center's Retirement Plan Is A "Church Plan" Exempt From ERISA

In Boden v. St. Elizabeth Medical Center, Inc., (ED KY, July 25, 2019), a Kentucky federal district court held that the employee retirement plan of a Catholic-affiliated health care provider is exempt from ERISA as a "church plan."  The case was initially stayed pending the Supreme Court's 2017 decision in Advocate Health Care Network v. Stapleton. (See prior posting.)  The case then proceeded under an amended complaint.  The court here, among other things, rejected plaintiffs' contention that the Pension Plan Administrative Committee is not "organization" that "maintained" St. Elizabeth's retirement plan, as required by the statute defining a "church plan." [Thanks to Tom Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• Zainab Ramahi, Veiled Muslim Women: Challenging Patriarchy in the Legal System, (Berkeley Journal of Gender, Law & Justice, Vol. 33, 2018).
• Sumit Sonkar, From Shah Bano to Shayara Bano: Itinerary of Gender Equality of Muslim Woman in India, (Indian Bar Review, Vol.45 (1) 2018).
• Satang Nabaneh & A.S. Muula, Female Genital Mutilation/Cutting in Africa: A Complex Legal and Ethical Landscape, (International Journal of Gynecology and Obstetrics, 2019; 145: 253–257).
• Andrew M. Koppelman, LGBT Discrimination and the Subtractive Moves, (July 21, 2019).
• Ihsan Yilmaz, Muslims and Sacred Texts and Laws, (January 15, 2019).
• Jehanzaib Waqas, Financial Reforms for Social Development by Holy Prophet in Medinian Society (Peace and Blessings Be Upon Him) , (Pakistan Journal of Islamic Research, 2017 Special Issue).
• Edana Richardson, Responsible Finance Sukuk — Can They Bring Societal Value to a Value-Neutral Market?, ((2019) 14(3) Capital Markets Law Journal 394)).

From SmartCILP and elsewhere:

• Journal of Law & Religion, Vol. 34, Issue 1 (April 2019).
• Gordon T. Butler, John the Theologian: Toward Integrating Law and Religion, 14 Intercultural Human Rights Law Review 41-65 (2019).
• David F. Forte, The Faith and Morals of Justice Antonin Scalia, 14 Intercultural Human Rights Law Review 67-92 (2019).
• Marc-Tizoc Gonzalez, John Makdisi On the Intercultural Origins of the Common Law, 14 Intercultural Human Rights Law Review 167-191 (2019).
• Ali Rod Khadem, Why Should Law and Policy Makers Understand Extremist Beliefs? The Islamic State (ISIS) As a Case Study: Past, Present, and Future, 23 Lewis & Clark Law Review 101-203 (2019).
• Helen M. Alvare, A Perfect Storm: Religion, Sex and Administrative Law, 92 St. John's Law Review 697-753 (2018).

Nigerian Court Bars Shiite Group as Terrorists

Legit reported today that the Nigerian federal government has obtained a court order banning the Shiite group Islamic Movement in Nigeria on the ground that it is a terrorist group. A Federal High Court justice, Nkeonye Maha, issued the order and designated the activities of the Shiite movement in any part of Nigeria "as acts of terrorism and illegality".

Gay Couple Sue Over Citizenship of Child Born Through Surrogacy Abroad

A same-sex married couple has filed suit in a Georgia federal district court challenging the State Department's refusal to recognize their daughter as a U.S. citizen.  The complaint (full text) in Mize v. Pompeo, (MD GA, filed 7/23/2019), alleges that the due process and equal protection rights of James Mize and Jonathan Gregg were violated when the U.S. Embassy in Britain refused to issue a Consular Report of Birth Abroad and passport to their daughter who was born through assisted reproductive technology in Britain. It also contends that the State Department has misinterpreted the Immigration and Nationality Act (INA). The couple used the sperm of Mr. Gregg, an anonymous egg donor, and a surrogate who lives in Britain. Both fathers are U.S. citizens.  Mr. Gregg is a U.S. citizen by reason of birth in Britain to a U.S. citizen. He has lived in the U.S. less than five years. Mize and Gregg are listed as the only parents on the child's birth certificate.

Under Sec. 301 of the INA, a person born outside the United States to two married U.S. citizens is a U.S. citizen if at least one of the parents has resided in the U.S. at any time. However the State Department applies this provision only if the child has a biological relationship with both married parents. Otherwise it applies Sections 309 and 301(g) of the INA that govern when a child born out of wedlock is a citizen. In that case, the father must have lived in the U.S. for 5 years for the child to be a citizen.

The complaint alleges:

On information and belief, State Department officials are highly unlikely to ask different-sex parents who are identified as legal parents (e.g., on a child’s birth certificate) if their child is, in fact, biologically related to both legal parents. In contrast, same-sex parents will always trigger an investigation, and consular officials routinely ask same-sex parents for specific evidence of a biological tie and/or about the use of assisted reproductive technology.

CNN reports on the lawsuit.

Canadian Court Orders Reconsideration of Election Date That Conflicts With Jewish Holiday

In Aryeh-Bain v. Canada (Attorney General), (Canada Fed. Ct., July 23, 2019), a judge of Canada's Federal Court ordered Canada's Chief Electoral Officer to reconsider his decision that refused to reschedule the October 21 Canadian federal election that conflicts with the Jewish holiday of Shemini Atzeret.  According to the court:

If the election is held on Shemini Atzeret, Ms. Aryeh-Bain, who is a candidate for the Conservative Party in her riding, must refrain from voting and campaigning during that period. Similarly, Mr. Walfish and other Orthodox Jewish voters (estimated to be 75,000 nationwide) will be unable to vote on election day or otherwise be involved in the election on that day.

In addition to polling day being on Shemini Atzeret, two of the advanced polling days  conflict with either the Sabbath (October 12) or the festival of Sukkot (October 14), both of which are also Jewish holidays. The last day to obtain a special ballot (October 15) also falls on Sukkot.

The court held that administrative decision makers are required to balance rights under the Charter of Rights and Freedoms with statutory objectives when making administrative decisions. It went on:

The record does not indicate how or if the CEO “balanced” these considerations against the Charter values of Orthodox Jewish voters and candidates to ensure their rights to “meaningful participation” are respected.  The CEO’s efforts were focused on advance polling and special ballot options.  No consideration appears to have been given to recommending a date change.

Canadian Press reports on the decision.

Challenge To Attempted Search of Church Is Dismissed

In Aguilera v. City of Colorado Springs, (D CO, July 23, 2019), a Colorado federal district court dismissed a suit brought by plaintiff who leases two rooms to the Green Faith Ministry. The suit grew out of an attempt by city authorities to conduct an occupancy check of the building leased by the Ministry, apparently suspecting that it was a retail marijuana outlet. Authorities took photos of license plates, but never gained access to the building. The court held that plaintiff lacks standing to bring most of her claims:

Plaintiff complains that Defendants ... deterred others from entering the building... She alleges that Defendant Vargason attempted a warrantless entry of the Green Faith Ministry building.... She contends that the City of Colorado Springs is entangled financially with many Christian organizations and targeted Green Faith Ministry.... Plaintiff fails to allege how this conduct, directed to other individuals and to the Green Faith Ministry entity, harmed her.

The court went on to find a few actions that did impact plaintiff, including one of the defendants telling her "to Praise the Lord." The court concluded that this did not violate the Establishment Clause or plaintiff's free exercise rights.

County Sued Over Zoning Denial To Faith-Based Recovery Program

Suit was filed in a Georgia federal district court last week by a ministry offering a faith-based residential program for men recovering from addiction alleging discriminatory action by a county zoning board. the complaint (full text) in Vision Warriors Church, Inc. v. Cherokee County Board of Commissioners, (ND GA, filed 7/15/2019) alleges that the county's denial of zoning approval for operation of plaintiff's recovery program violates the federal Fair Housing Act, the ADA, RLUIPA and the 14th Amendment's Equal Protection clause. ACLJ issued a press release announcing the filing of the lawsuit.

Cert. Filed: Do Parents Have Due Process Rights In Emancipation of Teen?

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Calgaro v. St. Louis County. The petition frames the question presented as:

Whether parents’ Due Process Clause rights apply to local governments and medical providers ending parental rights, responsibilities or duties over their minor children’s welfare, educational, and medical care decisions without a court order of emancipation.

As described by the U.S. 8th Circuit Court of Appeals in its March 25, 2019 decision below (full text):

In May 2015, E.J.K. moved out of Calgaro’s home in St. Louis County, Minnesota. Calgaro never surrendered her parental rights, but E.J.K. obtained a letter from Mid-Minnesota Legal Aid describing E.J.K.’s father and Calgaro as “hav[ing] given up control and custody of their child.” The letter concluded that E.J.K. was therefore “legally emancipated under Minnesota law.”... Based on E.J.K.’s claims of emancipation, St. Louis County provided E.J.K. with funding for medical services and other living expenses, and E.J.K. obtained gender transition care from Park Nicollet Health Services.

Thomas More Society issued a press release announcing the filing of the petition for review.

6th Circuit: Street Near Planned Parenthood Clinic Is Traditional Public Forum

In Brindley v. City of Memphis, (6th Cir., July 24, 2019), the U.S. 6th Circuit Court of Appeals held that a street adjacent to a Planned Parenthood clinic is a traditional public forum even though the street was originally privately owned.  The court said it is enough that the street looks and functions like a public street. Also the street was dedicated as a public right of way. Thus the court reversed and remanded a district court's denial of a preliminary injunction to a pro-life activist who wanted access to the street. [Thanks to Tom Rutledge for the lead.]

Judge Urges Plaintiffs To File New Religious Discrimination Suit

In TAL Properties of Pomona, LLC v. Village of Pomona, (SD NY, July 22, 2019), a New York federal district court refused to vacate its earlier judgment and reopen a religious discrimination case brought by a Jewish building developer against a New York village. Plaintiffs argued that a subsequent New York State Division of Human Rights report revealed new evidence of discrimination against Orthodox Jewish residents of the village.  The court, while ruling against plaintiffs, said:

Defendants should take little comfort in this outcome. The allegations presented on this motion, if even half true, are disturbing. I am obliged to stay within the confines of Rule 60(b), which in my judgment does not allow for this lawsuit to be reopened, but should Plaintiffs commence a new lawsuit, they may well be able to state a claim. And I do not see how Defendants will “suffer immense prejudice,” ... if they have to defend themselves on the merits. They may well be able to do so; I have no opinion as to the what the outcome of such a case would be, nor could I at this stage. But should Plaintiffs find it in their interest to pursue a case, airing the allegations and getting to the truth would hardly be a bad thing.

Copyright Infringement Counterclaims Not Dismissed

In Holy Spirit Association for the Unification of World Christianity v. World Peace & Unification Sanctuary, Inc., (MD PA, July 22, 2019), a Pennsylvania federal district court refused to dismiss counterclaims or strike defenses in a copyright infringement suit between two religious organizations.  At issue is the "Twelve Gates" mark which defendant claims is not a valid trademark, and the Tongil symbol which defendant claims is available to be used by all followers of Rev. Sun Myung Moon.

11th Circuit: Inmate's Complaint About Halal-Compliant Food Can Move Ahead

In Robbins v. Robertson, (11th Cir., July 23, 2019), the U.S. 11th Circuit Court of Appeals held that a Muslim inmate's 1st Amendment claim regarding the adequacy of his religious diet should not be dismissed, saying in part:

Plaintiff also made some non-conclusory allegations that plausibly supported his claim that the Islamic-compliant vegan meals were so nutritionally deficient that he was forced to choose between abandoning his religious precepts (by eating religiously non-compliant food that was nutritionally adequate) or suffering serious health consequences (by eating nutritionally inadequate food that was religiously compliant).

Cert Filed In Challenge To Exclusion of Foster Care Agencies That Reject Same-Sex Couples

A petition for certiorari (full text) was filed this week in Fulton v. City of Philadelphia, (cert. filed 7/22/2019).  In the case, the U.S. 3rd Circuit Court of Appeals upheld against 1st Amendment challenges the City of Philadelphia's policy of refusing to contract with foster care agencies, such as Catholic Social Services, that will not place children with same-sex married couples. (See prior posting.)  Becket issued a press release announcing the filing of the petition.

Settlement Reached In Christian School's Zoning Fight

A settlement has been reached in Englewood Church of the Nazarene, Inc. v. Sarasota County, Florida. The suit filed in a Florida federal district court in March alleged violations of RLUIPA, the 1st and 14th Amendments and Florida's Religious Freedom Restoration Act. After the school had been operating in a church's building for more than three years, the county demanded that it seek a special exception to continue its operation and levied daily fines on the school. The school spent $10,000 to complete the application, only to have the special exception denied. (See prior posting.)  According to a press release from ADF, in settling the case the county has approved the church's use of its property. A joint stipulation of dismissal (full text) was filed in Florida federal district court on July 22.

DOJ Summit On Combating Anti-Semitism Held Last Week

Last Monday, the Department of Justice held a Summit on Combating Antisemitism.  Deputy Attorney General Jeffrey A. Rosen delivered Introductory Remarks (full text) and Attorney General William Barr delivered the keynote speech opening the Summit (full text). He said in part:

The first panel will focus on combatting anti-Semitism while respecting the First Amendment. Hate-crime and civil-rights prosecutions are important tools but they cannot solve the problem on their own. Hearts and minds must be changed, but that is not always a task to which the government is particularly well-suited. We have a legal obligation to respect the free speech rights of even despicable speakers and our harshest critics. But lines can be drawn by our society, sometimes easily and sometimes not so easily, between that commitment and repudiation of anti-Semitism.

Another panel will focus on the problem of anti-Semitism on campus. On college campuses today, Jewish students who support Israel are frequently targeted for harassment, Jewish student organizations are marginalized, and progressive Jewish students are told they must denounce their beliefs and their heritage in order be part of "intersectional" causes. We must ensure – for the future of our country and our society – that college campuses remain open to ideological diversity and respectful of people of all faiths.

The DOJ website contains photos of the Summit. JTA reports on additional speakers at the Summit.

Recent Articles of Interest

From SSRN:

• William E. Thro, Embracing Constitutionalism: The Court and the Future of Higher Education Law, (University of Daytona Law Review, Vol. 44, No. 147, 2019).
• Richard W. Garnett, Religious Freedom and the Churches: Contemporary Challenges in the United States Today, (Studies in Christian Ethics, Vol. 32, Issue 4 (2019)).
• Stephen Mark Bainbridge, Bob Cochran on Law and Lawyering: A Catholic Perspective , (UCLA School of Law, Public Law Research Paper No. 19-21 (2019)).
• Stephen Mark Bainbridge, Enhanced Accountability: The Catholic Church’s Unfinished Business, (53 University of San Francisco Law Review 165 (2019)).
• Allen R. Kamp, Right Rights, (January 29, 2019).
• Erik Baldwin, et. al., The Burqa Ban: Legal Precursors for Denmark, American Experiences and Experiments, and Philosophical and Critical Examinations,(International Studies Journal, vol. 15, no. 1, Summer 2018).
• Laura T. Kessler, Reynolds v. United States, Rewritten, (July 18, 2019).
• John Witte, 'John Calvin,' (in Olivier Descampes and Rafael Domingo, eds., Great Christian Jurists in French History (Cambridge University Press, 2019), 117-33).
• John Witte, Church, State, and Sex Crimes: What Place for Traditional Sexual Morality in Modern Liberal Societies?, (Emory Law Journal 68 (2019): 837-865).

Court Expands Injunction On Prayer At High School Graduations

In American Humanist Association v. Greenville County School District, (D SC, July 18, 2019), a South Carolina federal district court expanded its May 2015 order relating to prayer at high school graduation ceremonies in a South Carolina school district. It issued a permanent injunction that includes the following provisions:

(1) The district shall not include a prayer ... as part of the official program for a graduation ceremony. The district also shall not include an obviously religious piece of music as part of the official program for a graduation ceremony.

(2) The district and/or school officials shall not encourage, promote, advance, endorse, or participate in causing prayers during any graduation ceremony....

(4) The district and/or school officials shall not provide copies of student remarks from any prior year’s graduation ceremony to any students selected to make remarks during an upcoming graduation ceremony.

(5) ... No program or flier may direct the audience or participants to stand for any student’s remarks at a graduation ceremony.

(6) If school officials review, revise, or edit a student’s remarks in any way prior to the graduation ceremony, then school officials shall ensure that the student’s remarks do not include prayer.

(7) If school officials do not review, revise, or edit a student’s remarks ..., then a student’s remarks may include prayer, provided that no other persons may be asked to participate or join in the prayer, for example, by being asked to stand or bow one’s head. Moreover, in the event that a student’s remarks contain prayer, no school officials shall join in or otherwise participate in the prayer.

(8) Any program or flier for a graduation ceremony must include the following disclaimer if the ceremony includes a student’s remarks: “The views or opinions expressed by students during this program are their own and do not reflect the policy or position of the school district.”

Greenville News reports on the decision.

FOIA Lawsuit Seeks Information On International Religious Freedom Press Briefing

A Freedom of Information Act lawsuit was filed this week seeking State Department records relating to a March 18 press briefing on international religious freedom. The complaint (full text) in Reporters Committee for Freedom of the Press v. U.S. Department of State, (D DC, filed 7/17/2019), alleges that the State Department press corps was excluded from the briefing, and they were denied a transcript of the briefing,  a list of faith-based media that were invited, and the criteria used to determine those who were invited. Reporters Committee issued a press release announcing the filing of the lawsuit.

Quebec Court Refuses To Enjoin Law Barring Officials From Wearing Religious Symbols

In Hak v. National Council of Canadian Muslims, (Quebec Super. Ct.., July 9, 2019) [opinion in French], a Quebec trial court refused to issue a temporary injunction against enforcement of the province's new law that prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. (See prior posting.) According to CBC News:

The government hoped to shield the law from constitutional challenges by invoking the notwithstanding clause; meaning critics can't appeal to the fundamental freedoms section of the Charter of Rights and Freedoms to get it struck down....

At several points in his decision, [Judge] Yergeau said the injunction request had a steeper hill to climb because the civil society groups couldn't argue the law violated fundamental freedoms protected by the charter.

"The plaintiffs had no other choice for success than to base themselves on purely constitutional arguments, as opposed to Charter arguments, whose validity remains uncertain," the decision reads....

He noted, in particular, the arguments that the law trampled on federal jurisdiction and violated minority rights had enough merit to warrant further consideration by the courts.

But he also said claims that the law had caused irreparable harm were "purely hypothetical and often speculative" given the motion filed so quickly after it was passed.

Catholic Schools Can Challenge Athletic Competition Rule Change

The Ohio Supreme Court in a 5-2 decision in Ohio High School Athletic Association v. Ruehlman, (OH Sup. Ct., July 16, 2019), allowed a trial court judge to move ahead with a challenge brought by Catholic high schools to a rule change by the Ohio High School Athletic Association.  The rule change which relates to the division to which a school is assigned for post-season competition is designed to adjust for the purported advantage that private schools have by reason of their ability to enroll students from wider geographic areas than public schools.  A Catholic school and the athletic conference to which it belongs sought to enjoin application of the new rule. The Ohio High School Athletic Association here sought unsuccessfully to prevent the suit from moving forward.  AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

State Department Hosts Second Ministerial To Advance Religious Freedom

Secretary of State Mike Pompeo is hosting the second Ministerial to Advance Religious Freedom. The 3-day event ends today.  The State Department's website outlines each day's agenda.  The website also has videos of all the speeches and workshops presented during the three days. Secretary Pompeo offered opening remarks at the event. The State Department's website describes the conference:

The Ministerial will reaffirm international commitments to promote religious freedom for all and focus on concrete outcomes that produce durable, positive change. A broad range of stakeholders will convene to discuss challenges, identify concrete ways to combat religious persecution and discrimination, and ensure greater respect for freedom of religion or belief.

The State Department has also chosen 5 recipients of the 2019 International Religious Freedom Awards.

Conservatives Oppose Trump's 5th Circuit Nominee Because of His Contraceptive Mandate Decision

The Washington Times yesterday reported that federal district court judge Halil Suleyman Ozerden, who has been nominated by President Trump for a seat on the U.S. 5th Circuit Court of Appeals is facing opposition from some Republican members of the Senate Judiciary Committee. They have questioned Ozerden's record on religious liberty because of an opinion he wrote in 2012 in Catholic Diocese of Biloxi, Inc. v. Sebelius, (SD MS, Dec. 20, 2012). In that case he dismissed on ripeness grounds a Catholic diocese's challenge to the Affordable Care Act contraceptive coverage mandate.  Conservative advocacy groups such as the American Family Association and the First Liberty Institute are opposing his selection.

U.S. Sanctions Top Burmese Military Leaders For Ethnic Cleansing of Rohingya

Yesterday U.S. Secretary of State Mike Pompeo announced that four top Burmese military leaders and their immediate families will be barred from entry into the United States "for gross human rights violations, including in extrajudicial killings in northern Rakhine State, Burma, during the ethnic cleansing of Rohingya." This made the United States the first government to publicly take action against the most senior leadership of the Burmese (Myanmar) military. The announcement was followed by an official briefing on the action by State Department officials. AlJazeera reports on the State Department's action.

New Report Released On Religious Restrictions Around the World

On Monday, the Pew Research Center released its tenth annual report on governmental restrictions and social hostility to religion in 198 countries and territories around the world. The 126-page report titled A Closer Look At How Religious Restrictions Have Risen Around the World, concludes:

Over the decade from 2007 to 2017, government restrictions on religion — laws, policies and actions by state officials that restrict religious beliefs and practices — increased markedly around the world. And social hostilities involving religion – including violence and harassment by private individuals, organizations or groups – also have risen since 2007, the year Pew Research Center began tracking the issue.

Indeed, the latest data shows that 52 governments – including some in very populous countries like China, Indonesia and Russia – impose either “high” or “very high”levels of restrictions on religion, up from 40 in 2007. And the number of countries where people are experiencing the highest levels of social hostilities involving religion has risen from 39 to 56 over the course of the study.

EEOC Sues McDonald's Franchisee For Failure To Compromise On Grooming Policy

The EEOC announced yesterday that it has filed a lawsuit in a Florida federal district court charging the owner of several McDonald's restaurant franchises in central Florida with religious discrimination.  McDonald's grooming policy requires all employees to be clean shaven.  The restaurant refused to grant an accommodation to a Hasidic Jew who was applying for a part-time maintenance position. The job applicant offered to wear a beard net, but said his religious beliefs preclude shaving.

UPDATE: Here is the full text of the complaint in EEOC v. Chalfont & Associates Group, Inc., (MD FL, filed 7/16/2019). [Thanks to Tom Rutledge.]

9th Circuit Rejects Free Exercise Challenge To Tax Injunction Act

In Samaj v. County of Riverside, (9th Cir., July 15, 2019), the U.S. 9th Circuit Court of Appeals rejected petitioner's free exercise challenge to the federal Tax Injunction Act ("TIA"). The court said in part:

Samaj contends that by stripping the district court of its ability to entertain First Amendment challenges to state taxes, the TIA amounts to a law prohibiting the free exercise of religion. We disagree.... Although a more difficult question would be presented if Samaj were altogether precluded from suing to enjoin an allegedly unconstitutional tax, that is not the case here. The TIA only withdraws federal jurisdiction where the party has a “plain, speedy, and efficient remedy” under state law.

Christian Group Settles Harassment Suit

Last week, a Minnesota state trial court entered a mediated settlement agreement in a case in which a lawyer had obtained a temporary restraining order against the Christian Action League of Minnesota.  As related by a press release from the Thomas More Society:

A local lawyer complained about postcards and emails the group sent to her because she advertises in City Pages. The correspondence informed advertisers that the metro Minneapolis-St. Paul alternative newspaper also promoted the adult sex trade and invited advertisers to reconsider supporting a media outlet that did so.

In R. Leigh Frost Law, Ltd. v. Christian Action League of Minnesota, (MN Dist. Ct., July 11, 2019), the court entered a mediated order dismissing the harassment restraining order, but requiring that for the next two years, Christian Action League may not contact petitioner by any means, including e-mail, social media, post cards, regular mail, phone or in person, nor may it encourage others to contact her or her employer.

Britain Announces Next Steps For Opposite-Sex Civil Partnerships

In a press release last week, Britain's Government Equalities Office announced the release of its report titled Implementing Opposite-Sex Civil Partnerships: Next Steps.  It announces detailed plans for extending civil partnerships to opposite sex couples, and to ask for views of the public on whether conversion of marriages to civil partnerships should be permitted. The report says in part:

Broadly, we intend to provide protections to ensure that faith or religious organisations are not compelled to act in a way that would be in contravention of their beliefs.

...We are aware that for many religious groups, the preferred union for opposite-sex couples is marriage and those groups would not wish to host civil partnerships for opposite-sex couples on their premises, or in any way participate in the formation of opposite-sex civil partnerships. They may also have religious objections to employing individuals, including ministers, who are in a civil partnership as opposed to a marriage.

Law & Religion UK has an extensive discussion of the report.

Justice John Paul Stevens Dies At Age 99

New York Times reports that Justice John Paul Stevens who served on the U.S. Supreme Court for 35 years (1975- 2010) died on Tuesday at the age of 99.  The First Amendment Encyclopedia summarizes Justice Stevens' church-state jurisprudence:

Stevens was a consistent defender of church-state separation in freedom of religion cases.  He wrote the Court’s decision in Wallace v. Jaffree (1985), invalidating an Alabama moment of silence law.  Stevens reasoned that the Alabama legislature had a clear religious purpose of bring prayer back into the public schools. Stevens also authored the Court’s decision in Santa Fe Independent School District v. Doe (2000), invalidating a Texas high school district’s practice of announcing prayers over the loudspeakers at football games. 

For lengthier discussions of Justice Stevens views on 1st Amendment religion issues, see:

• Andrew M. Koppelman, Justice Stevens, Religious Enthusiast, (2012).
• Gregory P. Magarian, Justice Stevens, Religion, and Civil Society, (2011).
• Michael Kessler, The Religious Neutrality of Justice John Paul Stevens, (2010).
• Christopher L. Eisgruber, Justice Stevens, Religious Freedom, and the Value of Equal Membership (2006).
• Robert F. Nagel, Justice Stevens' Religion Problem, (2003).

Court Refuses To Dismiss Loss of Sepulcher Claims

In Gutnick v Hebrew Free Burial Society for the Poor of the City of Brooklyn, (Kings Cty.. NY Sup Ct., June 28, 2019), a New York trial court refused to dismiss common law loss of sepulcher claims by the daughter of an Orthodox Jewish man who died. According to the court:

On April 13, 2014, at an open grave site, plaintiff and other mourners gathered around a coffin believed to be the decedent. During the funeral service, plaintiff noticed a handwritten sticker on the coffin with a name that was not the decedent. Plaintiff alerted the Rabbi performing the ritual and was advised that Orthodox Jewish law forbids the opening of a casket once it has been closed. However, cemetery representatives later opened the casket, in plaintiff's presence and discovered the body of an unknown woman. It is further alleged that the location of the decedent was unknown for several hours. Later, Capitol, HFBA, Mount Richmond Cemetery, and Pyramid representatives informed plaintiff that her father may have been buried in another grave. Upon identifying the grave, the representatives disinterred the coffin and opened it to discover the decedent's body, which plaintiff identified.

Suit Challenges Limits On Sharing Religious Message At Gay Pride Events

Suit was filed in a Tennessee federal district court last month challenging the manner in which the Special Events Policy of Johnson City (TN) is interpreted and applied. The complaint (full text) in Waldrop v. City of Johnson City, Tennessee, (ED TN, June 19, 2019) contends that the city's policy unconstitutionally prevents plaintiffs from sharing their Christian message during gay pride parades and events. It alleges:

123. As applied, the Policy unconstitutionally attempts to convert the City’s streets, sidewalks, and parks from traditional public fora into a nonpublic forum during Special Events conducted in the City. 

124. As applied, the Policy unconstitutionally limits Plaintiffs’ freedom of speech by forcing Plaintiffs to move out of a traditional public forum during Special Events....

133. Plaintiffs have a personal belief in the Biblical mandate to spread the Gospel of Jesus Christ, and Plaintiffs engage in activities, for the purpose of spreading the Gospel of Jesus Christ, that are prohibited by the Policy, as interpreted and enforced by Defendants.

WJHL News reports on the lawsuit.

9th Circuit: New Title X Limits Remain In Effect For Now

Earlier this month, the U.S. 9th Circuit Court of Appeals voted to vacate the 3-judge panel's decision in State of California v. Azar, and to grant en banc review of whether the Trump Administration's new regulations on family planning grants may go into effect. The new rules bar recipients of family planning grants under Title X from referring clients for abortions. They also ban clinics that receive Title X funds from sharing office space with abortion providers. Three district courts had enjoined implementation of the new rules, but a 3-judge panel of the 9th Circuit had granted a stay of the injunctions, allowing the new rules to go into effect. (See prior posting.) While it was widely reported that the court's action earlier this month granting en banc review had reinstated the district court injunctions, apparently that was not so because a week later in State of  California v. Azar, (9th Cir., July 11, 2019), the en banc court, in a 7-4 opinion, said:

Pursuant to prior order of the Court upon granting reconsideration en banc, the three-judge panel Order on Motions for Stay Pending Appeal in these cases was ordered not be cited as precedent by or to any court of the Ninth Circuit. However, the order granting reconsideration en banc did not vacate the stay order itself, so it remains in effect. Thus, the motions for administrative stay remain pending and were not mooted by the grant of reconsideration en banc.

After due consideration of the emergency motions, the motions for administrative stay of the three-judge panel order are DENIED.

Liberty Counsel, reporting on the decision, says that the new Title X rules will block $50 to $60 million in grants to Planned Parenthood that would have been used for birth control, testing for sexually transmitted diseases, and cancer screenings.

6th Circuit Affirms Jury's Damage Award To Muslim Inmates

In Heard v. Finco,(6th Cir., July 15, 2019), the U.S. 6th Circuit Court of Appeals affirmed a jury's damage  award totaling $900 to four Nation of Islam inmates whose religious exercise rights were infringed when prison officials reduced the amount of calories they were served in their Ramadan meals. The inmates argued, however, that they suffered spiritual damage in excess of this amount because their hunger made it difficult for them to focus on prayer and Quran readings. The court said:

Here, the jury heard the inmates’ testimony and saw their medical records. The inmates also had two experts—a nutritionist and an Islamic studies scholar—testify about the harms (both physical and spiritual) that the inmates suffered. The jury weighed all this evidence and concluded that each inmate suffered $150 worth of harm for each Ramadan the prison officials disrupted. The district court had no good reason to second-guess this determination, and neither do we.

[Thanks to Tom Rutledge for the lead.] 

3rd Circuit Affirms Injunction Against Expanded Contraceptive Mandate Exemptions

In Commonwealth of Pennsylvania v. President United States of America, (3d Cir., July 12, 2019), the U.S. 3rd Circuit Court of Appeals affirmed a district court's entry of a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding the scope of the exemptions under the Affordable Care Act for employers having religious or moral objections to contraceptive coverage. The court said in part that the agencies involved lacked good cause to dispense with the notice and comment requirements in promulgating the Interim Final Rules expanding the exemptions, and the use of the notice and comment procedure to finalize the rules did not cure the defect.  The court also said:

The Agencies’ effort to cast RFRA as requiring the Religious Exemption is also incorrect. Even assuming that RFRA provides statutory authority for the Agencies to issue regulations to address religious burdens the Contraceptive Mandate may impose on certain individuals, RFRA does not require the enactment of the Religious Exemption to address this burden....

RFRA does not require the broad exemption embodied in the Final Rule nor to make voluntary a notice of the employer’s decision not to provide such coverage to avoid burdening those beliefs.

The Hill reports on the decision and says that an appeal to the Supreme Court is likely.

Recent Articles of Interest

From SSRN:

• Daniel O. Conkle, Equality, Animus, and Expressive and Religious Freedom Under the American Constitution: Masterpiece Cakeshop and Beyond, (Freedom of Expression in Comparative Law, Gilles J. Guglielmi, ed.; Les Editions Panthéon-Assas, 2020, Forthcoming).
• Allen Mendenhall, Review of Patrick J. Deneen's 'Why Liberalism Failed', (20 Journal of Faith and the Academy, Vol. XII, No. 1 (2019)).
• Jacob Bronsther, Torture and Respect, (109 Journal of Criminal Law and Criminology 423 (2019)).
• Grant Frazier, Defusing a Ticking Time Bomb: The Complicated Considerations Underlying Compulsory Human Gene Editing, (Hastings Science & Technology Law Journal, Forthcoming).
• Caleb Acker, Millstones and Ministry: Generational Transmission As the Unifying Factor in Ministerial Exception Jurisprudence for Teachers Post-Hosanna-Tabor, (July 9, 2019).
• Marie-Amelie George, Framing Trans Rights, (Northwestern University Law Review, Forthcoming).
• Christine Chambers Goodman, The Civil Rights Act, (The Marin Lawyer, June 2019, at 19).

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

• Dr. Ahmad Shaikh, The Root of Other Crimes and the Adultery, (April 30, 2019).
• Natti Perelman, Freedom of Expression and the Desecration of Flags and Religious Books in Israeli Law, (University of Milano-Bicocca School of Law Research Paper No. 19--3, July 2019).
• Loveday Enyinnaya Ogbuleke, Democracy and Ethno-Religious Conflicts in Jos, Plateau State, Nigeria (2007-2012), (Irish Interdisciplinary Journal of Science & Research (IIJSR) (Quarterly International Journal) Volume 3, Issue 2, Pages 29-44, April-June 2019).
• Perry Dane, Names and Numbers: A D’var Torah on Parshat Bamidbar,(July 12, 2019).
• Mohammad Fadel & Connell Monette, Introduction to the English Translation of the Muwatta' of Imam Malik b. Anas, Recension of Yahya b. Yahya al-Laythi (Royal Moroccan Edition, 2013), (Harvard Islamic Legal Studies Program, Forthcoming).
• Mohammad Fadel & Connell Monette (translators), Book 20 of the Muwatta -- The Book of Pilgrimage (Ḥajj) (Harvard Islamic Legal Studies Program, Forthcoming).
• Béligh Elbalti, The Recognition and Enforcement of Foreign Filiation Judgments in Arab Countries, (Nadjma Yassari et al. (ed.), Filiation and the Protection of Parentless Children (T.M.C. Asser Press, 2019), 373-402).

From SmartCILP:

• Marie A. Failinger, Islam In the Mind of American State Courts: 1960 to 2001, 28 Southern California Review of Law & Social Justice 21-105 (2019).

Religious Discrimination Claim By Security Guard Is Rejected

In Murphy v. Secretary, U.S. Department of Homeland Security, (ND WV, July 11, 2019), a West Virginia federal district court rejected religious discrimination claims brought plaintiff who was removed as a security guard at a U.S. Customs and Border Protection facility. Plaintiff who is Roman Catholic and whose wife is Buddhist claims he was removed because of a conversation about his religion that he had with a fellow employee. That fellow employee, a Southern Baptist, claimed that plaintiff had created a hostile work environment when plaintiff "placed his hands up, did a short dance, and asked ‘are you the ones that dance with snakes?'" Rejecting plaintiff's Title VII claim, the court said in part:

The Plaintiff fails to present any evidence that the prohibited conduct in which he engaged was comparable in seriousness to misconduct of other employees outside the protected class who received less severe discipline. Accordingly, he has not shown a prima facie case of discrimination.

The court also rejected plaintiff's 1st Amendment claims.

Religious Residential Program Gets Property Tax Exemption

In Aish Hatorah New York v. Passaic City, (NJ Tax Ct., July 10, 2019), the New Jersey Tax Court held that two properties used by the Orthodox Jewish organization Aish Hatorah for its Aish Woman's House are entitled to a property tax exemption as buildings used for "religious purposes" and for "the moral and mental improvement of men, women and children." Aish House is described by the court as "a residential setting for adult unmarried Jewish women to nurture and develop their understanding of, and faith in Orthodox Judaism .... under the supervision and guidance of the 'rabbi-in-residence'...." The city had argued that the two properties were merely a student dormitory and a rabbi's residence, and therefore not exempt from taxation.

USCIRF Issues Fact Sheet On Prosecution of Mass Atrocity Crimes

The U.S. Commission on International Religious Freedom this month issued a Legislation Factsheet on Prosecution of Mass Atrocity Crimes. The document sets out definitions of crimes against humanity, genocide and war crimes, and discusses the courts in which such crimes can be prosecuted.

Teacher Sues Archdiocese For Directing Catholic High School To Fire Him Over Same-Sex Marriage

Catholic Herald reported yesterday on a lawsuit filed against the Archdiocese of Indianapolis by Joshua Payne-Elliott, a former teacher at Cathedral High School. The suit charges interference with the teacher's professional relationship with the school. The Archdiocese directed the high school to terminate Payne-Elliott's contract after he entered a same-sex marriage. The school made it clear it was following the directive in order to avoid the Archdiocese withdrawing recognition of the school as Catholic. One day before filing his lawsuit against the Archdiocese, the teacher reached what was apparently a friendly settlement with Cathedral High School. The school is helping him find a new teaching position. In response to the lawsuit, the Archdiocese issued this statement:

In the Archdiocese of Indianapolis’ Catholic schools, all teachers, school leaders and guidance counselors are ministers and witnesses of the faith, who are expected to uphold the teachings of the Church in their daily lives, both in and out of school. Religious liberty, which is a hallmark of the U.S. Constitution and has been tested in the U.S. Supreme Court, acknowledges that religious organizations may define what conduct is not acceptable and contrary to the teachings of its religion, for its school leaders, guidance counselors, teachers and other ministers of the faith.

Vatican Waives Diplomatic Immunity of Apostolic Nuncio In France

La Croix reports:

The Vatican has officially waived the diplomatic immunity of the Apostolic Nuncio in France, Archbishop Luigi Ventura, allowing him to appear before a civil court where six complainants have accused him of sexual assault.

This decision, unprecedented in the history of modern Vatican diplomacy, was communicated last week to the French authorities by the Secretariat of State of the Vatican.

Man Sentenced To 30 Months For Religiously Motivated Hate Crime

The Department of Justice announced this week that Ohio resident Izmir Koch was sentenced to 30 months in prison after his conviction for carrying out a religiously motivated assault on a Jewish man. Koch was found guilty last December of violating the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, and of lying to the FBI about his role in the assault.

Settlement Reached In Discrimination Suit Against Michigan Chautauqua Village

Petoskey News-Review reports that a settlement has been reached in a lawsuit against the Michigan village of Bay View that was established in 1875 as part of the United Methodist Church's Chautauqua movement.  In 2017, a federal lawsuit was filed challenging provisions in the Bay View Association's rules that limited cottage ownership to practicing Christians, as well as the requirement that a majority of the Association board be Methodists.  (See prior posting.) Later the Justice Department joined the lawsuit.  In 2018, the provision limiting ownership to Christians was eliminated. (See prior posting.) However plaintiffs also objected to other provisions favoring Christians. 

In the settlement reached in May, but which must still be approved by the court, Bay View Association will retain its status as a religious organization, but will need to file for its tax exempt status separately rather than through the United Methodist Church. It will end the requirement that a majority of its board be Methodists.  The Association will also eliminate provisions in its bylaws that require members to "respect the principles of the United Methodist Church" and support Bay View's mission. Instead, the bylaws will be amended to read that members must "respect and preserve the history and values of the Association," which includes acting "in a manner consistent with Christian values." Finally, Bay View, through its insurers, will pay $75,000 in plaintiffs' legal fees.  The Justice Department will monitor compliance with the settlement for five years.

Suit Challenges Repeal Of New York's Religious Exemption From Vaccination

A class action lawsuit was filed yesterday in a New York state trial court seeking to enjoin the state's recently enacted repeal of the religious exemption from requirements for vaccination of school children. The complaint (full text) in F.F. v. State of New York, (Albany Cty. Sup. Ct., filed 7/10/2019), was filed on behalf of 55 families of various religions who previously were granted religious exemptions.  A number of plaintiffs were families sending their children year-around to Orthodox Jewish yeshivas. The complaint alleges that the exemption repeal was enacted based on active hostility to freedom of religion and is not supported by empirical evidence that unvaccinated minors holding religious exemptions played any part in the recent spread of measles in the state. The complaint went on to allege:

the process by which the New York State Legislature adopted the repeal belies any sense that a public health emergency justified this action; that the repeal violates the Equal Protection Clause because the legislature has concurrently retained the medical exemption and the religious exemption for students enrolled in higher education and allowed unvaccinated staff in both public and private schools in New York .... [F]inally the Court should find ... that the repeal compels speech and acts repugnant to plaintiffs’ religious beliefs....

Plaintiffs also filed a brief (full text) in support of their request for a temporary restraining order.  Albany Times Union reports on the lawsuit. Children's Health Defense issued a press release with links to additional pleadings in the case.

Pastor Claims Retaliation For Ministering To Migrants

Rev. Kaji Douša, senior pastor of New York City's Park Avenue Christian Church, has filed suit against the federal government claiming that she has been targeted for ministering to migrants at the southern border and in Mexico.  The complaint (full text) in Dousa v. U.S. Department of Homeland Security, (SD CA, filed 7/8/2019) alleges in part:

11. In New York, regional ICE officials tracked rallies and prayer vigils led by Pastor Dousa on a list that the officials compiled of so-called “Anti-Trump Protests.” These officials marked Pastor Dousa for surveillance because she prayed with and for immigrants, and because she generated publicity about the devastation that ICE’s enforcement activities rain on immigrants and their families.

12. Then, in January, Defendants detained Pastor Dousa as she attempted to re-enter this nation, her nation, after a day in Tijuana ministering to migrants and their advocates. Border agents interrogated Pastor Dousa about her pastoral work.... They revealed to Pastor Dousa that they had collected detailed information about her and her pastoral work. And they revoked the access she had previously been granted to expedited border crossing.

13. Pastor Dousa’s name is included in a secret government database of journalists, attorneys, immigrant-rights activists, and others targeted for their work with and for migrants....

Alleging violations of the First Amendment and RFRA, the complaint explains:

Defendants’ targeting of Pastor Dousa impedes her ministry, through and through. It burdens her ability to continue answering God’s call to minister to migrants and refugees, which cannot happen without confidence in  confidentiality.... Defendants’ targeting of Pastor Dousa has further forced her to take steps contrary to her faith and to forgo activities that her faith requires, including all but ending her ministry of pastoral care at the Southern Border....

Religion News Service reports on the lawsuit.

Trump's Proposed Tariffs On China Will Impact The Cost of Bibles

AP reports that the Trump Administration's proposed 25% tariffs on imports from China will make Bibles more expensive and impact Christian evangelical organizations that give away Bibles as part of their religious activity. Imposition of those tariffs is now on hold as trade negotiations have resumed. Over half of the Bibles printed worldwide come from China where printers have adapted to the specialized printing requirements needed for production. It is estimated that 150 million Bibles are printed in China each year and that some 20 million are sold each year in the United States. Bible publishers have told the U.S. Trade Representative that the printing of books does not involve technology that is at risk of theft by China.

11th Circuit: County's Invocation Policy Violates Establishment Clause

In Williamson v. Brevard County, (11th Cir., July 8, 2019), the U.S. 11th Circuit Court of Appeals held that the method used by the Brevard County, Florida Board of County Commissioners to select individuals to deliver pre-meeting invocations violates the Establishment Clause.  The Board's formal resolution provides:

Secular invocations and supplications from any organization whose precepts, tenets or principles espouse or promote reason, science, environmental factors, nature or ethics as guiding forces, ideologies, and philosophies that should be observed in the secular business or secular decision making process involving Brevard County employees, elected officials, or decision makers including the Board of County Commissioners, fall within the current policies pertaining to Public Comment and must be placed on the Public Comment section of the secular business agenda. Pre-meeting invocations shall continue to be delivered by persons from the faith-based community in perpetuation of the Board’s tradition for over forty years.

The court said in part:

In this case, Brevard County has selected invocation speakers in a way that favors certain monotheistic religions and categorically excludes from consideration other religions solely based on their belief systems. Brevard County’s process of selecting invocation speakers thus runs afoul of the Establishment Clause.

Florida Today reports on the decision.

Pompeo Announces New Commission on Inalienable Rights

Secretary of State Mike Pompeo announced today that he has created a Commission on Inalienable Rights which, he says, will engage in "one of the most profound reexaminations of the unalienable rights in the world since the 1948 Universal Declaration." He intends that the Commission engage in "an informed review of the role of human rights in American foreign policy."

His statement sets out the reasons for creation of the new Commission:

Today the language of human rights has become the common vernacular for discussions of human freedom and dignity all around the world, and these are truly great achievements.

But we should never lose sight of the warnings of Vaclav Havel, a hero of the late-20th-century human rights movement, that words like “rights” can be used for good or evil; “they can be rays of light in a realm of darkness … [but] they can also be lethal arrows.” ...

It’s a sad commentary on our times that more than 70 years after the Universal Declaration of Human Rights, gross violations continue throughout the world, sometimes even in the name of human rights. International institutions designed and built to protect human rights have drifted from their original mission. As human rights claims have proliferated, some claims have come into tension with one another, provoking questions and clashes about which rights are entitled to gain respect.

Pompeo outlined the issues he wants the new Commission to tackle:

I hope that the commission will revisit the most basic of questions: What does it mean to say or claim that something is, in fact, a human right? How do we know or how do we determine whether that claim that this or that is a human right, is it true, and therefore, ought it to be honored? How can there be human rights, rights we possess not as privileges we are granted or even earn, but simply by virtue of our humanity belong to us? Is it, in fact, true, as our Declaration of Independence asserts, that as human beings, we – all of us, every member of our human family – are endowed by our creator with certain unalienable rights?

The Commission will be chaired by Harvard Law School Professor Mary Ann Glendon.  Its other members include: Russell Berman, Peter Berkowitz, Paolo Carozza, Hamza Yusuf Hanson, Jacqueline Rivers, Meir Soloveichik, Katrina Lantos Swett, Christopher Tollefsen, and David Tse-Chien Pan.

Politico reports on the mixed reaction to Pompeo's announcement.

Recent Articles of Interest

From SSRN:

• Sharona Hoffman, Portable Medical Order Sets (POLST®): Ethical and Legal Landscape, (15 NAELA Journal 1 (Fall 2019)).
• Helen M. Alvare, Dialoguing with Paganism, (Journal of Catholic Legal Studies, Vol. 57, No. 1, pp. 57-61 (2019)).
• Nicholas Hunt, Let Us Pray: The Case for Legislator-Led Prayer, (Tulsa Law Review, Vol. 54, No. 49, 2018).
• Mannu Chowdhury, A Wall Between the 'Public' and the 'Private': A Comment on Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v Wall, (Western Journal of Legal Studies, Vol. 9, No. 2, 2019).
• SpearIt, The Catholic Church Sex Scandal and the Dying Death Penalty: Issues at the Intersection of Religion, Crime, and Punishment, (Published in the State of Criminal Justice, 2019).
• Mohamed Abdelaal, Obergefell v. Hodges: Rethinking Justice Scalia's Originalism, (16 Dartmouth Law Journal 73 (2018)).
• Richard Schragger & Micah Schwartzman, Religious Antiliberalism and the First Amendment, (Virginia Public Law and Legal Theory Research Paper No. 2019-37).
• Hayat Khan, Historical Contribution of Islamic Waqf in Human Capital Development Through Funding Education, (Journal of Islamic & Religious Studies, The University of Haripur, 2018).
• Giancarlo Anello, Overpopulation and Sacred Law: The Wisdom of Islam and the Demographic Politics of Islamic Republic of Iran, (Calumet Intercultural Law and Humanities Review, 2019).

From SmartCILP:

• Shritha Vasudevan, A Gendered Refutation of Epiphenomenal Norms Through the Median Voter: A Case Study of India's CEDAW Compliance, 33 Emory International Law Review Rev. 223-258 (2019).
• Free Speech and Freedom of Religion. Eric Segall, moderator; Michael C. Dorf, Eugene Volokh, panelists. 35 Georgia State University Law Review 937-975 (2019).

5th Circuit Upholds Direct Supervision Requirement For Muslim Inmate Worship Services

In Brown v. Scott, (5th Cir., July 5, 2019), the U.S. 5th Circuit Court of Appeals in a 2-1 decision (56 pages long) written by Judge Owen held that a 1977 consent decree allowing Muslim inmates to gather for worship without direct supervision should be vacated. While Muslim inmates had met with only indirect supervision from 1977 to 2012, that arrangement was terminated after a Jehovah's Witness inmate successfully sued arguing that the more favorable treatment of Muslim inmates violates the Establishment Clause. The termination of the special treatment for Muslim inmates, however, violated the earlier consent decree. This led prison officials to ask that the earlier decree be vacated under provisions of the Prison Litigation Reform Act that allow lifting of the injunction if it is no longer needed to correct an ongoing violation of rights.

Muslim inmates argued that requiring direct supervision of their services would impose a substantial burden in violation of the Religious Land Use and Institutionalized Persons Act. The majority held, however, that it is not prison authorities that have imposed a substantial burden, but instead it is caused by a lack of Muslim volunteers from outside who will supervise services. The majority also rejected Free Exercise and Establishment Clause arguments.

The district court had concluded that Texas prison regulations favor Catholic, Jewish, Native American and Protestant inmates over Muslim inmates.  Judge Owen concluded that this does not create an Establishment Clause violation because in the prison context the more lenient Turner v. Safley test should be applied to Establishment Clause claims.

Judge King joined all of Judge Owen's opinion except for the Establishment Clause section. She held there was an Establishment Clause violation, but that the 1977 consent decree should be vacated nevertheless because it is broader than necessary to remedy the violation.

Judge Dennis in a separate opinion dissented as to the RLUIPA issue, and would not have reached the Establishment Clause or Free Exercise claims

German Court Says Sikhs Not Exempt From Motorcycle Helmet Law

DW reports that Germany's Federal Administrative Court has ruled that religious freedom objections are not sufficient to exempt Sikhs from Germany's law requiring motorcyclists to wear helmets. According to DW:

The Federal Administrative Court in Leipzig rejected a Sikh man's appeal, who had argued that the helmet would not fit over his turban.

"People wearing a turban on religious grounds are not for that reason alone exempt from the obligation to wear a helmet," the presiding judge, Renate Philipp, said, adding that the claimant has to accept this restriction to his freedom of religion, as it serves to uphold the rights of others, too....

The Leipzig court argued that the obligation to wear a helmet not only protects the driver but also keeps other drivers from being traumatized if they cause heavy injury to someone driving without a helmet.

The court also said a driver wearing a helmet would be better placed to help others in case of an accident.

Tunisia Bans Niqab In Government Buildings

Tunisia's Prime Minister yesterday signed a government circular banning the niqab, which covers the entire face except for the eyes, from government  offices.  As reported by  France24, this comes as part of efforts to heighten security after a double suicide bombing last month. The government fears that the niqab will be used as a disguises for terrorists.

SCOTUS Amicus Briefs Supporting Title VII Coverage of LGBTQ Discrimination Now Available

As previously reported, on Oct. 8 the Supreme Court will hear oral arguments in three cases posing the question of whether Title VII of the 1964 Civil Rights Act prohibits discrimination on the basis of sexual orientation or gender identity. Wednesday was the deadline for amicus briefs supporting the parties asserting that Title VII bars such discrimination. More than 40 amicus briefs have been filed, and may be found through links to them on the SCOTUSblog case pages: here. here and here. Amicus briefs supporting the position of the employers in the cases are due Aug. 23.

VA Issues New Policies On Religious Literature and Symbols At VA Facilities

In a News Release issued Wednesday, the U.S. Department of Veterans Affairs announced a new directive on Religious Symbols in VA Facilities and amendments to its directive on Spiritual and Pastoral Care in the Veterans Health Administration. According to the VA:

The new policies will:

• Allow the inclusion in appropriate circumstances of religious content in publicly accessible displays at VA facilities.
• Allow patients and their guests to request and be provided religious literature, symbols and sacred texts during visits to VA chapels and during their treatment at VA.
• Allow VA to accept donations of religious literature, cards and symbols at its facilities and distribute them to VA patrons under appropriate circumstances or to a patron who requests them.

The Hill reports on the policy changes. Earlier this year, suit was filed yesterday in New Hampshire federal district court against a VA Medical Center challenging a lobby display that includes a Bible. (See prior posting.)

Britain's Appeals Court: Christian Social Work Student Improperly Suspended For Anti-Gay Facebook Postings

In Ngole v. University of Sheffield, (EWCA, July 3, 2019), England's Court of Appeal held that the University of Sheffield had unfairly removed a Christian student from its Master of Social Work program after the student posted his views on Facebook that homosexuality and same-sex marriage are sins.  The postings, in response to the jailing in 2015 of Kentucky court clerk Kim Davis for refusing to issue same-sex marriage licenses, appeared on MSNBC's Facebook page. The Court, ordering a new disciplinary hearing by the University, summarized its conclusions in part as follows:

(10) The University wrongly confused the expression of religious views with the notion of discrimination. The mere expression of views on theological grounds (e.g. that ‘homosexuality is a sin’) does not necessarily connote that the person expressing such views will discriminate on such grounds. In the present case, there was positive evidence to suggest that the Appellant had never discriminated on such grounds in the past and was not likely to do so in the future (because, as he explained, the Bible prohibited him from discriminating against anybody).

(11) The University gave different and confusing reasons for suspending the Appellant. Initially, it was said (by the Fitness to Practice Committee) that he lacked “insight” into how his NBC postings might affect his ability to carry out “his role as a social worker”; and subsequently it was said (by the Appeals Committee) that he lacked “insight” into how his NBC postings “may negatively affect the public’s view of the social work profession”. Further, at no stage during the process or the hearings did the University properly put either concern as to perception to the Appellant during the hearings.

(12) The University’s approach to sanction was, in any event, disproportionate: instead of exploring and imposing a lesser penalty, such as a warning, the University imposed the extreme penalty of dismissing the Appellant from his course, which was inappropriate in all the circumstances.

The Guardian reports on the decision.

9th Circuit En Banc Temporarily Reinstates Injunctions On Trump Administration Family Planning Rules

According to an AP report, the U.S. 9th Circuit Court of Appeals yesterday voted to vacate the 3-judge panel's decision in State of California v. Azar, and to grant en banc review of whether the Trump Administration's new regulations on family planning grants may go into effect. The new rules bar recipients of family planning grants under title X from referring clients for abortions. They also ban clinics that receive Title X funds from sharing office space with abortion providers.  Three district courts had enjoined implementation of the new rules, but a 3-judge panel of the 9th Circuit had granted a stay of the injunctions. (See prior posting.) Yesterday's action reinstates the district court injunctions while the full 9th Circuit considers the issue.

2nd Circuit Gives Broad Reading To Allow Late Filing of Asylum Application

Normally an application for asylum must be filed within one year of an alien's arrival in the United States. However, an application filed later than that may be considered if the alien demonstrates changed circumstances that materially affect his or her eligibility for asylum.  In Yang v. Barr, (2d Cir., July 2, 2019), a woman born in China applied for asylum ten years after entering the United States on a tourist visa.  The application was filed less than a month after she converted to Christianity, and asserted two grounds for asylum-- fear of persecution because of her Christian religion and a forced abortion in China eight years before she entered the United States. In a 2-1 decision, the U.S. 2nd Circuit Court of Appeals held that the change of circumstances-- her religious conversion-- means that an immigration judge may now consider both her bases for asylum, not just the one related to the conversion.

Confrontation Clause Satisfied Even Though Muslim Witness Had Face Partly Covered

In Commonwealth of Pennsylvania v. Smarr, (PA Super., July 3, 2019), a Pennsylvania state appellate court held that the Confrontation Clauses of the U.S. and Pennsylvania constitutions were not violated when a trial court allowed the sole eye-witness to a murder to testify with a colorful scarf covering her mouth and nose. The witness, a Muslim, said that she wears a face covering on Fridays, when she goes to religious services, and whenever else she feels like it. She said she was wearing it to court out of concern for her safety. Focusing on the importance of protecting the witness' free exercise rights, the court said in part:

No precedent has established that a witness’s clothing or accessories renders a physical, in-court confrontation other than face-to-face, particularly where the clothing does not obstruct the witness’s eyes, and we decline to do so under the facts of this case. We therefore hold that Smarr’s right to be brought face-to-face with his accuser was satisfied....

[T]he jury could view Brown’s eyes, and to some extent, her facial expressions; her posture, her gestures, and her body language; hear her tone of voice, her cadence, and her hesitation; and observe any nervousness, frustration, or hostility.

Pastor Sues City Council Over Censorship of His Invocation

A suit was filed in a Florida federal district court this week by a pastor whose invocation at a Jacksonville City Council meeting was cut off by the Council president who thought the invocation was too political.  The complaint (full text) in Gundy v. City of Jacksonville, (MD FL, filed 7/1/2019), alleges that Pastor Reginald Grundy's microphone was cut off 4 minutes into his invocation after he said:

Father, in the name of Jesus, we have a political climate right now that is dividing our community further and further apart because of pride and selfish ambitions. People are being intimidated, threatened, and bullied by an executive branch of our city government while cronyism and nepotism is being exercised in backrooms.

City Council President Aaron Bowman justified his action the next day on Twitter, saying:

I never envisioned a CM (council member) stooping so low to find a pastor that would agree to such a sacrilegious attack politicizing something as sacred as our invocation. It obviously was a last ditch effort to try and revive a failed term and campaign. Fortunately I control the microphone.

Grundy contends that Bowman's action violated his free speech and free exercise rights protected by the U.S. and Florida constitutions. News4JAX reports on the lawsuit.

NY Archdiocese Sues Insurers For Coverage of Anticipated Sex Abuse Claims

As reported by Church Militant and Lower Hudson News, the Catholic Archdiocese of New York last week filed suit in a state trial court against 32 of its insurance companies to force them to cover the costs of defending cases likely to be filed when the state's new Child Victims Act set to take effect in August. The suit was filed after a subsidiary of the Chubb Group refused to defend an upcoming lawsuit that alleges the Archdiocese knew or should have known about the sexual abuse that was suffered by the plaintiff. The insurance company claims that this is an event that was expected or intended by the Archdiocese, and so is not covered by its liability policy.

Vatican Reiterates Inviolability of Confessional

On Monday, the Vatican, with the approval of Pope Francis, released the Note of the Apostolic Penitentiary on the Importance of the Internal Forum and the Inviolability of the Sacramental Seal.(Full text in Italian.)   The Note reads in part [unofficial translation]:

Any political action or legislative initiative aimed at "forcing" the inviolability of the sacramental seal would constitute an unacceptable offense against the libertas Ecclesiae , which does not receive its legitimacy from individual States, but from God; it would also constitute a violation of religious freedom, legally fundamental to all other freedoms, including the freedom of conscience of individual citizens, both penitents and confessors. Breaking the seal would be tantamount to violating the poor who is in the sinner.

The Apostolic Penitentiary is a Vatican tribunal dealing with issues of confession and absolution. According to an AP report, Cardinal Piacenza, head of the tribunal, issued a statement interpreting the Note, and saying in part:

It’s opportune to make clear that the text of the statement cannot and doesn’t want to be in any way a justification or a form of tolerance of the abhorrent cases of abuse perpetrated by members of the clergy.

No compromise is acceptable in promoting the protection of minors and of vulnerable persons and in preventing and combatting every form of abuse, in the spirit of that which has been constantly reiterated (by Francis).

[Thanks to Tom Rutledge for the lead.]

Supreme Court Denies Review In Abortion Case, But Thomas Urges Future Action

Last Friday, the U.S. Supreme court denied certiorari in Harris v. West Alabama Women's Center, (Docket No. 18-837, certiorari denied 6/28/2019). In the case, the U.S. 11th Circuit Court of Appeals struck down Alabama's ban on dilation and evacuation abortions (referred to in the Alabama statute as "dismemberment abortions").  Justice Thomas filed a separate opinion concurring in the denial of review, but making a strong plea for the Court to revisit its abortion decisions.  He said in part:

The notion that anything in the Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible. But under the “undue burden” standard adopted by this Court, a restriction on abortion—even one limited to prohibiting gruesome methods—is unconstitutional if “the ‘purpose or effect’ of the provision ‘is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’” ...

This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control....  Although this case does not present the opportunity to address our demonstrably erroneous “undue burden” standard, we cannot continue blinking the reality of what this Court has wrought.