6th Circuit: Bus Ad Ban Is Unconstituitonal

In American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation (SMART), (6th Cir., Oct. 23, 2020), the U.S. 6th Circuit Court of Appeals held unconstitutional a Detroit public transit authority's rejections of an ad aimed at Muslims considering leaving Islam. The ad read:

Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com.

The ads were rejected under rules banning political ads and ads that hold up a group of people to scorn or ridicule.  The court said in part:

SMART’s ban on “political” ads is unreasonable for the same reason that a state’s ban on “political” apparel at polling places is unreasonable: SMART offers no “sensible basis for distinguishing what may come in from what must stay out.” Mansky, 138 S. Ct. at 1888. Likewise, SMART’s ban on ads that engage in “scorn or ridicule” is not viewpoint neutral for the same reason that a ban on trademarks that disparage people is not viewpoint neutral: For any group, “an applicant may [display] a positive or benign [ad] but not a derogatory one.” Matal v. Tam, 137 S. Ct. 1744.

Courthouse News Service reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Report Contends UAE-Bahrain-Israel Deal Could Change Status Quo On Temple Mount

Relying on a Report from the NGO Terrestrial Jerusalem, Al Jazeeera says that a clause in the UAE-Bahrain normalization agreements with Israel could lead to a change in status of the Temple Mount/ Al-Aqsa compound. Under the current status quo arrangements, only Muslims can pray on the Temple Mount/ Al-Aqsa compound.  President Trump's Middle East Peace Plan called for the Temple Mount to be open to worshipers of all faiths. However a later clarification by U.S. Ambassador to Israel David Friedman  said: "The status quo, in the manner that it is observed today, will continue absent an agreement to the contrary." Recent statements by the UAE and Bahrain are now being seen as signaling a breach of the status quo arrangement.

Donald Trump's Peace Plan carefully referred to the Temple Mount as "Temple Mount/Haram al-Sharif."  The August 13 Joint Statement by the UAE, Israel and the United States as well as the September 11 Joint Statement by Bahrain, Israel and the U.S. include the following statement which refers only to Al Aqsa Mosque:

As set forth in the Vision for Peace, all Muslims who come in peace may visit and pray at the Al Aqsa Mosque, and Jerusalem’s other holy sites should remain open for peaceful worshippers of all faiths.

According to the Terrestrial Jerusalem Report:

Israel defines Al Aqsa as the structure of the mosque, as does the wording of the Statement, whereas Muslims define Al Aqsa as the entire esplanade of Haram al Sharif/the Temple Mount. Consequently, according to Israel (and apparently to the United States), anything on the Mount that is not the structure of the mosque is defined as "one of Jerusalem's other holy sites", and open to prayer by all – including Jews. Accordingly, Jews may now be permitted to pray on the Temple Mount, just not in the mosque....

Both the Israeli Prime Minister and the US negotiating team fully understand the significance of every word and every nuance relating to Jerusalem in general, and to the Temple Mount/Haram Al Sharif in particular. Consequently, this choice of terminology is neither random nor a misstep, and cannot seen as anything but an intentional, albeit surreptitious attempt to leave the door wide open to Jewish prayer on the Temple Mount, thereby radically changing the status quo.

Muslim Woman Sues After She Was Forced To Remove Her Hijab

Last week, a Muslim woman sued a Michigan county and two State Police officers for requiring her to remove her hijab when she was booked and arraigned on an outstanding warrant after a traffic stop. The process caused her to be viewed by a number of men with he head uncovered, in violation of her religious beliefs. The complaint (full text) in Cave v. Genesee County, (ED MI, filed 8/26/2020) asserts violations of the Free Exercise Clause, RLUIPA and the Equal Protection Clause. NBC25 News reports on the lawsuit.

10th Circuit: Inmate Has Equal Protection, But Not RFRA, Claim Over Prayer Space

 In Tenison v. Byrd, (10th Cir., Aug. 28, 2020), the U.S. Tenth Circuit Court of Appeals reversed an Oklahoma federal district court's dismissal of a Muslim inmate's claim that his equal protection rights were violated when he was not allowed to pray in the prison day room. Plaintiff alleged that Christian prayer was allowed in day rooms. The court concluded:

If believed, Tenison’s evidence is sufficient for a reasonable factfinder to conclude that Christians seeking to practice their religion in the dayroom deliberately are treated differently (and more favorably) than Muslims.

The court, however, rejected plaintiff's claim that his free exercise rights under the 1st Amendment and RFRA were  substantially burdened, saying in part:

We are not persuaded, however, that requiring Tenison to return to his cell to pray either prevents him from praying or subjects him to substantial pressure not to pray. Tenison is not prevented from praying; he simply must plan his dayroom time around the times he must be in his cell to pray. And having to forgo an unspecified amount of dayroom time does not amount to substantial pressure not to return to his cell to pray.

11th Circuit: Shame To Muslim Family From Assault Allegations Allows Woman To Proceed As Jane Doe

In Doe v. Neversome, (11 Cir., July 30, 2020), the U.S. 11th Circuit Court of Appeals held that that a Florida federal district court abused its discretion when it refused to allow a plaintiff in a sexual assault and battery action against a musical celebrity. The court said in part:

Here Ms. Doe ... asserts that because she is from a “devout Muslim family,” the “very nature of her allegations would be sufficient to bring harm to [herself] and shame to her family under the cultural/religious traditions that her family practices.”... The district court erred by treating Ms. Doe’s motion as merely alleging personal embarrassment, without accounting for what she actually alleged or considering our social stigma cases.

We also note that, under our precedent, the district court may have too easily discounted evidence that Ms. Doe would be subject to threats and harassment if she were required to proceed under her real name.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Various Challenges To Terrorism Watch List Practices Can Move Ahead

In El Ali v. Barr, (D MD, July 20, 2020), a Maryland federal district court allowed some of the plaintiffs to move ahead with challenges to practices involving inclusion on terrorism watch lists. The court explained:

Plaintiffs are 39 individuals—37 U.S. citizens and two legal residents—who claim that inclusion in the Government’s Terrorism Screening Database (“TSDB”) and various related Watchlists impair or prohibit air and land travel in the United States. Plaintiffs allege that their list status, or status by association with those on a list, subjects them to constitutionally impermissible detentions, searches, and screening at airports and land border entries, or in some cases, denial of air travel altogether. Relatedly, Plaintiffs allege that their list status has burdened their families and businesses, and inflicted other wide-ranging harms.

Among the claims that can move ahead are claims of intentional religious and racial discrimination, as well as Religious Freedom Restoration Act complaints that individuals were interrogated about their Muslim religious practices, and that interrogations and detentions interfered with the ability to perform Umrah and Hajj. The court dismissed the claim that offers to clear up plaintiffs' problems if they would act as FBI informants imposed a substantial burden on their religious exercise. CAIR issued a press release announcing the decision.

Turkey's President Converts Hagia Sophia Museum Back Into A Mosque

AP reports on the controversial move by Turkey's President to change the status of a UNESCO World Heritage site:

The president of Turkey on Friday formally reconverted Istanbul’s sixth-century Hagia Sophia into a mosque and declared it open for Muslim worship....

The decision sparked deep dismay among Orthodox Christians. Originally a cathedral, Hagia Sophia was turned into a mosque after Istanbul's conquest by the Ottoman Empire but had been a museum for the last 86 years, drawing millions of tourists annually.....

Turkey's high administrative court threw its weight behind a petition brought by a religious group and annulled the 1934 Cabinet decision that turned the site into a museum. Within hours, President Recep Tayyip Erdogan signed a decree handing over Hagia Sophia to Turkey's Religious Affairs Presidency.

DOJ Sues Virginia County Over Restrictions On Creating Muslim Cemetery

Last week, the U.S. Department of Justice filed a federal RLUIPA lawsuit against Stafford County, Virginia. The complaint (full text) in United States v. Stafford County, Virginia, (ED VA, filed 5/19/2020) alleges in part that the county has imposed:

restrictive zoning requirements that preclude the All Muslim Association of America ... from establishing an Islamic cemetery on land it owns, thereby impeding its religious practice of providing low-cost burial services to persons of the Islamic faith. The County’s actions constitute a substantial burden on the free exercise of the religion of the All Muslim Association, in violation of the  Religious Land Use and Institutionalized Persons Act of 2000....

The Justice Department issued a press release announcing the filing of the lawsuit.

4th Circuit Dismisses "Muslim Ban" Lawsuits

In International Refugee Assistance Project v. Trump, (4th Cir., June 8, 2020), the U.S. 4th Circuit Court of Appeals dismissed three separate actions challenging President Trump's restrictions on the entry of foreign nationals from specified countries.  Among other things, plaintiffs contended that the Executive Order was "inexplicable by anything but animus toward Muslims." The Court of Appeals, relying on the U.S. Supreme Court's decision in Trump v. Hawaii, concluded:

At bottom, in view of the Supreme Court’s conclusions with respect to Proclamation 9645 in Hawaii, we conclude that the plaintiffs’ constitutional claims in this case lack the plausibility necessary to survive the government’s motion to dismiss under Rule 12(b)(6).

AP reports on the decision.

Congress Passes Uyghur Human Rights Policy Act

Congress yesterday gave final passage to the Uyghur Human Rights Policy Act of 2020 (full text). The bill now goes to the President for his signature. The bill addresses China's human rights violations targeted at Uyghurs, ethnic Kazakhs, Kyrgyz, and other Muslim minority groups in Xinjiang Uyghur Autonomous Region. It calls on the President and the State Department to take specific actions against China, including designating China as a country of particular concern under the International Religious Freedom Act. The bill also calls for various reports on the topic to be submitted to Congress and the imposition of sanctions on foreigners responsible for these human rights violations.

Presidential Message On Eid al-Fitr

Yesterday was Eid al-Fitr. On Saturday the White House posted a Presidential Message (full text) sending greetings to Muslims in the United States and around the world as they celebrated the feast. the message reads in part:

Over the past weeks and months, as we have fought the coronavirus, we have relied on our faith, family, and friends to help guide us through these unprecedented times.  As Muslims observe the day of Eid al-Fitr, we hope they find both comfort and strength in the healing powers of prayer and devotion.

European Court Says Muslim Inmate's Religious Rights Were Infringed In Russian Prison

The European Court of Human Rights this week handed down an opinion in the case of a Muslim inmate in a Russian prison who claims that his religious rights were infringed in violation of the European Convention on Human Rights when he was reprimanded for praying in the middle of the night during Ramadan.  In Korostelev v. Russia, (ECHR, May 12, 2020), the court said in part:

Religious freedom is primarily a matter of individual thought and conscience..... However, ... freedom of religion also encompasses the freedom to manifest one’s belief.... The manifestation of religious belief may take the form of worship, teaching, practice and observance.... Since the manifestation by one person of his or her religious belief may have an impact on others, ... any limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein...

From the Government’s submission and the findings of the domestic authorities, it appears that the only reason for disciplining the applicant was the formal incompatibility of his actions with the prison schedule and the authorities’ attempt to ensure full and unconditional compliance with that schedule by every prisoner.

... Although the Court recognises the importance of prison discipline, it cannot accept such a formalistic approach, which palpably disregarded the applicant’s individual situation and did not take into account the requirement of striking a fair balance between the competing private and public interests.

The court in a chamber judgment awarded plaintiff 2600 Euros in damages and another 2000 Euros for costs and expenses. Law & Religion UK reports further on the case.

South African Court Upholds COVID-19 Ban Over Objections of Mosque and Its Imams

Challenges to COVID-19 Orders by houses of worship are not limited to the United States.  In Mohamed v. President of the Republic of South Africa, (SA High Ct., April 30, 2020), a South African trial court judge rejected a challenge to the country's lock down order brought by a mosque and two of its imams and worshipers. The Order, issued under the Disaster Management Act 2002, effectively required all houses of worship to be closed down. The court described the claims being asserted:

According to the applicants, they believe it is obligatory to perform the five daily prayers in congregation and at mosque. Although they admit that their views are not held by the majority of Muslims throughout the country, they claim that the Lockdown Regulations violate their constitutional rights to freedom of movement, freedom of religion, freedom of association (including religious association) and the right to dignity....

... [A]pplicants seek, not just an order exempting them from the restrictions placed on congregational worship, but all persons. 

Section 36 of South Africa' Constitution provides:

The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors....

The court concluded:

This pandemic poses a serious threat to every person throughout South Africa and their right to life, dignity, freedom of movement, right to access healthcare and their right to a clean, safe and healthy environment. In a country where we are dominated by so much poverty, where people don’t have access to basic amenities such as clean running water, housing, food and healthcare, the potential risk to those households poses a further threat which places an additional burden on the Government to combat – the risk then, in light of those circumstances rises exponentially....

To the extent that the Government has put together its Task Team, has consulted exhaustively with them to ensure the safety of its citizens in order to “flatten the curve” and prevent an already fragile health system from being overwhelmed, I cannot find that the restrictions imposed are either unreasonable or unjustifiable and thus the application must fail.

GroundUp reports on the decision.

Negligent Violation of Inmate's Religious Dietary Needs Did Not Violate 1st Amendment

In Mbonyunkiza v. Beasley, (8th Cir., April 24, 2020), the U.S. 8th Circuit Court of Appeals held:

absent evidence that an underlying prison regulation or policy violates the Free Exercise Clause, evidence that a correction official negligently failed to comply with an inmate’s sincerely held religious dietary beliefs does not establish a Free Exercise Clause claim under §1983.

In the case, a Muslim inmate claimed that four times in 257 days, prison kitchen staff served him meals containing pork products. In rejecting plaintiff's claim, the court said in part:

[T]he Supreme Court’s cases, and all the Eighth Circuit Free Exercise decisions our research has uncovered, have involved claims alleging that a statute, or a regulation or policy implementing a statute, unconstitutionally prohibited a sincerely held religious belief or otherwise unduly burdened the free exercise of religion.

By contrast, in this case NCF’s food policies affirmatively accommodate the beliefs of inmates who do not eat pork for religious reasons. Mbonyunkiza does not challenge those policies. Rather, his Supplemental Complaint asserts that defendants are liable in damages because they did not properly implement those policies on certain occasions.

President Trump Issues Message of Good Wishes As Ramadan Begins

The Muslim holy month of Ramadan began yesterday. President Trump issued a message (full text) wishing all Muslims in the U.S. and around the world a blessed and peaceful Ramadan. The message said in part:

Over the past months, we have seen how important the power of prayer can be during challenging times.  Today, as the holy month of Ramadan commences, I pray that those who are observing this sacred time find comfort and reassurance in their faith.

Interesting RFRA Case Involving Proof of Infant's Citizenship

Sabra v. Pompeo, (D DC, April 2, 2020), is an unusual RFRA case.  Mohammed Sabra and his wife Ponn Sabra are United States Citizens.  Here are Mrs. Sabra's claims, as recounted by the court:

In September 2018, Mrs. Sabra moved from the United States to Gaza with her three daughters because her two eldest daughters attend college there.... After arriving in Gaza, Mrs. Sabra discovered that she was pregnant with Baby M....  Mrs. Sabra decided to stay in Gaza to be close to Mr. Sabra’s family there....

In 2019, Baby M was born at home in Gaza just after intense bombing was going on in Gaza City.  In June 2019, Mrs Sabra contacted the U.S. embassy in Israel seeking an emergency appointment at the Erez Crossing to obtain a Counselor Report of Birth Abroad and a passport for Baby M.  The parents indicated that they needed to seek medical treatment for Baby M in the United States.  Because Mrs. Sabra was 46 years old, the consulate insisted on additional evidence establishing that she was in fact the baby's mother.  The embassy ultimately insisted on photos of Mrs. Sabra during her pregnancy and DNA testing of Baby M.  However the Sabra's, who are Muslim, objected:

... Mr. Sabra has a “strong religious hesitation” to DNA testing, whereas Mrs. Sabra has an “absolute religious objection” to the DNA testing of Baby M.... With respect to the photographs, Plaintiff’s counsel confirmed that there are two photographs of Mrs. Sabra during the pregnancy, but Mr. and Mrs. Sabra refuse to provide those photographs to the Embassy based on religious objections..... The basis ... is that the photographs are “very personal,” they were “taken in an intimate in-house setting with just the family,” and “for religious views, [they] should [not] be seen by anyone outside of the family ever.”

In an 87-page opinion that deals with a number of other issues as well, the court refused to dismiss plaintiffs' RFRA claims, saying in part:

There is a genuine dispute as to whether the Embassy’s request for the DNA testing and Mrs. Sabra’s pregnancy photographs served a compelling interest by the least restrictive means.

7th Circuit Upholds Prison Rule Limiting Off-Bunk Prayers

In Larry v. Goldsmith, (7th Cir., March 30, 2020), the U.S. 7th Circuit Court of Appeals upheld as reasonably related to a legitimate penological interest a prison rule that prohibits inmates from praying off their bunks after 9:00 pm. The policy was challenged by a Muslim inmate who was disciplined for praying next to his bunk at a prohibited time.

Air Force Changes Rules To Accommodate Religious Headgear and Beards

As reported by the Air Force Times, the Air Force earlier this month (Feb. 7) amended its Dress and Personal Appearance rules to allow airmen to request a waiver to permit wearing of conservative religious apparel, (Full text of amended Air Force Instruction.) The amended rules specifically address the wearing of hijabs, beards, and turbans or under-turbans/ patkas with uncut beard and uncut hair. The Army issued similar rules in 2017. (See prior posting.) [Thanks to Scott Mange for the lead.]

Suit In India Over Discriminatory Citizenship Law

In India, the state of Kerala has filed suit in the Supreme Court challenging as discriminatory the Citizenship Amendment Act, 2019, and various prior rules on citizenship for members of certain religious minorities who entered the country illegally. The complaint (full text) in State of Kerala v. Union of India, (India Sup. Ct., filed 1/14/2020), alleges in part:

The Impugned Amendment Act and Rules and Orders, though cover the persecuted religious minorities of Pakistan, Afghanistan and Bangladesh, overlooks the issues of Rohingyas in Myanmar and Muslims in Sri Lanka, who are also miniscule minorities in the said countries, which are also sharing international borders with India and which are also countries to which and from which there has been trans- border migrations....

The Impugned Amendment Act and Rules and Orders are discriminatory in so far it covers only religious persecution, among persecutions on very many grounds, of an irrationally chosen class of minorities in an unreasonably chosen class of neighbouring countries.... They do not cover the persecutions on the grounds of ethnicity, linguistics etc even in the said class of three countries. They do not cover the ethnic issues of Balochs, Sindhis, Pakthuns and Mohajirs in Pakistan and the Biharis in Bangladesh.

Jurist reports on the lawsuit. (See prior related posting.)

India's Supreme Couirt Will Review Controversial Citizenship Law Amendments

On Dec. 12, India's Citizenship (Amendment) Act, 2019 (full text) that was passed by Parliament received assent of the President.  The controversial new law  allows migrants who came into India from Afghanistan, Bangladesh, or Pakistan on or before December 31, 2014, and who belong to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian religious communities, to become citizens. It does not include Muslims from those nations. (Background),  Muslims fear that the new law is part of Home Minister Amit Shah's plan to create a nationwide citizens' register to weed out illegal immigrants.  Now, according to Bloomberg, India's Supreme Court, in response to more than 50 petitions, will review the constitutionality of the new law. An initial hearing is scheduled for January 22.