8th Circuit Embraces Historical Practices Test In Upholding "In God We Trust" on Currency

In New Doe Child #1 v. United States, (8th Cir., Aug. 28, 2018), the U.S. 8th Circuit Court of Appeals rejected a constitutional challenge to the placement of the motto "In God We Trust" on U.S. coins and currency.  While the result is consistent with that of numerous other circuits, the analysis set out by the majority opinion is of particular interest. Judge Gruender, writing for himself and Judge Beam, takes the position that the Supreme Court's decision in Town of
Greece v. Galloway  signaled a "'major doctrinal shift' in Establishment Clause jurisprudence," explaining:

In Galloway, the Supreme Court offered an unequivocal directive: “[T]he Establishment Clause must be interpreted by reference to historical practices and understandings.”...[H]istorical practices often reveal what the Establishment Clause was originally understood to permit, while attention to coercion highlights what it has long been understood to prohibit....

... [H]istorical practices confirm that the Establishment Clause does not require courts to purge the Government of all religious reflection or to “evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage.”....

 Here, we recognize that convenience may lead some Plaintiffs to carry cash, but nothing compels them to assert their trust in God. Certainly no “reasonable observer” would think that the Government is attempting to force citizens to express trust in God with every monetary transaction.... Indeed, the core of the Plaintiffs’ argument is that they are continually confronted with “what they feel is an offensive religious message.” But Galloway makes clear that “[o]ffense . . . does not equate to coercion.”

Judge Kelly's concurring opinion argues that Galloway was merely a clarification of exiting Establishment Clause doctrine, not a sea change in it; but that exiting Supreme Court case law upholds the motto.

Judge Gruender, in portions of his opinion joined by all 3 judges on the panel, went on to reject plaintiffs' free speech, free exercise, RFRA and equal protection challenges.  In considering plaintiffs' RFRA challenge, the court held that plaintiffs have failed to allege a "substantial burden" on their exercise of religion, saying in part:

Here, the complaint alleges that the cost of the Plaintiffs’ adherence to their religious convictions is “relinquishing the convenience of carrying the nation’s money.” While cash may be a convenient means of participating in the economy, there are many alternatives that would not violate the Plaintiffs’ stated beliefs....

We recognize that, in limited circumstances, there may not be a viable cash alternative. But the complaint does not allege that the Plaintiffs are unable to make necessary or even regular purchases, and we do not think that difficulty buying “a popsicle from the neighborhood ice cream truck” or using a coin-operated laundry machine is what the Supreme Court had in mind when it said that RFRA protects against the denial of “full participation in the economic life of the Nation.” See Hobby Lobby, 134 S. Ct. at 2775-76, 2779, 2783.

Becket Fund issued a press release announcing the decision. Reuters reports on the decision.

Court Orders More Briefs On RFRA Defense By Peace Protesters

In an Order last week in United States v. Kelly, 2018 U.S. Dist. LEXIS 138195, (SD GA, Aug. 15, 2018), a Georgia federal magistrate judge instructed both sides to provide additional briefing on the "particularized issues raised by Defendants' RFRA defense" in the prosecution of peace activists for breaking into Naval Submarine Base Kings Bay. Defendants argue that their "symbolic disarmament" of nuclear weapons at the base was an exercise of their sincerely held Catholic beliefs.  In ordering additional briefs, the court said in part:

At the August 2, 2018 motions hearing, counsel for both the Government and Defendants represented to the Court that Defendants' RFRA claim as a defense to criminal prosecution was an issue of first impression and that the applicability of RFRA to federal criminal law was an open question.... Subsequent to the hearing, however, the Government filed Supplemental Briefing that acknowledged RFRA's applicability to criminal prosecutions and its availability as a defense.... The Government now contends that Defendants' actions ... were not religious in nature and ... even assuming they were, the Government contends it has a compelling interest in protecting Naval Submarine Base Kings Bay....

Brunswick News reports on the court's Order.

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

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

6th and 7th Circuits Reject Challenge To "In God We Trust" On Currency

The U.S. 6th Circuit Court of Appeals in a 2-1 decision rejected claims by a group of plaintiffs-- atheists, humanists and one Jewish plaintiff-- that statutes requiring placing of the national motto, In God We Trust, on currency violates RFRA, as well as protections of free speech, free exercise and equal protection.  In Doe v. Congress of the United States, (6th Cir., May 29, 2018), the majority said in part:

Plaintiffs’ allegations indicate that at least some legislators who voted to enact the currency statutes intended to promote a Christian monotheistic message. However, intent to promote one religion is not necessarily intent to suppress another; Plaintiffs’ allegations do not show a specific governmental intent to infringe upon, restrict, or suppress other religious beliefs. Plaintiffs argue that the currency statutes nonetheless effect suppression of Atheist beliefs by requiring the Government to constantly spread speech that is akin to “Atheists Are Wrong.” But the incidental effect of suppression is permissible under the Free Exercise Clause absent restrictive intent: The laws must have been “enacted because of, not merely in spite of their suppression.”

Judge Moore, dissenting in part, contended that:

All but four of the plaintiffs have sufficiently pleaded factual allegations demonstrating that the inscription substantially burdens their religion and have thus pleaded a plausible violation of RFRA....

[T]he thirty-nine plaintiffs who allege that they are required to utilize coins and cash on a regular basis have sufficiently alleged that they face an untenable choice between violating their religious beliefs or being excluded “from full participation in the economic life of the Nation,”

In Mayle v. United States, (7th Cir., May 31, 2018), the U.S. 7th Circuit Court of Appeals held that neither the Establishment clause nor RFRA, nor the free speech clause, is violated by the printing the national motto, "In God We Trust", on currency, saying in part:

The inclusion of the motto on currency is similar to other ways in which secular symbols give a nod to the nation’s religious heritage.

In rejecting the claim of plaintiff Kenneth Mayle, an adherent of non-theistic Satanism, the court said in part:

Mayle argues that having the motto printed on currency forces him to choose between using cash, a necessary part of life, and violating his sincerely held religious beliefs. Using the currency makes him feel “guilt, shame and above all else fear,” and those feelings, he contends, qualify as a substantial burden. He likens himself to a fundamentalist Christian baker who would be forced to endorse gay marriage—a practice that violates his religious beliefs—by selling a couple a wedding cake. This term the Supreme Court is considering that baker’s case.... No matter how that case is decided, however, no reasonable person would believe that using currency has religious significance....  [B]ecause using money is not a religious exercise, and the motto has secular as well as religious significance, Mayle has not plausibly alleged that the motto’s placement on currency increases the burden on practicing Satanism.... Mayle’s feelings are not insignificant, but the burden he experiences is not substantial.

Doctor Says His Free Exercise Rights Are Infringed By Blocking Him From Assisting Protester

An unusual religious free exercise lawsuit was filed in a Virginia federal district court yesterday by Greg Gelburd, a physician who says that he continually practices his religious belief of providing medical assistance to those in need.  The complaint (full text) in Gelburd v. Christiansen, (WD VA, filed 6/16/2018), contends that the U.S. Forest Service is preventing him from providing medical assistance to a "tree sitting" protester who is attempting to block a pipeline from being constructed in the George Washington and Jefferson National Forest.  The protester, a woman who has become known as "Nutty", has, for the past six weeks, been preventing pipeline construction by occupying a "monopad" atop a tall pole in the pipeline path. Forest Service employees are attempting to end Nutty's protest by denying her food, water, various services and the ability to communicate with others. Dr. Gelburd claims that his rights under the Religious Freedom Restoration Act and the First Amendment's religion and speech clauses are infringed by the government's actions.  The Rutherford Institute issued a press release announcing the filing of the lawsuit.

2nd Circuit: Damages Available In Individual Capacity Suits Under RFRA

In Tanvir v. Tanzin, (2d Cir., May 2, 2018), the U.S. 2nd Circuit Court of Appeals held that under the Religious Freedom Restoration Act, a plaintiff may sue federal officials in their individual capacities and may recover monetary damages from them. The holding comes in a lawsuit by three Muslims who claim that their names were placed on the "No Fly List" in retaliation for their refusal to serve as government informants.  The Court, reversing the district court and remanding, said in part:

We agree with the Third Circuit’s reasoning in Mack [v. Warden Loretto FCI] and adopt it here. In particular, we reject a strained reading of “appropriate relief” that would be less generous to plaintiffs under RFRA than under implied rights of action, and thus would undermine Congress’s intention to “provide broad religious liberty protections.” Id.  Further, as one district court has pointed out, “[i]t seems unlikely that Congress would restrict the kind of remedies available to plaintiffs who challenge free exercise violations in the same statute it passed to elevate the kind of scrutiny to which such challenges would be entitled.” Jama, 343 F. Supp.2d at 374‐75 (emphasis in original).

Courthouse News Service reports on the decision. [Thanks to Daniel Benson for the lead.]

Creativity Movement Is Not A "Religion"

In Hale v. Federal Bureau of Prisons, (D CO, March 28, 2018), a Colorado federal district court in a 33-page opinion held that the White supremacist Creativity movement is not a "religion" for purposes of the Free Exercise clause of the First Amendment or the Religious Freedom Restoration Act.  In reaching this conclusion, the court (applying tests from a 1996 10th Circuit opinion) said that while Creativity has many of the accoutrements of religion, several other factors weigh against accepting its claim as being religious:

Creativity lacks an ultimate belief system that addresses philosophical and existential issues such as the nature of man, whether there is life after death, what role man plays in the universe, and the like. These beliefs address only the relative positions of people of different races during their lifetimes. Thus, the Court finds that Creativity fails to address ultimate ideas or metaphysical issues because it lacks any cosmological, teleological and existential focus....

Creativity does have a moral or ethical system, found mostly in its commandments. These commandments take definitive positions on what constitutes good, evil, right, and wrong in Creativity’s belief system. However, the system is less of a system and more of a single, binary precept.... Also at the same time, Creativity creates duties to itself, not to a higher power. There is no religious connotation to Creativity’s moral or ethical system; it is entirely based on the secular concern of white supremacy....

Creativity does not attempt to answer human kind’s basic questions; it either avoids questions or to the extent it has an answer, that answer is reduced to the single-dimensional idea of white dominance. 

6th Circuit: Funeral Home Violated Title VII By Firing Transgender Employee

In EEOC v. R.G & G.R. Harris Funeral Homes, Inc., (6th Cir., March 7, 2018), the U.S. 6th Circuit Court of Appeals reversed the dismissal of a Title VII religious discrimination suit against a Michigan funeral home that fired Aimee Stephens, a transgender employee (funeral director/embalmer) who was in the process of transitioning from male to female. In a 49-page opinion, the court held first that Stephens was illegally fired because of her failure to conform to sex stereotypes.  The funeral home owner decided to fire Stephens "because Stephens was 'no longer going to represent himself as a man' and 'wanted to dress as a woman'."

The court also held that:

discrimination on the basis of transgender and transitioning status violates Title VII.

Moving to defenses raised by the funeral home, including its defense under RFRA which the district court had relied upon, the court held:

the Funeral Home does not qualify for the ministerial exception to Title VII; the Funeral Home’s religious exercise would not be substantially burdened by continuing to employ Stephens without discriminating against her on the basis of sex stereotypes; the EEOC has established that it has a compelling interest in ensuring the Funeral Home complies with Title VII; and enforcement of Title VII is necessarily the least restrictive way to achieve that compelling interest.

Explaining its rejection of defendant's claim of a substantial burden under RFRA, the court said in part:

...simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA. We presume that the “line [Rost] draw[s]”—namely, that permitting Stephens to represent herself as a woman would cause him to “violate God’s commands” because it would make him “directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift,” ... —constitutes “an honest conviction.”...  But we hold that, as a matter of law, tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.

Slate reports on the decision. [Thanks to Steven H. Sholk and Tom Rutledge for the lead.] 

Destruction of Native American Burial Site Did Not Violate RFRA

In Slockish v U.S. Federal Highway Administration, (D OR, March 2, 2018), an Oregon federal magistrate judge recommended dismissing a RFRA challenge to the destruction of sacred Native American burial grounds in widening a highway.  Relying on Supreme Court and 9th Circuit precedent, the court held:

As in Lyng and Navajo Nation, plaintiffs contend that the sacred site at issue, which is located on federal land, has been desecrated and destroyed. Yet, as in those cases, plaintiffs have not established that they are being coerced to act contrary to their religious beliefs under the threat of sanctions or that a governmental benefit is being conditioned upon conduct that would violate their religious beliefs. Without these critical elements, plaintiffs cannot establish a substantial burden under the RFRA.

Becket issued a press release announcing the decision.

Court Says Enforcing Contraceptive Mandate Against Christian College Violates RFRA

Last October, the Trump Administration issued Interim Final Rules that expanded exemptions from the Affordable Care Act contraceptive coverage mandate for organizations, colleges and businesses that have religious or moral objections to furnishing coverage for employees (or enrolled students), as well as for employees who object to having such coverage. (See prior posting.)  Shortly thereafter, the government entered settlement agreements in at least 13 cases conceding that the mandate imposes a substantial burden on plaintiffs’ exercise of religion and, thus, cannot be legally enforced against them under RFRA. (See prior posting).  In December, two separate federal district courts issued nationwide preliminary injunctions against enforcement of the Trump Administration's expanded exemptions. (See prior postings 1, 2).

Now this week in Wheaton College v. Azar, (ND IL, Feb. 22, 2018),  an Illinois federal district court granted Wheaton College a permanent injunction barring enforcement against it of the contraceptive coverage mandate to the extent that the mandate violates Wheaton College's conscience.  Wheaton is a Christian liberal arts college.  The court's decision came after the government conceded that enforcement of the mandate against the college would violate the Religious Freedom Restoration Act. Becket issued a press release announcing the decision.

Nuns Argue RFRA Claim As To Pipeline Before 3rd Circuit

On Friday the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Adorers of the Blood of  Christ v. FERC.  In the case, a Pennsylvania federal district court dismissed for lack of jurisdiction a RFRA challenge by a Catholic order of nuns to the construction and operation of the Atlantic Sunrise gas pipeline through land owned by the order. (See prior posting.)  At issue is whether the nuns should have used procedures set out in the Natural Gas Act to raise their objections. NPR reports on the oral arguments.

Church Camp Loses Challenge To Zoning Decision On Neighboring Dairy Farm

In House of Prayer Ministries, Inc. v. Rush County Board of Zoning Appeals, (IN App., Jan. 16, 2018), an Indiana state appeals court rejected a challenge by a church summer camp to a zoning board decision granting a special exception to a dairy farm to operate a concentrated animal feeding operation one-half mile from the summer camp.  The church argued in part that the grant of the special exception substantially burdens its religious exercise by "imperiling the health of the children" at its camp.  The court first held that the federal Religious Land Use and Institutionalized Persons Act is not available to the church here because a RLUIPA claim can be raised only by a person with a property interest in the land that is regulated.  RLUIPA does not extend to other property that is merely affected by a land use decision as to neighboring land.

The court went on to hold that Indiana's state Religious Freedom Restoration Act was also not violated:

The [Board of Zoning Appeal's] apparent assessment that House of Prayer will not be substantially burdened in the exercise of its religion by the grant of the special exception is supported by substantial evidence.

Indiana Lawyer reports on the decision.

Belief In Government Corruption Is Not a "Religious" Belief

The Daily Sentinel reports that last Thursday a Colorado federal district court jury found Rocky Hutson guilty on multiple fraud charges.  Hutson, a member of the sovereign citizen movement, had attempted to use the Religious Freedom Restoration Act as a defense.  However federal district court Judge Marcia Krieger rejected the defense, saying that while Hutson's beliefs about the corruption of the U.S. government are sincere, but they are not "religious" beliefs.

Court Issues Nationwide Injunction Against Expanded ACA Contraceptive Mandate Exemptions

In Commonwealth of Pennsylvania v. Trump, (ED PA, Dec. 15, 2017), a Pennsylvania federal district court granted a nationwide preliminary injunction  against enforcement of the Interim Final Rules issued by the Trump Administration in October (see prior posting) expanding exemptions from the ACA contraceptive coverage mandate for those with religious or moral objections.  First, in a lengthy discussion, the court concluded that Pennsylvania has standing to bring the challenge because of its "quasi-sovereign interest in safeguarding the health and wellbeing of its women residents," and because it will now "have to increase its expenditures for State and local programs providing contraceptive services."

The court, without reaching constitutional challenges, found that plaintiffs had shown a likelihood of success on the merits because of two types of violations of the Administrative Procedure Act: the government violated the APA's notice-and-comment requirements and the new rules are "arbitrary, capricious, or not in accordance with law."  Characterizing as "matryoshkanesque in its construction" the government's argument that it has statutory authority to bypass the notice-and-comment requirement, the court said: "The argument is creative, but not supported by law." Similarly the court rejected the government's argument that it had "good cause" to bypass the notice-and-comment requirement.

Examining whether the new rules are inconsistent with the Affordable Care Act, the court was particularly critical of the "moral exemption" rule, saying in part:

The Moral Exemption Rule allows any non-profit or for-profit organization that is not publicly traded to deny contraceptive coverage for its employees for any sincerely held moral conviction. This means that boards of closely held corporations can vote, or their executives can decide, to deny contraceptive coverage for the corporation’s women employees not just for religious reasons but also for any inchoate – albeit sincerely held – moral reason they can articulate. Who determines whether the expressed moral reason is sincere or not or, for that matter, whether it falls within the bounds of morality or is merely a preference choice, is not found within the terms of the Moral Exemption Rule. If one assumes that it is the Agency Defendants – or, indeed, any agency – then the Rule has conjured up a world where a government entity is empowered to impose its own version of morality on each one of us. That cannot be right.

The court went on to reject the government's argument that the new religious exemption is required by the Religious Freedom Restoration Act, citing cases in which the Third Circuit has found that the prior accommodation process governing religious objections did not impose a substantial burden on the exercise of religion.  Pennsylvania's attorney general issued a press release announcing the decision.  New York Times reports on the decision. [Thanks to Tom Rutledge for the lead.]

DC Transit Authority's Ban On Religious Ads Upheld

In Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, (D DC, Dec. 8, 2017), the DC federal district court upheld advertising Guidelines of the Washington Metropolitan Area Transit Authority which, among other things, bar transit vehicle ads "that promote or oppose any religion, religious practice or belief."  The Catholic Archdiocese challenged the application of this Guideline after WMATA refused to allow the Archdiocese's "Find the Perfect Gift" Christmas campaign ad.  The ad, intended for the exterior of public buses, was designed "to invite the public to consider the spiritual meaning of Christmas..." Denying a preliminary injunction, the court found that plaintiff is unlikely to succeed  on the merits of its free speech, free exercise, equal protection or RFRA arguments.

Rejecting the Archdiocese's free speech claim, the court held that the exterior of a bus in not a "public forum," and WMATA's restriction is neutral and reasonable.  The court said in part:

plaintiff maintains that the Guideline has been discriminatorily and arbitrarily enforced, favoring other religious advertisements over those sponsored by the Catholic Archdiocese.... But the record does not support this contention. None of the advertisements plaintiff highlights to make that point – neither the ads heralding the opening of another CorePower Yoga fitness studio in Clarendon, Virginia (“Muscle + Mantra”), nor the ads soliciting contributions to the Salvation Army’s Red Kettle effort (“Give Hope. Change Lives”) “promote or oppose any religion.”

Rejecting plaintiff's RFRA argument, the court said that no "substantial burden" or religious exercise was shown here:

... RFRA decisions turn on an element of compulsion, and here plaintiff is under no pressure to do anything. The fact that plaintiff has a sincere belief in spreading the gospel is not in dispute, but the existence of that belief, and even the sincere desire to act in accordance with it, is not enough to sustain a claim.

Washington Post reports on the decision.

Nuns Lose Challenge To Pipeline

In Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, (ED PA, Sept. 28, 2017), a Pennsylvania federal district court dismissed for lack of jurisdiction a RFRA challenge by a Catholic order of nuns to the construction and operation of the Atlantic Sunrise gas pipeline through land owned by the order.  The nuns say their religious beliefs require them to protect and preserve creation.  The court held that the Natural Gas Act sets out a procedure for challenging a FERC grant of a certificate to build an interstate pipeline.  Plaintiffs here did not follow those procedures which require first that challengers request a rehearing from the agency, and then review by the Court of Appeals.  The court concluded that the Religious Freedom Restoration Act does not supersede the exclusive jurisdiction provision of the Natural Gas Act. Lancaster Online reports on the decision. (See prior related posting.)

Sikh Cadets Sue West Point Over Headgear Requirement

Two cadets who are observant Sikhs and who enrolled in the U.S. Military Academy at West Point filed suit in a Michigan federal district court yesterday contending that the Army has failed to follow its own regulations that allow Sikhs to serve without giving up their Sikh grooming and dress obligations.  The complaint (full text) in New Cadet Candidate Chahal v. Seamands, (ED MI, filed 8/14/2017), asserts that the Sikh cadets

are only welcome to remain at the Academy with their unshorn hair, beards, and turban on one condition: they must agree to wear the West Point “tar bucket”—a decorative hat worn in ceremonial parades a few times each year....

 For them, wearing the tar bucket over, or in place of, their turbans would desecrate their religious values....

The suit claims that requiring the cadets to wear the "tar bucket" violates their rights under the 1st and 5th Amendments and under RFRA.  Courthouse News Service reports on the lawsuit.

Catholic Order Sues To Force Rerouting of Pipeline

A religious Order of Catholic women last week filed suit in a Pennsylvania federal district court contending that a decision of the Federal Energy Regulatory Commission violates the Religious Freedom Restoration Act. The complaint (full text) in Adorers of the Blood of Christ v. Federal Energy Regulator Commission, (ED PA, filed 7/14/2017), contends that FERC's approval of the Atlantic Sunrise Pipeline route running through the religious Order's property, and giving Transcontinental Pipeline Company the power to take the land by eminent domain, substantially burdens the Order's religious belief that it must protect and preserve the land it owns. The suit contends that because FERC could approve an alternative route that goes around the property owned by the Catholic Order, it has not used the least restrictive means to achieve its goal. Adorers announced the lawsuit in a blog post.

3rd Circuit Rejects Religious Practice Defenses By Rabbis In Divorce Kidnapping Prosecutions

In United States v. Stimler, (3d Cir., July 7, 2017), the U.S. 3rd Circuit Court of Appeals upheld the convictions of three Orthodox Jewish rabbis for kidnapping related offenses.  The rabbis were involved in Jewish religious court (beth din) proceedings which would authorize forcible actions against a recalcitrant husband to convince him to provide his civilly divorced wife with a religious divorce document (a get).  They worked with "muscle men" who would be paid to kidnap and torture the targeted husband. Among the issues raised on appeal were two that focused explicitly on religious freedom claims.

The rabbis asserted that because it is a religious commandment to help a civilly divorced wife obtain a get, it violates their rights under the Religious Freedom Restoration Act (RFRA) to prosecute them for their role in doing so.  The appeals court rejected that argument, concluding that while the prosecution "undoubtedly constituted a burden on their sincerely held religious beliefs," it was not a "substantial" burden, saying in part:

the District Court properly analyzed whether the burden was “substantial” by looking to acceptable alternative means of religious practice that remained available to the defendants. Here, none of the defendants argue that they are unable to participate in the mitzvah of liberating agunot without engaging in kidnapping; as the District Court noted, “it is unclear whether all non-violent methods were exhausted before the alleged kidnappings took place here.” The defendants do not challenge this determination on appeal.... 

The court added that even if there were a "substantial" burden, "the government has a compelling interest in uniform application of laws about violent crimes and that no other effective means of such uniformity existed."

The appeals court also rejected the argument of one of the defendants that his joinder with the other two amounted to a separate RFRA violation.

The appeals court also upheld the district court's refusal to admit evidence about Jewish religious law and the religious motivation for the defendants' actions.  The federal kidnapping statute requires that the kidnapping be committed for some reward or benefit. The court held that the religious benefit of performing a mitzvah (commandment) is sufficient to come within the statute. It also apparently agreed with the district court's conclusion that a religious motivation does not negate criminal intent.  Additionally, the court rejected defendants' argument that the husbands, by practicing Orthodox Judaism and signing a marriage contract, implicitly agreed to the use of force that might be authorized by a Jewish religious court. Finally, on the evidentiary issue, the court said:

We further agree with the District Court that any marginal relevance that the religious evidence may have had was substantially outweighed by the prejudicial impact it would have had on the trial. Suggesting that the defendants acted for a religious purpose might have given rise to the potential for jury nullification, which we have held is substantially prejudicial.

NJ Advance Media reports on some of the other issues covered by the decision. [Thanks to Tom Rutledge for being the first reader to send me the lead.]

Supreme Court Denies Cert. In RFRA Challenge To Court Martial

The U.S. Supreme Court yesterday denied review in Sterling v. United States,(Docket No. 16-814, cert. denied 6/5/2017) (Order List).  In the case, the U.S. Court of Appeals for the Armed Forces held that a Marine Lance Corporal failed to establish a prima facie case under RFRA of a substantial burden to sincerely held religious beliefs in defending against charges growing out of her work space posting of unauthorized signs containing Biblical quotations. (See prior posting.)  Fox News reports on the Supreme Court's action.