9th Circuit Upholds TRO Against Trump's Travel Ban On Due Process Grounds; Postpones Ruling On Religious Discrimination Issue

The U.S.9th Circuit Court of Appeals today, in a unanimous decision, refused to stay the Washington federal district court's temporary restraining order against enforcement of President Trump's Executive Order titled "Protecting the Nation From Foreign Terrorist Entry Into the United States." The opinion in State of Washington v. Trump, (9th Cir., Feb. 9, 2017), concludes that the government "has failed to establish that it will likely succeed on its due process argument in this appeal."  The court put off addressing plaintiffs' religious discrimination arguments, saying:

The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims. See, e.g., Church of the Lukumi Babalu Aye,Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. . . . Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”); Larson, 456 U.S. at 254-55 (holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-68 (1977) (explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decision makers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose).

The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.

Federal Employee Fired For Conducting Baptism Must Rely On Title VII, Not 1st Amendment

In Holly v. Jewell, (ND CA, Jan. 3, 2017), a California federal magistrate judge dismissed a 1st Amendment religious discrimination claim by a former maintenance worker at the San Francisco Maritime National Historic Park. Plaintiff Roger Holly, an African American Baptist Minister who was employed by the Park was fired because, while on break out of uniform, he performed a baptism on the seashore adjoining the Park.  The court held that Title VII provides the sole remedy for discrimination in federal employment, and "Plaintiff has not asserted a First Amendment violation that is distinct from his claim that he suffered employment discrimination and retaliation based on his religion."

Court Says Teacher Was Not Fired Because of His Religious Beliefs

In Diss v. Portland Public Schools, (D OR, Nov. 22, 2016), an Oregon federal magistrate judge granted summary judgment to defendants in a suit by former public school teacher William Diss who claims that he was fired because of his religious beliefs.  Diss, a devout Catholic, was active in the anti-abortion movement. When his school principal arranged for representatives of a federally-funded Teen Outreach Program to speak to students in various classes, Diss would not allow them to speak to his students because the outreach program was administered by the local Planned Parenthood organization. Diss pointed to this and to the principal's asking him to refrain from using religious phrases such as "God bless" in professional communications as evidence of violation of his First Amendment rights.  However, the court concluded:

Defendants have shown that they had valid, non-discriminatory reasons to discipline and terminate Plaintiff.  The record contains multiple reports from administrators and colleagues describing Plaintiff's ineffective and rigid teaching style, as well as a pattern of complaints about Plaintiff's disrespectful and demeaning conduct towards his students, colleagues, and administrators.

Suit Charges FLDS Towns With Discrimination Against Non-FLDS Members

The FLDS-controlled towns of Colorado City, Arizona and Hilldale, Utah, along with the FLDS Church, were sued last week in federal district court for discriminating against non-members of the Church. The allegations in the complaint (full text) in Prairie Farms. L.L.C. v. Town of Colorado City, (D AZ, filed 10/12/2016) are summarized in a news article from the Phoenix New Times:

Alleged illegal arrests by a cult-run police force have spurred a new federal lawsuit against two polygamous towns on the Arizona-Utah border.

Three businessmen who are former members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints allege ... that officials in the rural towns ... violated their constitutional rights. They claim the officers with the Colorado City/Hildale marshal's office arrested two of them for trespassing on land they were leasing, that the marshal's office failed to investigate reports of vandalism on the leased land, and that Colorado City officials refused to provide water and garbage services to the property.

Favoring Religious Over Non-Religious Objections Is Not Religious Discrimination

In Brown v. Our Lady of Lourdes Medical Center, Inc., (NJ App., Oct. 3, 2016), a New Jersey state appellate court held that a community health educator who was fired for refusing to comply with a medical center's compulsory flu vaccination policy could not establish a prima facie case of religious discrimination under New Jersey's Law Against Discrimination.  Plaintiff argued that by permitting exemptions for those with religious objections, but not for those opposed to vaccination for other reasons, her employer had discriminated by favoring religious over non-religious grounds. According to the court:

[Plaintiff]  did not allege that the adverse employment action taken against her was because of her membership in a protected class. Without any allegation that she was a member of a protected class based upon her race, color, religion, sex, or national origin, plaintiff's LAD discrimination claim was futile.

New Jersey Law Journal reports on the decision.

Settlement Reached In Suit By College Researcher Who Claimed Anti-Creationism Discrimination

The College Fix today reports that a six figure settlement has been approved by a California state trial court in Armitage v. Board of Trustees of the California State University.  In the suit (see prior posting), a former electron microscope technician in the Biology Department of California State University Northridge claimed that he was terminated because of hostility to his published research findings supporting "young earth" creationist theory. The suit alleged infringement of plaintiff's free exercise and academic freedom rights.

Workplace Program Is A "Religion" Under Title VII

In EEOC v. United Health Programs of America, (ED NY, Sept. 30, 2016), a New York federal district court in a 102-page opinion held that programs called "Onionhead" and Harnessing Happiness" that were introduced into the workplace are religious for purposes of Title VII, and not merely a conflict resolution tool. The court also refused to dismiss reverse religious discrimination and hostile work environment claims by various former employees, as well as conventional religious discrimination claim by one former employee. UPDATE: Newsday reports on the decision.

Full Text of Complaint In 2011 Discrimination Suit By Family of Alleged NY/NJ Bomber

As reported today by CNN, the family of Ahmad Khan Rahami-- the alleged New York/ New Jersey bomber-- filed a federal lawsuit in 2011 claiming religious, racial and national origin discrimination by Elizabeth, New Jersey and its police department.  At issue was the city's repeated attempts to apply a 10:00 pm closing ordinance to the Rahami's chicken restaurant, while the family contended that the restaurant came within one of the exemptions in the ordinance.  Here is the full text of the complaint filed by the family in Rahami v. City of Elizabeth,(D NJ, filed 4/6/2011). Alleged bomber Ahmad Rahami was not one of the named plaintiffs in the case.

Canadian Court Finds Human Rights Act Violation In School's Denying Prayer Space To Muslim Students

In Webber Academy Foundation v Alberta (Human Rights Commission), (AB QB, Aug. 10, 2016), a Canadian trial court in the province of Alberta upheld a decision of the Alberta Human Rights Commission finding that a private school violated the Alberta Human Rights Act by refusing to allow Muslim students a place for their daily prayers. The school argued that it is non-denominational and no kinds of religious activities are to be carried out on campus. Affirming the Human Rights Commission's $26,000 damage award, the court said in part:

Webber Academy, to its credit, adopted a public policy of welcoming young people of many faiths and cultures, and to exemplify its policy, published photographs of students with turbans and facial hair even though these practices contravened usual school policies.

For some reason, it drew the line at Sunni prayer rituals, conducted in private, in a place that was convenient to the school and the students from time to time. Its policy thus discriminated against the belief of the complainant Sunni Muslim students as compared, for example, to students who overtly averred their religious affiliation by forms of dress and grooming. There was no demonstrated hardship, let alone undue hardship, motivating this policy.

Canadian Press reports on the decision.

New Jersey Appeals Court OKs Religiously Discriminatory Disinheritance

In In re the Estate of  Kenneth E. Jameson, (NJ App., Aug. 12, 2016), a New Jersey appeals court
held that New Jersey law does not bar an individual from disinheriting his or her child for religiously discriminatory reasons. At issue was a will challenge by Stacy Wolin whose parents' wills were drafted when she was in college and in a romantic relationship with Marc Wolin, a Jewish man who she later married.  Her Catholic parents objected strenuously to her dating Marc because of his Jewish faith.  The court rejected a series of challenges to the father's will, including ones charging religious discrimination, saying that neither the New Jersey Law Against Discrimination nor New Jersey public policy bars disinheriting a child based on religion or religious affiliation.  AP reports on the decision.  [Thanks to Tom Rutledge for the lead.]

Fired Lobbyist Sues Catholic Advocacy Group For Religious Discrimination

Albuquerque Journal reports on a religious discrimination lawsuit filed last Thursday against the non-profit Catholic advocacy group CHI St. Joseph’s Children and against Allen Sanchez, the executive director of the New Mexico Council of Catholic Bishops.  Plaintiff Miguel Gómez worked as a lobbyist and policy advisor for the advocacy group from 2010 until he was fired earlier this year.  Gomez claims he was fired because Sanchez discovered he is not a Catholic, discovered Gomez considers abortion sometimes morally permissible and had encouraged his pregnant girlfriend to have an abortion.  The suit claims that because CHI is not affiliated with the Archdiocese of Santa Fe, it is subject to the prohibition on religious discrimination in employment found in federal and New Mexico law.

French Mayor Will Ban Women's Swim Because of Required Modest Dress

In France, the mayor of Pennes-Mirabeau-- a town near Marseille with a large Muslim population-- says he will ban a swim day for women planned at a local park for next month.  According to an AP report yesterday, the event is planned by the socio-cultural group Smile 13.  Women swimming at the event will be required to be covered from knee to chest (awra) in accordance with Muslim notions of modesty.  Mayor Michel Amiel says the decision to call for women to swim covered up is a "provocative act" and risks disturbing the public order after the recent terrorist attacks in Nice and at a Normandy church. [Thanks to Scott Mange for the lead.]

ABA To Vote On Anti-Discrimination Professional Conduct Rule

At the American Bar Association Annual Meeting which begins this Thursday in San Francisco, the House of Delegates will vote on an amendment to the Model Rules of Professional Conduct 8.4 (full text of amended Rule and Comment) which will make it professional misconduct for a lawyer to:

(g) harass or discriminate on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This Rule does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16.

The amendment replaces a current comment the merely bars bias prejudicial to the administration of justice in representing clients. The new proposal apparently has some opposition.  In a piece published today in the conservative American Thinker, a former Regent Law School Dean and a former Reagan Administration official argue among other things:

Statutes accommodating religious conscience abound at both the state and federal level.  Law schools with an overtly religious mission, including the hiring, faculty, and admission of students, enjoy ABA accreditation.  Nationwide, lawyers and law firms hold themselves out to the public as Christians, letting the community know that they are dedicated to practicing law in accordance with ethical rules of their personal faith.  Why should such law firms be barred from hiring lawyers which share the same religious convictions?  Indeed, the Holy Scriptures counsel believers not to become "unequally yoked" with nonbelievers.  2 Corinthians 6:14.  Are Christian lawyers to be barred by ethics rules from obeying Biblical statutes?  Why should lawyers not be free to hire and fire staff on the basis of fidelity to their shared moral code? ... Why should a lawyer be penalized if he candidly advises potential clients what that code is?... 

Libertarian Candidate On Religious Liberty

The Washington Examiner yesterday posted an interview with Libertarian Party candidate for President (and former New Mexico governor), Gary Johnson, focusing largely on Johnson's views on religious liberty issues.  Here is an excerpt:

Do you think New Mexico was right to fine the photographer for not photographing the gay wedding?

"Look. Here's the issue. You've narrowly defined this. But if we allow for discrimination — if we pass a law that allows for discrimination on the basis of religion — literally, we're gonna open up a can of worms when it come stop discrimination of all forms, starting with Muslims … who knows. You're narrowly looking at a situation where if you broaden that, I just tell you — on the basis of religious freedom, being able to discriminate — something that is currently not allowed — discrimination will exist in places we never dreamed of."

Israel's Parliament Enacts Law To Circumvent Court Ruling On Use of Mikvehs By Non-Orthodox Jewish Groups

According to the Jerusalem Post, in Israel on Monday the Knesset (Parliament) passed a controversial law that essentially circumvents an Israeli Supreme Court ruling last February (see prior posting) that opened publicly funded mikvehs  (ritual bath facilities) operated by Orthodox-controlled religious councils for use by the Conservative and Reform Jewish movements for their conversion ceremonies as well as for Orthodox conversions. The new law allows local rabbinates to limit which groups can use public mikveh facilities, essentially assuring that they will only be open to Orthodox Jewish use. At the same time, the government has proposed that the Jewish Agency-- whose funds come largely from private contributions by Jewish communities outside of Israel-- build up to four mikvehs for use by the Reform and Conservative Jewish movements. The new law does not take effect for nine months to provide time for these new mikvehs to be built. The more liberal streams of Judaism doubt whether the construction can take place that quickly. This is part of a broader struggle by non-Orthodox streams of Judaism to gain more official recognition in Israel, and strong Orthodox resistance to those attempts.

2016 Democratic Platform on Religious Discrimination

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the first in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Here are two Platform excerpts that deal with religious discrimination:

Fixing our Broken Immigration System

...We reject attempts to impose a religious test to bar immigrants or refugees from entering the United States. It is un-American and runs counter to the founding principles of this country....

Guaranteeing Civil Rights

Democrats will always fight to end discrimination on the basis of race, ethnicity, national origin, language, religion, gender, age, sexual orientation, gender identity, or disability. We need to promote civility and speak out against bigotry and other forms of intolerance that have entered our political discourse. It is unacceptable to target, defame, or exclude anyone because of their race, ethnicity, national origin, language, religion, gender, age, sexual orientation, gender identity, or disability. While freedom of expression is a fundamental constitutional principle, we must condemn hate speech that creates a fertile climate for violence. We condemn Donald Trump’s demonization of prisoners of war, women, Muslims, Mexicans, and people with disabilities; his playing coy with white supremacists; and the climate of bigotry he is creating. We also condemn the recent uptick in other forms of hate speech, like anti-Semitism and Islamophobia....

Criticism of Religious Scholarship Is Not Religious Discrimination

Hascall v. Duquesne University of the Holy Spirit, (WD PA, June 28, 2016), is a suit by a Duquesne University Law School faculty member, Susan Hascall, who was denied tenure. A Pennsylvania federal district court refused to dismiss her charges of gender discrimination and retaliation. However it did, among others, dismiss her religious discrimination claim, holding that:

Plaintiff's attempts to rely on her scholarship of Islamic law as a sincerely held religious belief are misplaced.... Scholarship in Islamic and Sharia law does not, on its own, create a sincerely held religious belief. Plaintiff has pointed to no evidence that she herself practices Islam as a religion. Indeed, Plaintiff states in her Amended Complaint that she has not converted to Islam.... Without a sincerely held belief in Islam, Plaintiff cannot establish a claim for religious discrimination.... Plaintiff may very well have been subject to ridicule and derision from her colleagues due to the subject matter of her choice of scholarship; however, such conduct is not prohibited by law.

Legal Intelligencer reports on the decision.

College Tennis Player Sues For Religious Discrimination

The Washington Times reports on a religious discrimination lawsuit filed last week in Idaho federal district court by a former player on the Idaho State University tennis team.  The suit also alleges negligence, infliction of emotional distress and other causes of action growing out of harassment of plaintiff Orin Duffin by his teammates and his coaches.  The complaint (full text) in Duffin v. Idaho State University, (D ID, filed 5/20/2016) alleges that when the team learned that Duffin was a Mormon, his coaches began to harass him, in part through inappropriate questions about sexual practices and his religious beliefs.  The harassment peaked after he told the team that he would be on his mission call in Taiwan the following school year. While the team was staying in Las Vegas, one of the coaches arranged a trip to a strip club, provided the team with alcoholic beverages, and sent two prostitutes to Duffin's room to tempt him. Duffin became the butt of jokes and comments after the Las Vegas trip.

Suit Against Jeweler Says Employee Was Fired For Saying That Jews Killed Jesus

The New York Daily News last week reported on a lawsuit filed in federal district court in Manhattan by a former marketing executive at the upscale jeweler, Tiffany & Co.  Kristin Rightnour, a devout Catholic, says she was reprimanded and placed on probation for telling a Jewish colleague, in a conversation about Easter, that Catholics believe the Jewish people killed Jesus. Then, she alleges, she was skipped over for promotion and eventually fired after she filed a complaint with the EEOC.

Lawsuit Charges Restaurant With Discriminating Against Muslim Patrons

The Orange County Register reported yesterday on the messy facts surrounding a discrimination lawsuit filed by 7 Muslim women against a Laguna Beach, California restaurant.  On April 22, the women, most of whom were wearing hijabs, were sitting at a table on the uncrowded outdoor patio near the restaurant entrance.  They  were asked to leave for violating the restaurant's rule against remaining at a table more than 45 minutes after eating. The Register report fills in further details:

 “The women were singled out and targeted because they appeared to be Muslim,” said attorney Mohammad Tajsar. “Urth Caffe targeted these women as a way of cleansing their location of women that appeared to be Muslim to appease the Islamaphobia in a predominantly white Laguna Beach community.”

Shallom Berkman, owner of Urth Caffe, disputed the claims. His wife, Jilla, who is Muslim, was the one who advised management to call police after the women became rude toward restaurant staff, he said.

Urth Caffe announced Wednesday that it is being represented by the American Freedom Law Center, a firm that specializes in faith-based lawsuits.

“Urth Caffe did not discriminate against the women who have filed this fraudulent lawsuit," said David Yerushalmi, co-founder and senior counsel for the center. “The lead plaintiff (Sara Farsakh) in the frivolous lawsuit is ... a college-age activist for Palestinian causes. We intend to sue Farsakh and her co-conspirators for trespass and to seek damages.”