Religion Clause

Monday, October 15, 2018

Certiorari Denied In Suit Against Palestinian Authority for Shooting of Jewish Worshipers In West Bank

The U.S. Supreme Court today denied review in Livnat v. Palestinian Authority, (Docket No. 17-508, certiorari denied 10/15/2018). (Order List). In the case the D.C. Circuit Court of Appeals held (full text of decision) that the the 5th Amendment's due process clause precludes U.S. courts from asserting jurisdiction in a suit by the families of Jewish worshipers who were shot in the West Bank territories of Israel by Palestinian Authority armed guards at the holy site of Joseph’s Tomb.

China Is Engaged In Mass Detention of Muslims

A New York Times story posted Saturday reports that the Chinese government is engaged in mass detention of Muslims:

In a campaign that has drawn condemnation around the world, hundreds of thousands of Uighurs and other Muslim minorities have been held in “transformation” camps across Xinjiang for weeks, months or years at a time, according to former inmates and their relatives.

Beijing says the facilities provide job training and legal education for Uighurs and has denied carrying out mass detentions.

But speeches, reports and other documents online offer a clearer account than previously reported of how China’s top leaders set in motion and escalated the indoctrination campaign, which aims to eradicate all but the mildest expressions of Islamic faith and any yearning for an independent Uighur homeland.

Sunday, October 14, 2018

HHS Grants to Catholic Bishops Conference Upheld

In ACLU of Northern California v. Azar, (ND CA, Oct. 11, 2018), a California federal district court granted summary judgment to the government in the ACLU's Establishment Clause challenge to HHS's choice of the U.S. Conference of Catholic Bishops as a grantee under the Unaccompanied Alien Children Program (UACP) and the Trafficking Victim Assistance Program (TVAP). The ACLU focused particularly on the refusal of sub-grantees to directly refer clients for abortion or contraception services. However children in custody in UACP who sought an abortion were transferred to a secular provider that did not have objections, and to an independent medical provider when contraception services were sought. The Bishops' Conference ultimately removed language from its documents that would have prevented TVAP sub-grantees from providing abortion or contraception services. The court held in part:

The government’s grant relationship and interactions with the Bishops Conference in the record in this litigation are not sufficiently likely to be perceived as an endorsement of the Conference’s religious beliefs....

The record here shows that the government’s UACP and TVAP grant money was used to provide general secular care services to unaccompanied minors and that no government money was used for proselytization, religious education, religious facilities, religious items, religious literature, or other religious activity. There is no evidence that the ACLU, or any taxpayer, was forced to monetarily subsidize the Bishops Conference’s religious beliefs. To the extent that the Conference declined to provide unaccompanied minors with access to abortion or contraception services, it did not use any government tax money to do so, and thus its actions are not properly the subject of a taxpayer-standing suit.

Pope Francis Accepts Archbishop Wuerl's Resignation

Crux reports that on Friday Pope Francis accepted the resignation of Cardinal Donald Wuerl as Archbishop of Washington after controversy over Wuerl's handling of sex abuse cases in the 1980's and 1990's when he headed the Pittsburgh Diocese. In a letter from the Pope (full text) accepting Wuerl's resignation, Pope Francis asked him to stay on as Apostolic Administrator until his successor is appointed. In the letter to Wuerl, the Pope said in part:

You have sufficient elements to “justify” your actions and distinguish between what it means to cover up crimes or not to deal with problems, and to commit some mistakes. However, your nobility has led you not to choose this way of defense. Of this, I am proud and thank you.

In this way, you make clear the intent to put God’s Project first, before any kind of personal project, including what could be considered as good for the Church. Your renunciation is a sign of your availability and docility to the Spirit who continues to act in his Church.

Saturday, October 13, 2018

Turkey Releases American Pastor

The Washington Post reported yesterday:

American pastor Andrew Brunson flew out of Turkey late Friday after a Turkish court convicted him of aiding terrorism but sentenced him only to time served. His release came one day after U.S. officials said a deal had been reached with Turkey’s government to secure his freedom....

The case of the evangelical Christian preacher caught up in Turkey’s post-coup security sweep had garnered attention at the highest levels of the U.S. government and become a sore point in the two countries’ relationship.

The White House, through the Press Secretary, issued a press release welcoming Pastor Brunson's release. (See prior related posting.)

Norway's Supreme Court Upholds Doctor's Conscience Rights

According to Irish Legal News, in a decision published last Thursday, Norway's Supreme Court held that the European Convention on Human Rights requires health authorities to respect a doctor's conscientious objection to performing certain medical procedures. Dr. Katarzyna Jachimowicz had been fired from her position in a medical clinic after she refused an order to insert an IUD in a patient. She claims that the IUD may act as an abortifacient, and her Christian faith opposes abortion.

Friday, October 12, 2018

Suit Challenges IRS Church Exemption From Filing Form 990

A lawsuit was filed yesterday in D.C. federal district court challenging the exemption for churches from filing annual Form 990 with the Internal Revenue Service. The exemption is set out in Internal Revenue Code Sec. 6033(a)(3). The complaint (full text) in Nonbelief Relief, Inc. v. Kauter, (D DC, filed 10/11/2018), contends that:

The information return exemption given to churches and other religious organizations constitutes discrimination on the basis of religion in violation of the Establishment Clause.

The suit was filed by a nonprofit organization set up by the Executive Board
of the Freedom From Religion Foundation for nonbelievers to use to channel contributions for relieving human suffering and injustice on a global scale, whether from natural disasters, human actions or adherence to religious dogma. The organization's non-profit status was suspended for its failure to file Form 990 for 3 years. FFRF issued a press release announcing the filing of the lawsuit.

7th Circuit Upholds Wisconsin's Limit on Busing Benefit To One School of Each Denomination In District

In St. Augustine School v. Evers, (7th Cir., Oct. 11, 2018), the U.S. 7th Circuit Court of Appeals, in a 2-1- decision, upheld Wisconsin's statue which requires school districts to bus private school students, but limits the obligation to only one private school affiliated with the same religious denomination or sponsoring group in each attendance district. St. Augustine school did not qualify for busing because another Catholic school in the district qualified first. The majority rejected free exercise and Establishment Clause challenges to the arrangement, saying in part:

The reason why St. Augustine cannot demand services within its desired attendance zone is not because it is a Catholic school; it is because—by its own choice—it professes to be affiliated with a group that already has a school in that zone. By the same token, Wisconsin is not denying the Forros a transit subsidy because they are Catholic or because they seek to send their children to Catholic school. It funds transportation for all of the Catholic families who send their children to St. Gabriel. The problem for St. Augustine is not that it is Catholic; it is that it is second in line.

Judge Ripple dissented arguing that St. Augustine and St. Gabriel should not be seen as affiliated with the same denomination because St. Augustine is organizationally unaffiliated with the Catholic Archdiocese.

Dreiband Confirmed As Assistant AG For Civil Rights Division

Reuters reports that Eric Dreiband was confirmed by the U.S. Senate yesterday by a vote of 50-47 to become Assistant Attorney General heading the Justice Department's Civil Rights Division. Dreiband is currently a partner at the law firm of Jones Day. Prior to that he served as the EEOC's general counsel. (Bio). U.S. Law Week reports that many civil rights activists opposed Dreiband's nomination, recounting:

Dreiband represented the University of North Carolina when it implemented policies under the state’s since-repealed “bathroom bill,” requiring people to use gender-designated restroom facilities based on the biological sex listed on their birth certificates....

Dreiband unsuccessfully represented Abercrombie & Fitch Co. in a case in which a Muslim teenager alleged the clothing company refused to hire her because she wore a religious head scarf. He led a discrimination lawsuit challenging Abercrombie’s employee appearance requirements while at the EEOC but took the opposite position when he went into private practice.

Rabbi Sues Condo Association For Religious and Disability Accommodations

Jersey Shore Online reports on a lawsuit filed yesterday in New Jersey federal district court by a retired Orthodox rabbi against his condominium association claiming religious and disability discrimination. Rabbi Philip Lefkowitz moved to the Jackson, NJ senior living community with his two sons in 2016. All three are confined to wheelchairs because of complications from diabetes. Lefkowitz seeks permission to build a Sukkah -- a temporary structure for the Fall holiday of Sukkot-- that is larger than the association bylaws permit in order for the structure to be wheelchair accessible. He is also asking that a path be built between the sidewalk and a nearby gate that is currently kept locked. He wants the gate equipped with a Sabbath-accessible lock so he and his sons can get to religious services.

Recent Prisoner Free Exercise Cases

In Jasmaine v. Futrelle, 2018 U.S. Dist. LEXIS 164821 (ED NC, Sept. 26, 2018), a North Carolina federal district court dismissed a complaint by a Wiccan inmate that group worship was not provided because of too few adherents to satisfy the minimum requirement for providing it.

In Jenkins v. Sinclair, 2018 U.S. Dist. LEXIS 164485 (WD WA, Sept. 25, 2018), a Washington federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 165580, Sept. 4, 2018) and dismissed a Muslim inmate's complaint that he can no longer obtain prayer oil from his preferred outside vendor and is denied access to donated prayer oil unless he attends services of Muslim sects with which he disagrees.

In Newsome v. Fairley, 2018 U.S. Dist. LEXIS 165994 (SD MS, Sept. 27, 2018), a Mississippi federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 166587, Aug. 3, 2018) and refused to issue a TRO or preliminary injunction in a suit by an inmate practicing the Natsarim faith seeking to obtain immersion baptism, a kosher diet and religious counseling.

In Hatcher v. Rubenstein, 2018 U.S. Dist. LEXIS 166045 (SD WV, Sept. 27, 2018), a West Virginia federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 168091, Aug. 8, 2018) and dismissed a Muslim inmate's complaints regarding lack of Halal meat and his inability to wear his kufi throughout the prison.

In Jones v. Galske, 2018 U.S. Dist. LEXIS 166331 (ED WI, Sept. 27, 2018), a Wisconsin federal magistrate judge dismissed an inmate's claim that her 1st Amendment rights were infringed when she was not released into the dayroom to watch televised bible study.

In Mann v. Spatney, 2018 U.S. Dist. LEXIS 166847 (ND OH, Sept. 27, 2018), an Ohio federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 166570, July 31, 2018) and dismissed claims by a Native American inmate that there are no Native American materials in the chapel library and complaints about access to sacred herbs, sweat lodge, spiritual advisor, smudging and observance of holy days.

In Gawlik v. Semple, 2018 Conn. Super. LEXIS 2305 (CT Super. Ct., Aug. 31, 2018), a Connecticut state trial court, after a bench trial, ruled against plaintiff who complained about policies that prevented him from receiving various books, newspapers, blank cards and envelopes, decorated cards and artwork. Plaintiff, who was serving a 60 year sentence for murder, was studying in the hopes of becoming a Catholic priest.

In Richardson v. Welch, 2018 U.S. Dist. LEXIS 167224 (WD VA, Sept. 28, 2018), a Virginia federal district court dismissed a complaint by a Nation of Islam adherent that prison authorities refuse to recognize the NOI practice of observing Ramadan in December, instead of on the lunar cycle recognized by other Muslims.

Tax Court: "Pastoral Gifts" Were Taxable Income

In a 36-page opinion peppered with New Testament quotations and citations, the U.S. Tax Court in Felton v. Commissioner, (US TC, Oct. 10, 2018) held that the over $200,000 per year that congregants donated to Rev. Wayne Felton should be taxed as income rather than treated as gifts. The amounts were received in "Pastoral Gift" envelopes that were available to congregants each week. The court explained:

The dispute between the Commissioner and the Feltons has roots deep in Christian history, and both parties can see their positions staked out as far back as St. Paul. “Who planteth a vineyard, and eateth not of the fruit thereof? Or who feedeth a flock, and eateth not of the milk of the flock?” 1 Cor. 9:7. And “[e]ven so hath the Lord ordained that they which preach the gospel should live of the gospel.” 1 Cor. 9:14. In our era, the Commissioner might have argued, all this milk and fruit constitute income upon receipt. See sec. 61 (gross income defined as income from whatever source deriveth).

But the relationship between a pastor and his flock is far from entirely commercial, and the Feltons argue that, at least in part, they are supported by gifts, not wages justly bargained for and justly earned in the marketplace: “[W]hen I preach the gospel, I may make the gospel of Christ without charge, that I abuse not my power in the gospel.” 1 Cor. 9:18. And “[y]e sent once and again unto my necessity. Not because I desire a gift: but I desire fruit that may abound to your account. But I have all, and abound: I am full.” Phil. 4:16-18.

We have already found that the transfers--whether gifts or compensation-- have left the Feltons very full indeed. But our tax system is somewhat more complicated than the ancients’, and meeting its exactions can only rarely be extinguished with the draught of a single fish. See Matt. 17:27. To decide this case, we must therefore descend from the sacred to the profane.

The court also approved of the tax penalties assessed by the IRS. [Thanks to Steven H. Sholk for the lead.]

Thursday, October 11, 2018

EEOC Sued Over Enforcement of LGBT Protections Without Religious Exemption

A class action lawsuit was filed last week in a Texas federal district court against the EEOC on behalf of all churches that oppose homosexual or transgender behavior for sincere religious reasons and on behalf of all businesses with similar beliefs. The complaint (full text) in U.S. Pastor Council v. EEOC, (ND TX, filed 10/6/2018), says that the EEOC interprets Title VII as covering employment discrimination on the basis of sexual orientation or gender identity, without a religious exemption. It contends that this violates RFRA and the First Amendment. the suit seeks to enjoin the federal government from interpreting or enforcing Title VII in a manner that requires churches or businesses with religious objections to recognize same-sex marriage or extend spousal benefits to same-sex partners, or to require objecting businesses to allow employees to use rest rooms reserved for persons of the opposite biological sex. It also asks the court to require that any future EEOC guidance on Title VII's application to gay or transgender individuals include a religious exemption. The lawsuit was filed by the same law firm that has recently filed two challenges to Austin, Texas' anti-discrimination ordinances. (See prior posting.) [Thanks to Jeff Pasek for the lead.]

Quebec Appellate Court Allows Litigant To Wear Hijab In Courtroom

A Canadian appellate court has upheld the right of a litigant to wear a hijab in the courtroom. In El-Alloul v. Attorney General of Quebec, (QCCA, Oct. 3, 2018), the Quebec Court of Appeals held:

[72] Contrary to what the trial judge decided, the provisions of the Regulation of the Court of Québec dealing with the dress code do not prohibit a litigant from wearing a religious head scarf (hijab) in a courtroom when that practice results from a sincerely-held religious belief. It is only where that practice could conflict with an overriding public interest, such as another person’s constitutional rights, that a court may restrict it in a courtroom environment. The provisions of the Regulation of the Court of Québec dealing with court attire, in and of themselves, do not express such an overriding public interest sufficient to restrict the constitutional right to freedom of religious expression....

[91] ... [I]t is not necessary for a trial judge to test the sincerity of religious beliefs and practices each time someone appears in a courtroom wearing religious garments, particularly where such garments are well-known, such as a hijab for a Muslim woman, a Roman collar for a Catholic priest, a kippa for an orthodox Jew, etc. This is also the case for those litigants wearing a pendant or other suitable religious jewelry. Where the religious practice is well known and understood, there is rarely a need to proceed to an inquiry. As rightly noted by Justice Iacobucci in Syndicat Northcrest v. Anselem: “an intrusive government inquiry into the nature of a claimant’s beliefs would in itself threaten the values of religious liberty”....

[93] Of course, from time to time, there may occur situations which warrant further inquiry; it is incumbent on trial judges to identify these situations by using common sense. An example is the full facial covering, such as the niqab, which raises issues related to the proper identification of litigants, the proper assessment of the credibility of witnesses and the fairness of the judicial proceedings....

Lawyer's Daily reports on the decision.

U.N. Experts Decry Prosecution of Baha'is In Yemen

In a press release yesterday, the United Nations Human Rights Office of the High Commissioner has called for the Shia Muslim Houthi rebels who control the city of Sana'a in Yemen to stop the persecution of Baha'is. The release focuses on the prosecution of 24 individuals, 22 of whom are Baha'is, in Sana's Specialized Criminal Court on charges of apostasy, teaching of the Baha'i faith and espionage. The espionage charges are punishable by death. UN News reports on the call by U.N. experts.

Second Broad Challenge To Austin's Anti- Discrimination Ordinances Filed

Following a federal court lawsuit filed last week by churches challenging Austin, Texas' ban on employment discrimination (see prior posting), a broader lawsuit has been filed in state court challenging the application of Austin's public accommodation, housing and employment discrimination ordinances to any individual or business that has religious objections to homosexual or transgender behavior. The complaint (full text) in Texas Values v. City of Austin, (TX Dist. Ct., filed 10/8/2018) asks the court to declare that the ordinances violate Texas Religious Freedom Restoration Act and the Texas Constitution

to the extent that they: (a) prohibit individuals and entities from refusing to hire or retain practicing homosexuals or transgendered people as employees for reasons based in sincere religious belief; (b) prohibit individuals and entities from refusing to rent their property to tenants who are engaged in non-marital sex of any sort, including homosexual behavior, for reasons based in sincere religious belief; (c) prohibit individuals and entities from declining to participate in or lend support to homosexual marriage or commitment ceremonies, for reasons based in sincere religious belief; and (d) prohibit individuals and entities from declining to provide spousal employment benefits to the same-sex partners or spouses of employees, for reasons based in sincere religious belief; (e) prohibit individuals and entities from establishing sex-specific restrooms and limiting them to members of the appropriate biological sex, for reasons based in sincere religious belief.

Austin Statesman reports on the lawsuit.

Wednesday, October 10, 2018

UK Supreme Court Rules In Favor of Baker Who Refused To Supply Cake Supporting Gay Marriage

In a widely followed case, the United Kingdom Supreme Court today ruled in favor of Christian bakers in a case that became particularly high profile after the U.S. Supreme Court's Masterpiece Cakeshop decision. In Lee v. Ashers Baking Company Ltd, (UKSC, Oct. 10, 2018), the court framed the question-- which arose under anti-discrimination provisions in the law of Northern Ireland-- as follows:

The substantive question in this case is whether it is unlawful discrimination, either on grounds of sexual orientation, or on grounds of religious belief or political opinion, for a bakery to refuse to supply a cake iced with the message “support gay marriage” because of the sincere religious belief of its owners that gay marriage is inconsistent with Biblical teaching and therefore unacceptable to God.

Rejecting the claim that the bakery engaged in direct discrimination on the basis of sexual orientation, the court said in part:

The reason for treating Mr Lee less favourably than other would-be customers was not his sexual orientation but the message he wanted to be iced on the cake. Anyone who wanted that message would have been treated in the same way.... By definition, direct discrimination is treating people differently....

In a nutshell, the objection was to the message and not to any particular person or persons....

Experience has shown that the providers of employment, education, accommodation, goods, facilities and services do not always treat people with equal dignity and respect, especially if they have certain personal characteristics which are now protected by the law. It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope.

The court also rejected the contention that the bakery had discriminated against Mr. Lee on the basis of his political opinion:

The objection was not to Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage. The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not to the man.... The situation is not comparable to people being refused jobs, accommodation or business simply because of their religious faith. It is more akin to a Christian printing business being required to print leaflets promoting an atheist message.

The court went on to hold that were the bakery required to furnish the cake, it would violate the owners' freedom of conscience and free expression rights protected by Articles 9 and 10 of the European Convention on Human Rights. The court gave a broad interpretation to the rights:

[T]here is no requirement that the person who is compelled to speak can only complain if he is thought by others to support the message. Mrs McArthur may have been worried that others would see the Ashers logo on the cake box and think that they supported the campaign. But that is by the way: what matters is that by being required to produce the cake they were being required to express a message with which they deeply disagreed.

In a Postscript, the court discussed the U.S. Supreme Court's Masterpiece Cakeshop opinion. The court also issued a Press Summary of the opinion. Irish Times reports on the decision.
[Thanks to Marty Lederman and Seth Tillman via Religionlaw for the lead.] [This post has been updated to eliminate the statement that this case was "analogous" to Masterpiece Cakeshop.]

Alaska Borough's Invocation Policy Held Unconstitutional

KBBI News reports that an Alaska state trial court judge yesterday in Hunt v. Kenai Peninsula Borough (complaint) held that the Kenai Peninsula Borough's invocation policy violates the Establishment Clause of the Alaska Constitution. The Borough implemented a policy that allows only representatives of pre-approved religious organizations to offer invocations at meetings of the Kenai Peninsula Borough Assembly. The move came after a member of the Satanic Temple offered an invocation that ended with "Hail Satan."

Churches Sue For Exemptions From City's Employment Non-Discrimination Ordinance

A Texas-based organization of churches has filed suit against the city of Austin claiming that the city's non-discrimination ordinance violates member churches' federal and state constitutional rights and Texas' Religious Freedom Restoration Act. The complaint (full text) in U.S. Pastor Council v. City of Austin, (WD TX, filed 10/6/2018), contends that the Austin ordinance which bans employment discrimination on the basis of sex, sexual orientation or gender identity infringes the rights of churches that will not hire women as senior pastors or which will not hire practicing homosexuals or transgendered individuals for any church position. The only religious exemptions set out in the Austin ordinance are for religious institutions' hiring on the basis of religion. The complaint declares that objecting churches "rely on the Bible rather than modern-day cultural fads for religious and moral guidance." KXAN News reports on the decision.