District Court Broadens Those Still Allowed Entry Under Trump's Travel Ban [UPDATED]

In State of Hawai'i v. Trump, (D HI, July 13, 2017), a Hawaii federal district court held that the government has too narrowly interpreted the U.S. Supreme Court's order that precludes enforcement of President Trump's second travel ban executive order against foreign nationals who have a bona fide relationship with a person or entity in the United States.  The district court held that qualifying close familial relationships include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.  It also held that a refugee seeking entry has a bona fide relationship with a U.S. entity when a resettlement agency has given the refugee assurance that it will provide, or arrange for, reception and placement services to that refugee.  A similar relationship exists for those in the Lautenberg Program for refugee admissions. New York Times reports on the decision.

UPDATE:  As reported by SCOTUSblog, on July 14, the Trump Administration asked the Supreme Court to clarify that the district court's decision is an incorrect interpretation of the Supreme Court's order.  The Supreme Court ordered plaintiffs in the case to file a response to the government's motion for clarification by noon on July 18.

Michigan Outlaws FGM In Package of Bills Signed By Governor

On July 11, Michigan Governor Rick Snyder signed a series of bills dealing with female genital mutilation. As summarized by the governor's press release:

The bill package amends various public acts to prohibit and prosecute those who perform female genital mutilation. Specifically, the bills prohibit performing genital mutilation, create criminal penalties for offenders, provide sanctions against healthcare licensees, require increased public education surrounding the topic and extend criminal and civil statutes of limitations.

One of the bills, HB 4636, outlaws FGM and provides:

It is not a defense to prosecution under this section that the person on whom the operation is performed, or any other person, believes that the operation is required as a matter of custom or ritual, or that the person on whom the operation is performed, or that person’s parent or guardian, consented to the operation.

HB 4642 requires the Department of Health and Human Services to:

Develop and administer an educational and outreach program that, at a minimum, informs the public, including members of new immigrant populations to this state that commonly practice female genital mutilation and health care providers, of the health risks and emotional trauma inflicted by the practice of female genital mutilation and the criminal penalties for female genital mutilation.

Vatican-Approved Article Criticizes Conservative Catholic Support of U.S. Evangelical Political Agenda

The Washington Post today reports that an article in the influential Jesuit magazine La Civilta Cattolica-- whose content is approved by the Vatican Secretariat of State-- is critical of conservative Catholic support for the evangelical political agenda in the United States. The article is authored by the journal's editor and by a Presbyterian pastor who edits of the Argentine edition of the Vatican newspaper, L’Osservatore Romano.  The article (full text in Italian) whose title translates to Evangelical Fundamentalism and Catholic Integralism: A Surprising Ecumenism, is summarize by the Post:

The Rev. Antonio Spadaro, editor of the influential Jesuit journal La Civilta Cattolica, said a shared desire for political influence between “evangelical fundamentalists” and some Catholics has inspired an “ecumenism of conflict” that demonizes opponents and promotes a “theocratic type of state.”

Spadaro also took aim at conservative religious support for President Donald Trump, accusing activists of promoting a “xenophobic and Islamophobic vision that wants walls and purifying deportations.”...

Spadaro specifically criticized the far-right Catholic American media organization ChurchMilitant.com. Spadaro said the media outlet framed the presidential election as a “spiritual war” and Trump’s ascent to the presidency as “a divine election.”

Spadaro’s critique also appears aimed in part at America’s Catholic bishops, who have fought for religious exemptions from gay marriage laws and other measures church leaders consider immoral, and have often characterized those with opposing views as wishing to persecute Christians.

AG Sessions Speaks To Conservative Christian Advocacy Group

On July 11, Attorney General Jeff Sessions spoke to a meeting sponsored by Alliance Defending Freedom, a conservative Christian advocacy organization.  The full text of his remarks, which focused on religious liberty, was published by The Federalist yesterday.  Here are some excerpts:

The challenges our nation faces today concerning our historic First Amendment right to the “free exercise” of our faith have become acute. I believe that this recent election was significantly impacted by this concern and that this motivated many voters. President Trump made a promise that was heard. In substance, he said he respected people of faith and he promised to protect them in the free exercise of their faith. This promise was well received.

.... America has never thought itself to be a theocracy. Our founders, at least the most articulate of them, believed our government existed as a protector of religious rights of Americans that were essential to being a created human being.

The government did not exist to promote religious doctrine nor to take sides in religious disputes.... The government’s role was to provide the great secular structure that would protect the rights of all citizens to fulfill their duty to relate to God as their conscience dictated and to guarantee the citizen’s right to exercise that faith.....

The president has ... directed me to issue guidance on how to apply federal religious liberty protections. The department is finalizing this guidance, and I will soon issue it.

The guidance will also help agencies follow the Religious Freedom Restoration Act. Congress enacted RFRA so that, if the federal government imposes a burden on somebody’s religious practice, it had better have a compelling reason....

Under this administration, religious Americans will be treated neither as an afterthought nor as a problem to be managed. The federal government will actively find ways to accommodate people of all faiths. The protections enshrined in the Constitution and our laws protect all Americans, including when we work together, speak in the public square, and when we interact with our government. We don’t waive our constitutional rights when we participate fully in public life and civic society.

This administration, and the upcoming guidance, will be animated by that same American view that has led us for 241 years: that every American has a right to believe, worship, and exercise their faith in the public square....

Novel Facts Do Not Assure Qualified Immunity In Prisoner Suit

In Parkell v. Senato, (3rd Cir.,  July 11, 2017), the U.S. 3rd Circuit court of Appeals vacated a Delaware federal district court's grant of qualified immunity to prison officials who refused an inmate's request for a kosher diet.  The court said in part:

We do not doubt that Parkell’s belief system—which he characterizes as “Jewish/Wicca”—is novel. But “officials can still be on notice that their conduct violates established law even in novel factual circumstances.”...

AP reports on the decision.

Priest's Defamation Suit Against Diocese Survives Ecclesiastical Abstention Claim

According to the Palm Beach Post, in a July 11 four-page opinion a Florida state trial court judge refused to dismiss a defamation suit brought by Catholic priest Rev. John Gallagher against his former diocese.  In response to Gallagher's claim that the diocese attempted to cover up sexual abuse by a visiting priest, the diocese posted responses on its website and in a letter read at all masses in the diocese.  The diocese (which contends that it reported the abuse to law enforcement authorities immediately) called Gallagher a liar who needed professional assistance.  The court held that the defamation claim "can be assessed using neutral principles of law and without resolving a church controversy."  It is expected that the diocese will appeal, arguing that the dispute involves church discipline and internal policies for handling complaints. (See prior related posting.)

Trump Meets With Supportive Evangelical Leaders

CNN reports that President Trump on Monday met in the Oval Office with a group of evangelical religious leaders.  These leaders comprise his Evangelical Advisory Board. Attendees included Johnnie Moore, a former senior vice president at Liberty University, Jack Graham, the pastor of the Prestonwood Baptist Church in Plano, Texas, and former Minnesota representative Michele Bachmann.  Vice President Pence also attended the meeting.  Photos posted by participants in the meeting show Trump with his head bowed in prayer surrounded by the religious leaders, some of whom have their hands on his shoulders.  Johnnie Moore told CNN:

We similarly prayed for President Obama but it's different with President Trump.  When we are praying for President Trump, we are praying within the context of a real relationship, of true friendship.

In yesterday's White House Press Briefing (full text) by Deputy Press Secretary Sarah Sanders, the following exchange about the President's meeting with faith leaders took place:

 Q    On the meeting with the Faith Advisory Board, someone tweeted out a picture of the meeting the other day, and there was a -- the picture showed people, faith leaders laying their hands on the President as they were praying.  And I think there was an inference or implication from that photo coverage that they were praying for him because of a political crisis.  Could you explain a little bit more about how the meeting came about and what it meant to the President to have them there?

MS. SANDERS:  The idea that somebody would only pray when they're in crisis I think makes you miss the entire point of what prayer is about.  You should do that every day, and that's -- I think you can do that in the best of times and the worst of times.  So I think it would be ridiculous to suggest the only time you might do that is in a time of crisis.

Q    How did the meeting come about?  And what did it mean to the President?

MS. SANDERS:  It’s his Faith Advisory Board, and they meet from time to time to speak about issues that are important to that community.

Court Bars Removal of Iraqi Christians and Shiites Until They Get Judicial Hearing

In Hamama v. Adducci, (ED MI, July 11, 2017), a Michigan federal district court issued an injunction barring the enforcement of removal orders against 1,444 Iraqis-- mostly Chaldean, but also other Christians and Shiite Muslims-- until they are given a judicial hearing on their claims that they are entitled to relief from removal because of their status as persecuted religious minorities in Iraq. The injunction extends a temporary suspension of their removal granted by the court last month. (See prior posting.)

While a federal statute-- 8 USC Sec. 1252(g)-- removes federal district court jurisdiction to hear any claim on behalf of an alien arising from action by the Attorney General to execute a removal order against the alien, the court held that enforcing that provision here would be an unconstitutional suspension of the right to habeas corpus. The court said in part:

The mechanism provided by the REAL ID Act for judicial review of removal orders — filing motions to reopen proceedings in immigration courts and subsequent review in the courts of appeals — does not take into account the compelling confluence of grave, real-world circumstances present in our case. This makes relegation to the immigration courts, without a stay from this court in place, an alternative that is neither adequate nor effective.

Without a stay in place, deportations will begin immediately, which may mean a death sentence for some deportees.... Beginning in August 2014, ISIS began carrying out large-scale killings.... Religious minorities were particularly vulnerable to these atrocities, with Christians being given the horrific choice to “pay a protection tax, convert to Islam, or be killed.”... 

While death is certainly the most egregious outcome deportees face, other persecution would also compromise their ability to pursue their removal challenges from foreign shores.... ISIS routinely commits arbitrary executions, torture, and sexual enslavement against religious minorities and those affiliated with the United States....

Detroit Free Press reports on the decision.

UAE Company Stops Payments, Saying Its Own Islamic Bonds Are No Longer Shariah-Compliant

According to a report yesterday in Bonds & Notes, an Abu Dhabi based company, Dana Gas, announced last month that it is ceasing payments on its 4-year sukuk that are to mature in October.  The company says it is taking this action because the bonds are no longer Shariah-compliant. Investors say that the payment stoppage on the $700 million (US) issue was really a way to avoid default, and they believe courts will not uphold the company's action.  Apparently there are no centralized Shariah boards to approve Islamic finance deal structures in Arab countries, leaving open the possibility of issuers making their own rulings as here.

Suit Seeking U.S. Edit of Qur'an Dismissed As Frivolous

In Levay v. United States, (ED MI, July 11, 2017), a Michigan federal district court, adopting a magistrate's recommendation (LEXIS link), dismissed as frivolous a suit by a Jewish plaintiff  seeking a formal declaration that "Koranic Sharia Law" is incompatible with U.S. constitutional law. The suit also asks for the court to direct Congress to outlaw certain passages from the Qur'an, to issues a federally approved and edited version of the Qur'an, to withdraw tax exempt status from mosques that do not adopt this new version, and to establish a National Islamic Registry Program. The court said in part:

Levay’s suit seeks relief for the threat of violence that Islamic extremism poses to him and his community. But he does not allege injury to him personally, or an imminent, particularized threat of future injury.... Even if Levay did allege an actionable injury, the Court does not have the authority to direct Congress to legislate on an issue, much less vanquish the specter of religiously-motivated violence.... And, more fundamentally, Levay’s requests for a state-issued Koran, a national registry of Muslims, and financial sanctions for rogue mosques offend basic constitutional principles..... Levay does not have standing to bring suit and requests remedies which violate the Constitution.

UPDATE: In Levay v. United States, 2017 U.S. Dist. LEXIS 130138 (ED MI, Aug. 16, 2017), the court denied a motion by the plaintiff to amend the judgment.

First Canadian Prosecution For Selling Mislabeled Kosher Food

The Canadian Food Inspection Agency last week announced that it has successfully prosecuted the first case brought before a provincial court involving misrepresentation of a kosher food product. Section B.01.049 of the Food and Drug Regulations prohibits selling food that does not meet the kashruth requirements applicable to it.  On June 22, Creation Foods Company plead guilty to two counts of violating the Food and Drugs Act, and was fined $25,000. Using a forged kosher certificate, the company sold cheese that did not meet requirements of kashrut to two Jewish summer overnight camps for young people.  The Forward has more details on the case.

Court Issues Detailed Instructions For Church Board Election

In Rock Church, Inc. v. Bristulf, (NY Cty. Sup. Ct., June 28, 2017), a New York trial court ordered a special meeting for an election of a church board of trustees, setting out detailed instructions for conducting the election.  The order came after three earlier court orders, each of which ordered a special meeting to elect a board, failed to result in a successful election. Part of the detailed instructions provided:

As the meeting is not the Annual Business Meeting, Section 5.7 of the By-laws (allowing all members the "right to express their opinion on any matter relating to the Church at the Annual Business Meeting") shall not apply. The only business to be conducted at the meeting shall be the voting to elect the Board of Trustees and such vote shall be conducted without prior discussion.

Recent Articles of Interest

From SSRN:

• Andrew Koppelman, How Could Religious Liberty Be a Human Right?, (Int. J. Const. Law, Forthcoming).
• Yitshak Cohen, Metahalakhic Principles in R. Meir Simcha Hacohen of Dvinsk's Oeuvre, (June 15, 2017).
• Perry Dane, Playacting: A D'Var Torah on Parshat Hukkat, (July 1, 2017).
• Michael Asimow, Jewish Lawyers on Television, (Journal of the Oxford Centre for Socio-Legal Studies, Iss. 2, p. 14, 2017).
• Dr. Sayeeda Anju, Informative Discussion on Women's Rights Ensured in CEDAW and Islamic Law, (June 30, 2017).

From SmartCILP:

Symposium: The Implications of Obergefell v. Hodges for Families, Faith and the Future. Articles by John Finnis, Lynn D. Wardle, Richard S. Myers, Charles J. Russo, Lynne Marie Kohm, Jason S. Carroll, Walter Schumm, J. David Bleich, William C. Duncan, student Sandra Alcaide. 14 Ave Maria Law Review 1-162 (2016).

Recent Prisoner Free Exercise Cases

In Simmons v. Atkins, 2017 U.S. Dist. LEXIS 103707 (ED CA, July 5, 2017), a California federal magistrate judge dismissed with leave to amend a complaint by a Native American inmate that he is denied weekly attendance at the sweat lodge, a properly trained medicine man or spiritual adviser, and material to make religious tools and artifacts.

In Saif'ullah v. Albritton, 2017 U.S. Dist. LEXIS 102438 (ND CA, June 30, 2017), a California federal court dismissed claims of ten of the 11 plaintiffs for failure to exhaust administrative remedies. The remaining plaintiff was permitted to move ahead on his complaint that Muslim inmates are only allowed to pray in groups of more than 5 in the open day room once per day, while similar restrictions are not applied to Christian and Jewish inmates.

In Monson v. Steward, 2017 U.S. Dist. LEXIS 104036 (D OR, July 6, 2017), an Oregon federal magistrate judge dismissed a suit by a Rastafarian inmate who complained that he was (until filing the lawsuit) denied a kosher diet.

In Hosannah v. Nassau County Criminal Supreme Court Sergeant Officer(s), 2017 U.S. Dist. LEXIS 104652 (ED NY, July 5, 2017), a New York federal magistrate judge recommended that an inmate be allowed to file an amended complaint against proper defendants asserting his claim that he is not allowed to attend Jewish religious services because of his escape risk status. UPDATE: The court adopted the magistrate's recommendations in Hosannah v. Sposato, 2017 U.S. Dist. LEXIS 117962 (ED NY, July 26, 2017).

4th Circuit: OK For College To Downgrade Applicant Whose Interview Discussion of Religion Was Inappropriate

In Buxton v. Kurtinitis, (4th Cir., July 7, 2017), the 4th Circuit rejected free speech and Establishment Clause challenges brought by a rejected applicant seeking admission to a Maryland community college radiation therapy program.  The applicant was graded down on his interview score because he brought up the subject of religion often during the interview.  The court concluded:

... the Free Speech Clause does not protect speech expressed in an admissions interview from admissions consequences in a competitive process. Although Buxton argues that this conclusion will open the door to a wide range of discrimination ..., this fear is misplaced. That the Free Speech Clause is not implicated in this narrow context does not open the door to a parade of discriminatory horribles. Several constitutional protections against discrimination remain in full force even in a competitive application and interview process; the Free Speech Clause is simply not one of them.

The court also rejected the applicant's claim that his rejection that was based in part on his discussion of religion violates the Establishment Clause, saying in part:

... it was not Buxton’s religious belief that caused his low interview score, but rather his choice of topic in the interview room that informed the committee’s determination that he lacked interpersonal skills. This determination was “driven in part by a secular purpose,” ... and thus satisfies the first prong of Lemon.

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.]

Cert. Petition Filed In Ten Commandments Case

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in City of Bloomfield v. Felix.  In the case, a 3-judge panel of the 10th Circuit found that a Ten Commandments monument on a city hall lawn violates the Establishment Clause. (See prior posting.) The full 10th Circuit, over the dissent of two judges, denied en banc review.  (See prior posting.)  ADF issued a press release announcing the petition seeking Supreme Court review.

Settlement Reached In Suit Over University Service Learning Credit For Religious Activity

A settlement has been reached in a lawsuit against the University of Wisconsin Eau Claire (see prior posting) over its refusal to count religious teaching to children as a permissible type of community service to satisfy university students' service learning requirement. Credit was give for various sorts of non-religious teaching.  Under the settlement agreement (full text) in Liebl v. Schmidt, the University agreed to remove language from its Service Learning Guidebook and from as University Senate motion that had disallowed credit for "time spent directly involved in promoting religious doctrine, proselytizing or worship." The University also agreed to pay plaintiffs' attorneys fees of $15,000.  Plaintiffs filed a Notice of Voluntary Dismissal with the Wisconsin federal district court on July 6.  ADF issued a press release announcing the settlement.

Tribes Sue to Stop End of Protection For Yellowstone Grizzly Bears

Last month 17 Native American tribes, clans and individuals filed suit challenging the U.S. Fish and Wildlife Service's decision to lift protections for grizzly bears in the Yellowstone National Park area.  According to AP:

The Native American plaintiffs argue that trophy hunting for grizzly bears goes against their religious and spiritual beliefs. The lawsuit filed June 30 asks a federal judge to rule that the U.S. Fish and Wildlife Service must consider the Native Americans' beliefs and consult adequately with them before removing grizzly protections that have been in place since 1975....

Basing a legal challenge of an Endangered Species Act decision on religious beliefs and inadequate tribal consultation has not been tried before, said the plaintiffs' attorney, Jeff Rasmussen.

In 9th Circuit Church Loses Suit Against Loud Music Festival

In Amistad Christiana Church v. Life Is Beautiful, LLC, (9th Cir., July 3, 2017), the U.S. 9th Circuit Court of Appeals rejected a claim by a Christian church that a music festival put on by Life is Beautiful, LLC with a permit from the City of Las Vegas was so intrusive that it violated their free exercise and free speech rights.  The court found no state action, concluding that Life is Beautiful is a private entity not acting under color of state law.  The city's special event permit regulated permissible sound levels for the festival.  And the city is immune from civil liability for suits based on the exercise of its discretionary functions.