Irish Voters Approve Elimination of Blasphemy As A Crime

In a referendum held last Friday, voters in Ireland approved removal from Sec. 40.6.1 of the Irish Constitution the language that makes blasphemy a crime.  As reported by BBC News, the vote was 64.85% voting in favor of decriminalizing blasphemy, and 35.15% against.  The removal of the language from the Constitution permits the Oireachtas to amend or repeal Sec. 36 of the Defamation Act of 2009 in order to eliminate blasphemy as a crime. (Background on referendum). See prior related posting.  [Thanks to Law & Religion UK for the lead.]

Recent Articles of Interest

From SSRN:

• Effie Fokas, The Legal Status of Religious Minorities: Exploring the Impact of the European Court of Human Rights, (Social Compass, 2017, 65(1), 25-42).
• Haniff Ahamat & Nasarudin Abdul Rahman, Halal Food, Market Access and Exception to WTO Law: New Aspects Learned from Indonesia — Chicken Products, (Asian Journal of WTO & International Health Law and Policy, Vol. 13, No. 2, pp. 355-373, September 2018).
• Wayne Barnes, The Paradox of Christian-Based Political Advocacy: A Reply to Professor Calhoun, (74 Wash. & Lee L. Rev. Online 489 (2018)).
• Helen M. Alvare, Is This Any Way to Make Civil Rights Law? Judicial Extension of 'Marital Status' Nondiscrimination to Protect Cohabitants, (Georgetown Journal of Law & Public Policy, Forthcoming).
• Paulo Pinto de Albuquerque & Andrea Scoseria Katz, Is Religion a Threat to Human Rights? Or is It the Other Way Around? Defending Individual Autonomy in the ECtHR's Jurisprudence on Freedom of Religion, (Religion and International Law: Living Together 277-293 (Robert Uerpmann-Wittzack, Evelyne La-grange, and Stefan Oeter eds. 2018)).
• Effie Fokas, The Secular Court?, (November 1, 2016).
• ZW Taylor, Sources of Free Speech in U.S. Higher Education: What the Law Tells Us, (September 27, 2018).
• Thomas Colby, The Other Half Of The Abortion Right, (20 University of Pennsylvania Journal of Constitutional Law 1043 (2018)).
• Pooja Dadhania, Deporting Undesirable Women, (9 UC Irvine L. Rev. 53 (2018)).

11th Amendment Dismissal Avoids Ruling On Free Exercise Challenge To Medicaid Rule

In Scott v. Virginia Department of Medical Assistance Services, (WD VA, Oct. 19, 2018), a Virginia federal district court dismissed on 11th Amendment grounds a suit challenging a state Medicaid rule that deny payment for in-home care services rendered by the parent of a minor child. Here the state refused to grant an exception to allow a child's stepfather to be paid as an attendant caregiver.  The child's mother had argued that her religious beliefs require that only a male relative can help bathe her son, that parents be the primary caretakers of their children, and that no male other than her husband, father, or brother be in the house alone with her. Avoiding a ruling on the merits, the court held:

Scott brought her suit against DMAS itself, rather than the appropriate state official charged with the specific duty of enforcing the contested DMAS policy. Thus, the Ex Parte Young exception does not apply, and her suit is barred regardless of the relief sought.

Prison Cannot Limit Participation In Native American Religious Ceremonies To Ethnic Native Americans

In Guardado v. Nevada, 2018 U.S. Dist. LEXIS 177365 (D NV, Oct. 16, 2018), a Nevada federal district court held that a Mexican-American inmate's free exercise rights protected by RLUIPA were violated when the Nevada prison system implemented a requirement of the Nevada Indian Commission that participation in Native American religious ceremonies in prison be limited to those of Native American heritage. Plaintiff had argued that no other religion requires inmates to show proof of their ethnicity to practice their beliefs. The court, concluding that it need not reach plaintiff's equal protection arguments since the practice violates RLUIPA, held:

Here, the Court is satisfied that Plaintiff's Native American religious beliefs are sincerely held. Further, AR 810 is a substantial burden on Plaintiff's free exercise as he is Mexican-American and cannot show that he is Native American or provide documentation that he is registered or affiliated with any recognized tribe.... Defendants have not shown that any safety or security issues are likely to arise from Plaintiff's participation in Native American religious ceremonies.

The court issued a preliminary injunction requiring  that defendants permit Ernest Guardado "to participate in Native American religious ceremonies with the Native American practitioners including sweat lodge, prayer circle, drum circle, smudging, sacred pipe, and access to the Native Indian grounds."

Charges Filed Against Accused Pittsburgh Synagogue Shooter

The U.S. Attorney's Office for the Western District of Pennsylvania announced tonight the charges that are being filed against the Pittsburgh, Pennsylvania synagogue shooter:

On Saturday, October 27, 2018, at 8:05 p.m., U.S. Magistrate Judge Robert C. Mitchell signed a criminal complaint charging Robert Bowers of Baldwin, Pa., with 29 counts setting forth federal crimes of violence and firearms offenses. The crimes of violence are based upon the federal civil rights laws prohibiting hate crimes. The FBI in Pittsburgh is leading the investigation."

The federal complaint alleges that Bowers committed the following crimes on or about October 27, 2018, in the Western District of Pennsylvania:

• Eleven counts of Obstruction of Exercise of Religious Beliefs Resulting in Death (18 U.S.C. §§ 247(a)(2) and 247(d)(1))

• Eleven counts of Use of a Firearm to Commit Murder During and in Relation to a Crime of Violence (18 U.S.C. §§ 924(c)(1)(A) and 924(j)(1)

• Four counts of Obstruction of Exercise of Religious Beliefs Resulting in Bodily Injury to a Public Safety Officer 18 U.S.C. §§ 247(a)(2) and 247(d)(3))

• Three counts of Use and Discharge of a Firearm During and in Relation to a Crime of Violence (18 U.S.C. §§ 924(c)(1)(A) and 924(iii))

UPDATE: The Pittsburgh Post-Gazette reports on state charges that have also been filed against Bowers:

Later Saturday, Pittsburgh police filed 11 counts of criminal homicide against Mr. Bowers, along with six counts of attempted homicide; six counts of aggravated assault and 13 counts of ethnic intimidation.

Government Brief To SCOTUS Says Title VII Does Not Ban Transgender Discrimination

On Wednesday, the Justice Department filed a brief (full text) with the U.S. Supreme Court arguing that Title VII of the 1964 Civil Rights Act does not cover discrimination against an individual based on gender identity. The brief follows the position taken by the Trump Administration in an Oct. 2017 Justice Department Memo.  The brief was filed in response to the petition for certiorari in R.G. and G.R. Harris Funeral Homes, Inc. v. EEOC, in which the U.S. 6th Circuit Court of Appeals held that a Michigan funeral home violated Title VII when it fired a transgender employee who was in the process of transitioning from male to female. (See prior posting.) The government's brief ultimately urges the court to hold the petition in this case pending its decision on whether to grant review in two other cases raising similar issues. NBC News reports on the DOJ brief. SCOTUS blog has links to all the briefs filed with the Supreme Court in the case.

Japanese Court Rejects Challenge To Prime Minister's Visit To Yasukuni Shrine

Kyodo News reports on a decision by a Japanese appellate court yesterday holding that a 2013 visit by Prime Minister Shinzo Abe to the Yasukuni Shrine did not violate the religious freedom of the 450 citizens who brought the lawsuit. The shrine honors millions of war dead, but also convicted war criminals, and the Prime Minister's visit, according to the plaintiffs heightened international tensions.  The court held that the visit did not interfere with plaintiffs' faith.

European Court Upholds Conviction For Calling Muhammad A Pedophile

As reported by the Daily Mail, in E.S. v. Austria, (ECHR, Oct. 25, 2018) the European Court of Human Rights ruled unanimously in a Chamber Judgment that Austria did not violate free speech protections of the European Convention on Human Rights, Sec. 10, when it convicted a speaker of disparaging religious precepts.  The speaker, a woman identified as E.S., made a statement disparaging Muhammad at a seminar titled “Basic information on Islam” presented at the right-wing Freedom Party Education Institute. Her presentation labelled Muhammad's marriage to Aisha as pedophilia  As summarized by the Court's Information Note on the decision, the Court held:

The applicant’s statements had been capable of arousing justified indignation given that they had not been made in an objective manner aimed at contributing to a debate of public interest, but could only have been understood as aimed at demonstrating that Muhammad was not a worthy subject of worship.... Presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society....

The applicant had subjectively labelled Muhammad with paedophilia as his general sexual preference, while failing to neutrally inform her audience of the historical background, which consequently did not allow for a serious debate on that issue, and had thus made a value judgement without sufficient factual basis.... As to the applicant’s argument that a few individual statements had to be tolerated during a lively discussion, it was not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and deduce that this would render the statements, exceeding the permissible limits of freedom of expression, passable. Moreover, the applicant had been wrong to assume that improper attacks on religious groups had to be tolerated even if they were based on untrue facts.

Chamber judgments may be appealed to the Grand Chamber. [Updated to provide link to full text of decision. Thanks to Seth Tillman for the link.]

Suit Against Drag Queen Story Hour Dismissed

Last Friday a suit was filed in federal district court in Houston, Texas seeking to stop a city sponsored drag queen story hour that is scheduled for the Houston Public Library. Plaintiffs argued that the story hour violates their religious free exercise. (Houston Chronicle). Yesterday the court dismissed the suit in a four-sentence order, concluding that there is no basis for the requested relief. (Houston Chronicle).

Oral Arguments In 7th Circuit Challenge To Parsonage Allowance

Yesterday the U.S. 7th Circuit Court of Appeals heard oral arguments in Gaylor v. Peecher. (Audio recording of full oral arguments.) In the case, a Wisconsin federal district court held that the parsonage allowance provision in Sec. 107(2) of the Internal Revenue Code violates the Establishment Clause. (See prior posting.)  Courthouse News Service reports on the oral arguments.

D.C. Opens Investigation of Local Clergy Sexual Abuse Charges

The Washington Post reported yesterday that the office of the District of Columbia Attorney General has opened a civil investigation into charges of sexual abuse by Catholic clergy in the Diocese of Washington. Earlier this month, Pope Francis accepted the resignation of the Diocese's Archbishop Cardinal Donald Wuerl after controversy over his handling of abuse claims as head of the Pittsburgh (PA) Diocese. (See prior posting.) According to yesterday's Post report:

D.C. statutes allow the attorney general to subpoena documents and seek penalties against a nonprofit — up to and including dissolving it — if it “has exceeded or abused and is continuing to exceed or abuse the authority conferred upon it by law” or if it “has continued to act contrary to its nonprofit purposes.”

[Attorney General Karl] Racine said that any felony crimes his office discovers in the course of its probe would be forwarded to the U.S. attorney. Racine’s staff could also prosecute any violations of the District’s mandated reporting requirements — which would be misdemeanors — separately from the civil investigation.

9th Circuit Hears Oral Arguments In Challenge To Expanded Contraceptive Coverage Exemptions

Last week, the U.S. 9th Circuit Court of Appeals heard oral arguments in State of California v. Little Sisters of the Poor. (Video of full oral arguments). The case involves the appeal by a religious order (as an intervenor) of a nationwide preliminary injunction that a California federal district court issued blocking the Trump administration's Interim Final Rules expanding religious and moral exemptions from the Affordable Care Act's contraceptive coverage mandate. (See prior posting.) According to Courthouse News Service,  two of the three judges on the panel indicated during oral argument that they were inclined to lift the injunction. [Thanks to Blog from the Capital for the lead.]

UN Committee Says France's Anti-Niqab Law Violates Free Exercise Rights

The United Nations Human Rights Committee yesterday issued a press release on two decisions issued Oct. 22:

In two landmark decisions, the United Nations Human Rights Committee found that France violated the human rights of two women by fining them for wearing the niqab, a full-body Islamic veil....

The Committee found that the general criminal ban on the wearing of the niqab in public introduced by the French law disproportionately harmed the petitioners’ right to manifest their religious beliefs, and that France had not adequately explained why it was necessary to prohibit this clothing. In particular, the Committee was not persuaded by France’s claim that a ban on face covering was necessary and proportionate from a security standpoint or for attaining the goal of “living together” in society. 

The decisions (available only in French) are Hebbadj v. France and Yaker v. France.

Indian Supreme Court's Ruling On Temple Access By Women Meets Resistance

As previously reported, last month India's Supreme Court struck down a ban on women between the age of 10 and 50 years from entering the Sabarimala Temple.  However, yesterday's New York Times reports that implementing the Court's ruling has been difficult:

When the temple reopened for six days on Wednesday, for the first time since the court’s decision, the pilgrimage path became a kind of conflict zone, pitting traditionalists against police officers who vowed to enforce the law and protect any woman who wished to visit.

At least 12 women attempted the journey. Each was met with a mob that variously shouted in her face, pummeled the police, set vehicles on fire, hurled rocks and blocked the steep, three-mile trail leading to the temple by lying on its slippery stones. All of the women were forced to turn back. One was so overwhelmed that she fainted.

Law Firm Releases Report On Abusive Priests In California

A law firm that is suing to obtain release by three Catholic dioceses in the San Francisco Bay area of the names of all clergy accused of sexual misconduct yesterday released its own report. The 66-page report lists the names and provides background information on 212 accused priests. (Full text of report.)  The report was compiled from various public sources of information. Fox 2 News has reactions to the report.

Families of WW II Vets May Move Ahead With Suit To Recover Remains

In Patterson v. Defense POW/ MIA Accounting Agency, (WD TX, Oct. 23, 2018), a Texas federal district court refused to dismiss substantive and procedural due process, and free exercise and RFRA claims by the families of seven American Army service members who died in the Philippines in World War II. The families sought recovery of the remains of their veterans so they can be properly buried.  The remains are interred as "Unknowns" in the Manila American Cemetery, but the families believe that they can now identify in which of the Unknowns' graves the seven service members are buried. The court said in part:

Plaintiffs allege that the government’s refusal to return allegedly identified remains to the appropriate families for burial “shocks the conscience.” ... Plaintiffs argue that their allegations that the remains are in fact identified, taken as true, render Defendants’ withholding of the remains a substantive due process violation.... At this stage, the Court finds that Plaintiffs sufficiently allege a substantive due process violation....

[G]iven Plaintiffs’ private interests regarding their family members’ remains and the alleged erroneous deprivation of an opportunity to be heard, the Court finds that, at this stage, Plaintiffs sufficiently allege a procedural due process violation that will benefit from further fact development.....

Plaintiffs allege that their free exercise of their sincerely held religious tradition of burial has been burdened because the government refuses to return the remains of their relatives.... These allegations are plausible on their face and meet the pleading requirements at this stage of litigation for both a Free Exercise claim and a RFRA claim

Supreme Court Review Sought In Indiana Abortion Restrictions Case

On Oct. 12, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Commissioner of the Indiana State Department of Health v. Planned Parenthood of Indiana and Kentucky, Inc., (cert. filed, Oct. 12, 2018).  The petition presents two questions for the Court's review:

1. Whether a State may require health care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation.

2. Whether a State may prohibit abortions motivated solely by the race, sex, or disability of the fetus and require abortion doctors to inform patients of the prohibition.

The 7th Circuit in an opinion (full text) in April held the provisions of Indiana's abortion laws unconstitutional. Rewire News reports on the petition for review.

Cert. Filed By Catholic Order Objecting To Pipeline Approval

Last Friday, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, (cert. filed 10.19/2018).  In the case, the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of a challenge under the Religious Freedom Restoration Act to FERC's approval of a pipeline project. The natural gas pipeline runs through land owned by an order of Catholic nuns whose religious beliefs require them to preserve the earth. Developers were authorized to acquire land for the pipeline by eminent domain. Adorers of the Blood of Christ issued a press release announcing the filing of the petition for review.

Cert. Filed In Oregon Wedding Cake Case

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Klein v. Oregon Bureau of Labor and Industries, (cert. filed 10/22/2018). In the case, the Oregon Court of Appeals agreed with the state Bureau of Labor and Industries that Sweetcakes bakery violated the state's public accommodation law when it refused to design and create a wedding cake for a same-sex wedding. First Liberty issued a press release announcing the filing of the petition for review.

In Chile, Court Awards Damages In Priest Sexual Abuse Case As Investigations Continue

In Chile, the Ninth Chamber Court of Appeals in Santiago has awarded the equivalent of $670,000(US) to three victims of sex abuse by former Catholic priest  Fernando Karadima who was removed from the priesthood by Pope Francis a few weeks ago.  According to  yesterday's Santiago Times, the award against the Archdiocese of Santiago comes in a suit in which Cardinals Francisco Javier Errázuriz and Ricardo Ezzati are accused of covering up Karadima's abuses. The Santiago Times adds:

According to a cadastre published by the Chilean National Prosecutor’s Office at the end of August, there are currently 119 investigations in progress against 167 persons related to the Church and 178 victims quantified, 79 of whom were minors when the events occurred.

Meanwhile, Pope Francis has accepted the resignation of five Chilean bishops, after last May the 34 bishops of the country presented their resignation en bloc to the pontiff in the Vatican after acknowledging that they had committed “serious errors and omissions”.