Advocacy Organization Releases "Religious Freedom Index" Survey

Becket yesterday released its first Religious Freedom Index which it describes in part as follows:

The Religious Freedom Index is designed to give a 30,000-foot view of changes in American attitudes on religious liberty by surveying a nationally representative sample of 1,000 American adults. Rather than focus on the most hot-button issues dominating the news-cycle, questions asked in the Index cover a wide spectrum of religious liberty protections under the First Amendment. The responses to these questions statistically group into six dimensions: 1) Religious Pluralism, 2) Religion and Policy, 3) Religious Sharing, 4) Religion in Society, 5) Church and State, and 6) Religion in Action. The composite Index score is the average score of these dimensions.

A Key Finding was:

In 2019, the majority of Americans accept and support religious freedom as a fundamental right as indicated by the Index score of 67. Although that fact may not come as a surprise, the Index clearly shows that Americans support a much broader array of religious freedom principles than current news cycles might suggest.

USCIRF Criticizes Action In India That Targets Bengali Muslims

Yesterday the U.S. Commission on International Religious Freedom issued a report titled The Religious Freedom Implications of the National Register of Citizens in India. The report says in part:

On August 31, 2019, the government of the northeastern Indian state of Assam released an updated National Register of Citizens (NRC), originally introduced in 1951 as part of India’s first census. The purpose of updating this list was to verify the citizenship of Assam residents and aid the government in identifying so-called “infiltrators” or “illegal immigrants.” India’s Union government supported this effort, and both national and state leaders from the ruling Bharatiya Janata Party (BJP) have pushed for the implementation of an NRC in other states..... Union Home Minister Amit Shah has expressed his desire to implement a nationwide NRC.

The final NRC list excluded 1.9 million Assam residents. Moreover, a number of domestic and international organizations have expressed concern that the NRC is a targeted mechanism to disenfranchise Assam’s Bengali Muslim community, implicitly establishing a religious requirement for citizenship and potentially rendering large numbers of Muslims stateless.

Hearing Officer Recommends License For Orthodox Jewish Women's Ambulance Service

A hearing officer's Nov. 11 report (full text) to New York City's Regional Emergency Medical Services Council recommends that an Orthodox Jewish women's organization known as Ezras Nashim be granted a certificate of need so it can operate an ambulance service directed to Orthodox Jewish women.  The Forward sets out some background:

Ezras Nashim, the female team which serves as emergency medical technicians in Boro Park, Brooklyn, was founded because Orthodox women in that community are often uncomfortable with male medics, even in emergencies. Their religious value of modesty prohibits men and women to touch unless they are husband and wife or close relatives.

Founded with little money and in the face of much community opposition in 2014, Ezras Nashim has operated by driving around in its members’ own cars. Now they’re trying to grow.... But the Orthodox-run male EMT service, Hatzolah, that opposed their founding is trying to block the ambulance application. The fight over the ambulance reflects a much broader communal debate about female modesty, and who gets to define it — men or women?

The Hearing Officer said in part:

A conservative approach would deny the request for an ambulance certificate on the strength of faster response times by all-male Hatzolah, or slower non-culturally aware FDNY and other responders. But that approach ignores the clear need that exists among the Orthodox Jewish women.

The application filed by Ezras Nashim, as well as video and transcripts of the public hearing on the application are available from REMSCO's website.

Suit Challenges New York's Ban On Reproductive Health Care Employment Discrimination

A lawsuit was filed last week in a New York federal district court by a pro-life pregnancy care center, a religious pro-life pregnancy care center membership organization and a Baptist church challenging the constitutionality of  New York's SB 660 which was signed into law earlier this month. the new law prohibits employers from taking action against an employee because of reproductive health care decisions by the employee or their dependents.  It bars employers from accessing information about employees' reproductive health decision making or requiring waivers by employees of their right to make such decisions. The complaint (full text) in CompassCare v. Cuomo, ND NY, filed 11/14/2019), alleges in part:

SB 660 is a transparent attempt to meddle in the affairs of religious and pro-life organizations—including but not limited to pregnancy care centers, churches, and schools—by forcing them to employ and associate with those persons who do not share or live by the organizations’ beliefs regarding abortion, contraception, and the impropriety of sexual relations outside the context of a marriage between a man and a woman.....

Taken together, these requirements compromise the very reason for being of these organizations, which is to promote life, oppose abortion, and teach and live a sexual ethic consistent with biblical principles.

The suit claims that the law violates their free speech and free exercise rights. CNA reports on the lawsuit.

Lawsuit Opposes Religious Activities In Tennessee School

Two families who are atheists have filed suit against a Tennessee school board challenging religious practices at a Smith County middle school and high school.  The complaint (full text) in Butler v. Smith County Board of Education, (MD TN, filed 11/18/2019), alleges in part:

For years, [school officials] have routinely promoted and inculcated Christian religious beliefs by sponsoring religious activities and conveying religious messages to students at these two schools. School-sponsored prayer is common at athletic and other school events; religious iconography and messages adorn the walls of the schools; and teachers proselytize their Christian faith.

ACLU of Tennessee issued a press release with more background on the case. KRTV News reports on the lawsuit.

In Canada, Parent's Suit Challenges Classroom Demonstration of Smudging Ceremony

CTV News and Nanaimo News reported yesterday on the opening of a trial in Nanaimo, British Columbia in a suit against a school district because of a classroom demonstration of a Nuu-chah-nulth smudging ceremony. Plaintiff, the mother of a child in the elementary school classroom where the demonstration was carried out in 2015, says that the exercise violated her daughter's rights.  The daughter asked to leave the room, but her teacher told her that this would be rude and that she must stay in class and participate.  The lawyer filing the case said: "We believe that the government cannot compel citizens to participate in supernatural or religious ceremonies."

Suit Filed Against Quebec's Ban On Public Employees Wearing Religious Symbols

AP reported yesterday that in the Canadian province of Quebec, another lawsuit has been filed challenging Bill 21. The law, passed earlier this year, prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. A grandfather clause exempts most current officials and employees. (See prior posting.) This suit was brought by Fédération Autonome de l'Enseignement, a union representing 45,000 teachers.  Challengers claim the law not only violates freedom of religion, but also equality rights because its main impact is on teachers, 75% of whom are women.

Satanic Temple Can Proceed In Its Attempt To Offer City Council Invocation

In The Satanic Temple, Inc. v. City of Scottsdale, (D AZ, Nov. 18, 2019), an Arizona federal district court refused to dismiss a suit by The Satanic Temple (TST). Scottsdale City Council refused to allow the head of TST to deliver an invocation at a City Council meeting. The court, in finding that plaintiffs had standing to bring the lawsuit reasoned in part:

The injury alleged is discrimination – that Plaintiffs have been denied the opportunity to give an invocation when other religious groups have been allowed that privilege....

Although Establishment Clause violations can be asserted by the irreligious as well as the religious, such as a non-believing school student who is compelled to recite a prayer, Plaintiffs’ religious-discrimination claim necessarily requires that they be a religion....

In arguing that Plaintiffs are not religious, Defendant does not rely on any specific judicial definition. Defendant instead asserts that courts have distinguished between religious and secular prayers in legislative prayer cases....

The evidence discussed above suggests that Plaintiffs view their beliefs as religious and sincerely held. Whether Plaintiffs are religious for purposes of the merits of this case – for purposes of showing that the City’s action in the sphere of legislative prayer amounted to religious discrimination – is an issue for trial.

Recent Articles of Interest

From SSRN:

• Nathan S. Chapman, The Practice of Law As Christian Discipleship, (Forthcoming, Pepperdine Law Review (solicited paper for a Festschrift for Robert Cochran)).
• James M. Donovan & Alyssa Oakley Milby, Too Much, Too Soon? 'Obergefell' as Applied Equality Practice, (Mississippi Law Journal, Vol. 88, Forthcoming).
• Kathy L. Cerminara, Today's Crusades: A Therapeutic Jurisprudential Critique of Faith-Based Civil Rights in Health Care, (October 1, 2019).
• Cecilia M. Bailliet, Protection of Refugees, Returnees, Migrants, and Internally Displaced Persons Against Racism, Xenophobia, and Discriminatory Practices,(July 5, 2018).
• Gail L. Heriot, Dissenting Statement of Commissioner Gail Heriot in In the Name of Hate: Examining the Federal Government's Role in Responding to Hate Crimes, a Report of the U.S. Commission on Civil Rights, San Diego Legal Studies Paper No. 19-422 (2019).
• Rosa Celorio, Discrimination and the Regional Human Rights Protection Systems: The Enigma of Effectiveness, (University of Pennsylvania Journal of International Law, Vol. 40, No. 781, 2019).
• Gail L. Heriot, Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal … It Gives the Federal Bureaucracy Extraordinary Discretionary Power. But What Does It Do to the Rule of Law? And Who Benefits?, (San Diego Legal Studies Paper No. 19-421 (2019).
• Albert Feuer, How Savings and Retirement Benefit Distributions May Prudently Be Used to Make Charitable Gifts, (53 No. 1 NYSBA TR. & EST. L. SEC. J. 7 (Spring/Summer 2019)).

From SSRN: (Non-U.S. Law):

• Muhammad Wajid Munir, The Politics of Islamic Law: Local Elites, Colonial Authority, and the Making of the Muslim State: A Book Review, (LUMS Law Journal, Forthcoming).
• Fahad Siddiqi, Law of Appointment of Guardian Under the Guardian & Wards Act 1890 (2017).
• Barbara Havelkova & Mathias Möschel, Introduction: Anti-Discrimination Law's Fit into Civil Law Jurisdictions and the Factors Influencing It, (Havelková B and Möschel M (eds), Anti-Discrimination Law in Civil Law Jurisdictions (Oxford University Press, Expected 2019))

New Report:

• Elizabeth Reiner Platt, Katherine Franke, Kira Shepherd, Lilia Hadjiivanova, Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right, (Columbia Univ. Law School, 2019).

House Holds Hearings On Human Rights Issues In India's Jammu and Kashmir

Last Thursday, the House of Representatives Tom Lantos Human Rights Commission held hearings on Jammu and Kashmir in Context. The Committee sets out the context:

The Indian government’s decision to change the legal status of the Muslim-majority state of Jammu and Kashmir, announced in August and effective as of October 31, 2019, has attracted intense attention due to persistent reports of human rights violations, including a crackdown on freedom of expression; the arbitrary “preventive” detention of hundreds of politicians, lawyers, journalists, and other civil society figures and related fears of enforced disappearance; and the use of excessive force against protesters. The increased militarization of the security presence in the region and the economic and social consequences of the central government’s actions, including continuing restrictions on internet and phones, have also provoked widespread concern. In addition, militants have targeted migrant workers from outsider Kashmir, and have threatened businesses to maintain a protest shutdown.

A video of the two and one-half hour hearing along with transcripts of witness' prepared statements and material submitted for the record are all available at the Commission's website. These include testimony from the U.S. Commission on International Religious Freedom focusing on religious freedom for minorities in India.

Planned Parenthood Wins Suit Against Activists Who Released Secret Manipulated Videos

Newsweek reports that a federal district court jury in San Francisco has awarded nearly $2 million in punitive and compensatory damages to Planned Parenthood:

Planned Parenthood won a lawsuit worth $2 million Friday, after a jury found that an anti-abortion group had broken multiple laws by secretly recording and releasing manipulatively edited video footage of doctors and staff.

The Center for Medical Progress and its founder David Daleiden were found guilty of fraud, trespassing and illegal secret recording.... Planned Parenthood says that clandestinely recorded video footage was manipulated and edited to make it appear as though they were attempting to profit off of fetal tissue donations, something they deny has ever taken place.

The videos were taken between 2013 and 2015, and apparently feature Daleiden and co-defendant Sandra Merritt pretending to be representatives of a fake company called "BioMax."

International Criminal Court Authorizes Investigation Into Persecution of Rohingya By Myanmar

Yesterday, in a 58-page decision (full text), a 3-judge Pre-Trial Chamber of the International Criminal Court sitting at The Hague authorized an investigation into alleged crimes against humanity committed against the Rohingya Muslims by Myanmar. The Court's press release summarizes the decision:

The Chamber concluded that the Court may exercise jurisdiction over crimes when part of the criminal conduct takes place on the territory of a State Party. While Myanmar is not a State Party, Bangladesh ratified the ICC Rome statute in 2010. Upon review of the available information, the Chamber accepted that there exists a reasonable basis to believe widespread and/or systematic acts of violence may have been committed that could qualify as the crimes against humanity of deportation across the Myanmar-Bangladesh border and persecution on grounds of ethnicity and/or religion against the Rohingya population..... 

Noting the scale of the alleged crimes and the number of victims allegedly involved, the Chamber considered that the situation clearly reaches the gravity threshold. According to the supporting material, an estimated 600,000 to one million Rohingya were forcibly displaced from Myanmar to neighbouring Bangladesh as a result of the alleged coercive acts. Noting the victims' views, the Chamber agreed with the Prosecutor that there are no substantial reasons to believe that an investigation into the situation would not be in the interests of justice.

Priest and His Church Sued Over Insensitive Funeral Homily

Detroit News reports on a lawsuit filed on Wednesday in a Michigan state trial court seeking damages from priest  Rev. Don LaCuesta and Our Lady of Mount Carmel Catholic Church in Temperance, Michigan for a homily which La Cuesta delivered at the funeral of plaintiff's son last December.  At the funeral of the son, who had committed suicide, LaCuesta delivered this homily which condemned suicide, but added that God can forgive it.  The priest ignored a plea by the deceased's father during the funeral to stop.  After the funeral, the Archdiocese and the priest both issued apologies. The lawsuit alleges that plaintiff, mother of the deceased, "continues to suffer great pain of mind and body, shock, severe and permanent emotional distress … and difficulty in practicing religion through the church."

School's Challenge To Disqualification From Voucher Program Moves Ahead

In Bethel Ministries, Inc. v. Salmon, (D MD, Nov. 14, 2019), a Maryland federal district court refused to dismiss a suit brought by a Christian school against state authorities claiming that the school was discriminated against on religious grounds when its eligibility to participate in the state's school voucher program (known as "BOOST") was removed. In order to participate, a school has to have a non-discrimination policy that include bans on discrimination on the basis of sexual orientation.  As explained by the court:

Bethel does not include sexual orientation or gender identity in its statement of nondiscrimination.... In the next paragraph, the handbook says, It should be noted, however, that Bethel Christian Academy supports the biblical view of marriage defined as a covenant between one man and one woman, and that God immutably bestows gender upon each person at birth as male or female to reflect his image … faculty, staff, and student conduct is expected to align with this view....

Irrespective of any language in the handbook, however, Bethel does not consider sexual orientation in the admissions process. The court reasoned:

If, as it alleges, Bethel has not discriminated on the basis of sexual orientation in admissions, then it has plausibly alleged that Defendants infringed upon several of its constitutional rights. Namely, Bethel has presented a plausible case that the Advisory Board’s determination of ineligibility was motivated by the school’s religious affiliation.

Challenge To Religious Anti-Discrimination Waiver Dismissed For Lack of Standing

In Maddonna v. U.S. Department of Health and Human Services, (D SC, Nov. 13, 2019), a South Carolina federal district court dismissed for lack of standing a challenge to action by the federal government and the state that, through a waiver of anti-discrimination requirements, allowed a religiously affiliated foster care agency to place children only with evangelical Christians. The court said in part:

Plaintiff could only conceivably attempt to assert taxpayer standing as to her claims regarding the Establishment Clause. Even then, Plaintiff has not set forth any challenge to any legislative action, but has, rather, challenged discretionary executive actions and appropriations....

 Assuming without deciding that Plaintiff’s other alleged injuries - i.e. that she was denied the opportunity to volunteer and/or become a foster parent through Miracle Hill and was discriminated against in the process - has been sufficiently alleged ..., the court finds that Plaintiff has failed to establish that such injury was fairly traceable to any Defendant....  [A]t the time Plaintiff was denied the ability to volunteer with or foster through Miracle Hill in 2014, the actions of which she complains had not taken place, and, therefore, cannot conceivably have caused or even contributed to Plaintiff’s alleged harm.

The State reports on the decision.

Gambia Sues Myanmar In International Court of Justice Over Rohingya Genocide

The International Court of Justice announced this week that the Republic of Gambia has instituted proceedings against Myanmar alleging actions taken and condoned against Rohingya Muslims violated the Genocide Convention. The full text of Gambia's Nov. 11 Application Instituting Proceedings is available from the ICJ's website. Myanmar Times reports on the filing of the case.

State Must Issue "IM GOD" Vanity License Plate

In Hart v. Thomas, (ED KY, Nov. 13, 2019), a Kentucky federal district court held that a car owner's First Amendment rights were infringed when the state refused to issue him a vanity licence plate reading "IM GOD".  The court said in part:

...[A]voidance of controversy is a valid ground for restricting speech in a nonpublic forum.... However, the Transportation Cabinet has been so inconsistent in its application of § 186.174 that it has ceased to be “consistent with [Kentucky’s] legitimate government interest” in any way. If the Transportation Cabinet genuinely wants to avoid controversy on Kentucky’s highways by preventing “promotion of any specific faith, religion, or anti-religion” from appearing on vanity plates, then it should have denied “IM4GOD”, “ASKGOD”, GR8GOD”, “LUVGOD”. But it did not.... Instead, the Transportation Cabinet has approved multiple vanity plates featuring the word “god”.... This suggests that the law as applied to Mr. Hart is neither reasonable nor viewpoint neutral. To allow such plates as “IM4GOD” and “LUVGOD” but reject “IM GOD” belies viewpoint neutrality.

FFRF issued a press release announcing the decision.

11th Circuit: Christian School Can Proceed In Challenge To Pre-Game Loudspeaker Prayer Ban

In Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc., (11th Cir., Nov. 13, 2019), the U.S. 11th Circuit Court of Appeals held that a Christian school could move ahead with its complaint that its free speech and free exercise rights were infringed when it was denied permission to broadcast a joint prayer over the loudspeaker at the state championship high school football game. Both schools in the playoff were Christian schools. In its 70-page opinion, the court said in part:

As we see it, the district court was too quick to dismiss all of Cambridge Christian’s claims out of hand. Taking the complaint in a light most favorable to the plaintiff, as we must at this stage in the proceedings, the schools’ claims for relief under the Free Speech and Free Exercise Clauses have been adequately and plausibly pled. There are too many open factual questions for us to say with confidence that the allegations cannot be proven as a matter of law. The question of whether all speech over the microphone was government speech is a heavily fact-intensive one that looks at the history of the government’s use of the medium for communicative purposes, the implication of government endorsement of messages carried over that medium, and the degree of government control over those messages.... [B]ased on this limited record, we find it plausible that the multitude of messages delivered over the loudspeaker should be viewed as private, not government, speech. And while we agree with the district court that the loudspeaker was a nonpublic forum, we conclude that Cambridge Christian has plausibly alleged that it was arbitrarily and haphazardly denied access to the forum in violation of the First Amendment. Likewise, we cannot say, again drawing all inferences in favor of the appellant, that in denying scommunal prayer over the loudspeaker, the FHSAA did not infringe on Cambridge Christian’s free exercise of religion.

WCTV News reports on the decision.

5th Circuit Upholds Stay of Execution For Buddhist Inmate

In Murphy v. Collier, (5th Cir., Nov. 12, 2019), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, upheld a stay of execution granted last week by a Texas federal district court in the case of a Buddhist inmate who challenges the access he will have to his religious adviser prior to his execution. The district court granted a stay to allow it time to explore factual concerns about the balance between the inmate's religious rights and the prison’s valid concerns for security. (See prior posting.) Christian and Muslim inmates have access to chaplains until the moment they enter the execution chamber.  Members of other religions have access to their outside clergy only until 5:00 p.m.on the day of execution. In his majority opinion for the 5th Circuit, Judge Dennis wrote in part:

We conclude that the district court did not abuse its discretion in granting Murphy’s stay. We agree with the district court’s implicit finding that Murphy has a strong likelihood of success on the merits of his claim that the TDCJ policy violates his rights by allowing inmates who share the same faith as TDCJ-employed clergy greater access to a spiritual advisor in the death house.

Judge Elrod dissented, saying in part:

Because I believe Murphy did not demonstrate that he is likely to succeed on his brand-new, untimely, and unexhausted claim regarding the TDCJ’s pre-execution holding-area protocol, I would hold that the district court abused its discretion in granting Murphy’s motion for stay of execution.

CNN reports on the decision.

Village Sues Church Over Its Homeless Shelter

RNS reports that the affluent Chicago suburb of Village of Orland Park has filed suit against Hope Covenant Church seeking to close down its homeless shelter== the first in the village in over 30 years.  According to RNS:

With temperatures dipping down near the single digits, the seasonal shelter has housed between 15 and 50 people one night every week, including a toddler and local public high school students.

The overnight shelter, the result of a partnership with Illinois’ Beds Plus community organization, is open every Tuesday until April — unless a lawsuit by The Village of Orland Park succeeds in closing it down.

Last week, Village attorneys filed a lawsuit against the church, arguing that the shelter “constitutes an ongoing threat to public health and safety.” The lawsuit cited 28 health and safety code violations caused by the church using the building, which was intended solely for religious services, as an overnight shelter.