Canadian Court OK's Ontario's Refusal To Accredit Christian Law School

In Trinity Western University v. The Law Society of Upper Canada, (CA ON, June 29, 2016), a 3-judge panel of the Court of Appeal for Ontario upheld the decision of the Law Society of Upper Canada to deny accreditation to Trinity Western Law School because its religiously-grounded Community Covenant requires all students to "refrain from sexual intimacy that violates the sacredness of marriage between a man and a woman."  Finding that "the part of TWU’s Community Covenant in issue in this appeal is deeply discriminatory to the LGBTQ community," the Court held that the Law Society "did not violate its duty of state neutrality by concluding that the public interest in ensuring equal access to the profession justified a degree of interference with the appellants’ religious freedoms." In reaching that conclusion, the Court relied in part on the U.S. Supreme Court's 1983 Bob Jones University decision. Similar battles over accreditation of the Christian law school are in progress in the school's home province of British Columbia, as well as in Nova Scotia.  CBC News reports on yesterday's decision. [Thanks to Paul de Mello Jnr. for the lead.]

In Settlement, Good News Clubs Win Equal Access To After-School Facilities

In Cleveland, Ohio, Child Evangelism Fellowship has won equal treatment with non-religious community groups in use of public school facilities for after-school activities.  The consent order (full text) in Child Evangelism Fellowship of Ohio, Inc. v. Cleveland Metropolitan School District, (ND OH, June 28, 2016) provides that the school district will revise its equal access policy for community use of district facilities.  Under the revised policy, the school district will accept the services provided to students by Good News Clubs as in-kind payment of fees for using facilities to the same extent as it accepts services of non-religious groups. The federal court consent order also provides that the school district will pay nominal damages of $100 and attorneys' fees of $149,900 because its prior unequal treatment of Child Evangelism Fellowship violated the 1st and 14th Amendments. Liberty Counsel issued a press release announcing the consent order.

Supreme Court Denies Review In Two Abortion Cases

As reported by the New York Times, yesterday in the wake of its opinion in Whole Women's Health v. Hellerstedt striking down Texas' restrictions on abortion clinics (see prior posting), the Court denied review in cases from Mississippi and Wisconsin in which Courts of Appeal had similarly struck down restrictive state abortion laws.  The Court in its June 28 Order List denied certiorari in Currier v. Jackson Women’s Health Organization, (Docket No. 14-997) (SCOTUSblog case page) and Schimel v. Planned Parenthood of Wisconsin, (Docket No. 15-1200) (SCOTUSblog case page).

Criticism of Religious Scholarship Is Not Religious Discrimination

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

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

Legal Intelligencer reports on the decision.

India's Supreme Court May Consider Constitutionality of Muslim Divorce Practices

India's Supreme Court today said it will examine whether it has jurisdiction to invalidate Muslim personal laws if they interfere with constitutional rights.  According to NDTV, the move comes in a suit challenging triple talaq, the practice that allows a Muslim husband to divorce his wife by pronouncing three times the phrase "I divorce you." (Background.) One of the cases raising the question was brought by a woman whose husband divorced her through triple talaq delivered by mail. The court will hear arguments on the issue on Sept. 6.

Supreme Court Denies Review In Washington State Pharmacy Case

The U.S. Supreme Court today denied review in Storman's Inc. v. Wiesman,  (Docket No. 15-682, cert. denied 6/28/2016), but over a 15-page dissent to the denial of certiorari written by Justice Alito and joined by Chief Justice Roberts and Justice Thomas. (Order List, scroll to pg. 7). In the case, the 9th Circuit upheld rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require pharmacies to deliver all prescriptions, even if the owner has a religious objection. An individual pharmacist with religious objections may refuse to fill a prescription only if another pharmacist working for the pharmacy does so. (See prior posting.)  In his dissent, Justice Alito argued in part:

there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State.

Washington Post reports on today's action by the Supreme Court. [Thanks to Marty Lederman via Religionlaw for the lead.]

British Court Rejects Challenge To Local Anti-Israel BDS Resolutions

In Britain today, a 2-judge panel of the England and Wales High Court rejected a challenge by a Jewish human rights group to anti-Israel resolutions passed by three local councils.  In Jewish Rights Watch (t/a Jewish Human Rights Watch), R (on the application of) v Leicester City Council, [2016] EWHC 1512 (Admin), June 28, 2016, petitioner challenged three resolutions: one by Leicester calling for a boycott of produce from Israeli West Bank settlements; one by Gwynedd calling for a trade embargo with Israel; and one by Swansea expressing concern that a company involved in building a light railway in Israel was also involved in contracts with Swansea. The court summarized Jewish Human Rights Watch's claims:

It is JHRW's case that the Councils singled out Israel for different treatment than that adopted in respect of other countries and, in particular, failed properly or sufficiently to consider the effect of the resolutions on the Jewish community. JHRW contends that the Councils failed to have due regard to the need to eliminate discrimination and harassment of Jewish people, and the need to foster good relations between those who are Jewish and those who are not; and that in doing so they failed to have any regard to the Public Sector Equality Duty, set out in s.149 of the Equality Act 2010, and their legal duties as public authorities, as set out in s.17 of the Local Government Act 1988.

Section 149 of the Equality Act has been interpreted to require public bodies to give advance consideration to equality issues before making policy decisions.  Section 17 of the Local Government Act bars local governments from considering the country or territory of origin in making contract decisions. The court concluded, however, that qualifying language in, and/or the non-binding nature of, the Resolutions prevented them from being in violation of law:

First, the evidence from each of the Defendant Councils was that the resolutions did not bind the Councils to abide by or act upon them. Leicester, Gwynedd and Swansea each operated through an Executive (which developed and implemented policy); and procurement was a function of the Executive rather than the full Council.

The second point is that two of the resolutions contained qualifying words. In the case of Leicester, the boycott resolution was qualified by the words, 'insofar as legal considerations allow'. In the case of Swansea the exhortation to support the position of the UN in relation to the settlement of East Jerusalem was qualified by the words, 'so long as to do so would not be in breach of any relevant legislation.'

Jewish Chronicle reporting on the decision, quotes JHRW which says it will file an appeal. JHRW's statement reads in part:

The local councils, recognising that such boycotts would be unlawful, insisted that their motions were non-binding and not actually implemented, and that the resolutions were in fact never intended to influence policy. So this was never about investment at all. Instead, it was about councils being able to make offensive and misleading declarations that divide communities for cheap political gain and put Jews in the UK in jeopardy – and all at the ratepayer’s expense.

[Thanks to Paul de Mello, Jnr. for the lead.]

Study Finds Global Restrictions On Religion Are Easing

The Pew Research Center last week released its latest report on Trends in Global Restrictions on Religion. The report covers calendar year 2014.  Summarizing its findings, the report says in part:

Of the 198 countries included in the study, 24% had high or very high levels of government restrictions in 2014 (the most recent year for which data are available), down from 28% in 2013.  There was a similar decline in the share of countries with high or very high social hostilities involving religion, which dropped from 27% to 23%. This is the second year in a row the number of countries with this level of religious restrictions has declined, after three years of steady increases.

Although only about a quarter of the countries included in the study fall into the most religiously restrictive categories, some of the most restrictive countries (such as Indonesia and Pakistan) are very populous. As a result, roughly three-quarters of the world’s 7.2 billion people (74%) were living in countries with high or very high restrictions or hostilities in 2014, down slightly from 77% in 2013.

The modest declines in countries with high restrictions or hostilities took place despite a marked increase in the number of countries that experienced religion-related terrorist activities, including acts carried out by such groups as Boko Haram, al-Qaida and the Islamic State (also known as ISIS or ISIL).

USCIRF Elects Reese As Chair

The U.S. Commission on International Religious Freedom announced last week that it has elected Rev. Thomas J. Reese, S.J., as Chair of the Commission.  Dr. Daniel Mark and Dr. James J. Zogby were elected as Vice-Chairs.

Court Moves To Invalidate Mississippi's Law For Recusal By County Clerks Who Object To Same-Sex Marriage

In a decision issued yesterday, a Mississippi federal district court took the first step toward issuing an injunction that would have the effect of preventing county clerks in Mississippi from relying on the provisions in Mississippi HB 1523 that allow them to recuse themselves from issuing marriage licenses to same-sex couples because of religious or moral objections to same-sex marriage. (See prior posting.)  The decision came in an attempt to reopen and expand the injunction issued by the federal district court in 2015 baring enforcement of Mississippi's statutory and constitutional provisions barring same-sex marriage.

In Campaign for Southern Equality v. Bryant, (SD MS, June 27, 2016), the court explained:

The constitutional violation this case addressed in 2014 and 2015 was whether the Fourteenth Amendment permitted a State to treat same-sex couples differently than opposite-sex couples with respect to the issuance and recognition of marriage licenses.

Today’s motion concerns the same issue. In HB 1523 § 3(8)(a), the State is permitting the differential treatment to be carried out by individual clerks.***

Section 3(8)(a) is a significant change sufficient to reopen this case and reconsider the language of the Permanent Injunction....  The undersigned, though, is not persuaded that the 81 non-party Circuit Clerks are presently bound by the Permanent Injunction.... [T]he better course of action is to ensure that the remaining 81 Circuit Clerks have received actual notice of a Permanent Injunction that binds them before they are held accountable for it. The parties shall confer on an appropriate procedure for providing that notice....

No one has argued that the Permanent Injunction is invalid, but the briefing now suggests that it lacks all necessary parties. Judicial economy may be served by an Amended Permanent Injunction which enjoins § 263A of the Mississippi Constitution and Mississippi Code § 93-1-1(2), incorporates appropriate language from Rule 65, and clarifies that the persons it binds must issue marriage licenses “on the same terms and conditions as opposite-sex couples.” Obergefell, 135 S. Ct. at 2605....

The point of adding Obergefell’s language is simple: the Supreme Court’s ruling will be enforced. Obergefell “is the law of the land and, consequently, the law of this circuit.” 791 F.3d at 627. Mississippi’s elected officials may disagree with Obergefell, of course, and may express that disagreement as they see fit – by advocating for a constitutional amendment to overturn the decision, for example. But the marriage license issue will not be adjudicated anew after every legislative session. And the judiciary will remain vigilant whenever a named party to an injunction is accused of circumventing that injunction, directly or indirectly.

BuzzFeed reports on the decision.

Supreme Court Invalidates Texas Abortion Access Law

In a 5-3 decision today in Whole Women's Health v. Hellerstedt, (Sup. Ct., June 27, 2016), the U.S. Supreme Court struck down key provisions in Texas' controversial statute regulating access to abortions.  The majority opinion, written by Justice Breyer, held that both the requirement for a physician performing an abortion to have admitting privileges in a near-by hospital and for abortion clinics to meet standards that apply to ambulatory surgical centers place a substantial obstacle in the path of women seeking a pre-viability abortion and place an undue, unconstitutional burden on abortion access. Justices Kennedy, Ginsburg, Sotomayor and Kagan joined Justice Breyer's opinion. Justice Ginsburg also filed a concurring opinion. Justice Thomas filed a dissenting opinion. Justice Alito also filed a dissenting opinion which Chief Justice Roberts and Justice Thomas joined.

Religious Tracts Cannot Be Distributed On Arena Plaza

In Ball v. City of Lincoln, Nebraska, (D NE, June 23, 2016), a Nebraska federal district court dismissed an attempt to enjoin authorities from enforcing a policy that, among other things, bars leafleting on a Plaza Area outside the Pinnacle Bank Arena unless requested by a person renting out the Arena or the artists or productions they represent. (Full text of Use Policy.) The Arena was jointly constructed by the city of Lincoln and the University of Nebraska.  Plaintiff Larry Ball handed out religious tracts in the Plaza Area on several occasions, and was cited for trespass.  The court upheld the Arena's policy, finding that the Plaza Area is a non-public forum and that the restrictions on its use are reasonable because they are neutral and do not curtail free speech in nearby areas. Lincoln Journal Star reporting on the decision says that an appeal is planned.

Recent Articles of Interest

From SSRN:

• Patrick McKinley Brennan, A Catholic Way to Cook a Hamburger? The Catholic Case against McLaw, (Villanova Law Review, Forthcoming).
• Corinna Lain, Death Row, Calls for Indifference, and Redemption of the Soul, (77 Ohio St. L.J. Furthermore, Forthcoming).
• Caroline Mala Corbin, Deference to Claims of Substantial Religious Burden, (Illinois Law Review Online, p.10, 2016).
• Danielle Weatherby & Terri Day, LGBT Rights and the Mini RFRA: A Return to Separate But Equal (Draft), (DePaul Law Review, Forthcoming).
• Dwight G. Newman, Judicial Method on Rights Conflicts in the Context of Religious Identity, (June 24, 2016).
• Courtney G. Joslin, Marriage Equality and its Relationship to Family Law, (129 Harv. L. Rev. F. 197 (2016)).

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

• Gabor Halmai, Constitutionalism, Law, and Religion in Israel: A State's Multiple Identities, (J Civil Legal Sci 2016).
• Mohamed Abdelaal, The Paradox of Freedom of Religion in Post-Revolutionary Egypt, (Pieter Coertzen, M. Christian Green, and Len Hansen (eds.) Religious Freedom and Religious Pluralism in Africa: Prospects and Limitations (African Sun Media, 2016)).
• Luke Beck, When is an Office or Public Trust 'Under the Commonwealth' for the Purposes of the Religious Tests Clause of the Australian Constitution?, (Western Sydney University School of Law Research Paper No. 04/2016 (2016)).
• Alfons Aragoneses, Convivencia and Filosefardismo in Spanish Nation-building, (Max Planck Institute for European Legal History Research Paper Series No. 2016-05 (2016)).
• Victor M. Muniz-Fraticelli, The (Im)Possibility of Christian Education, (June 21, 2016).
• Robert W. McGee, The Relationship between Religion and Views Toward Homosexuality: An Empirical Study of 98 Countries, (June 23, 2016).
• Robert W. McGee, Does Religion Influence Views Toward Homosexuality: An Empirical Study of 16 Countries, (June 23, 2016). 
• Peter M. Beattie, Anti-Semitism and Opposition to Israeli Government Policies - The Roles of Prejudice and Information, (June 15, 2016).
• Elen Seymour & Marina Nehme, The ACNC, the Senate, the Commission of Audit and the Not-for-Profit Sector, (Western Sydney University School of Law Research Paper No. 05/2016 (2015)).

Top Religious Leaders React To Brexit

Several top religious leaders have issued statements reacting to Thursday's vote in Britain to exit from the European Union.  Here are links:

• Archbishops of Canterbury and York
• Cardinal Vincent Nichols, Catholic Archbishop of Westminster
• Britain's Chief Rabbi Ephraim Mirvis
• Pope Francis

Ark Encounter Set To Open In Kentucky

Today's New York Times has a background piece on Kentucky's Ark Encounter-- the massive $102 million Noah's Ark display scheduled to open July 7.  The project has been the subject of extensive controversy over whether state tourism subsidies are appropriate. (See prior  posting.) The Times quotes Ark Encounter promoter, Ken Ham:

The reason we are building the ark is not as an entertainment center.  I mean it’s not like a Disney or Universal, just for anyone to go and have fun. It’s a religious purpose. It’s because we’re Christians and we want to get the Christian message out.

Court Says Religious Autonomy Precludes Adjudication of Suit By Torture Victim

In a fascinating decision handed down June 17, an Oklahoma trial court held that the "religious autonomy doctrine" requires it to dismiss a suit against a U.S. church by a convert from Islam to Christianity who was captured and tortured in Syria because of his conversion. The facts are set out more fully in a complaint (full text) filed in 2014.  A Tulsa, Oklahoma resident who was born in Syria decided to convert, but told First Presbyterian Church leaders that his conversion had to remain confidential because he periodically traveled back to Syria and the punishment for apostasy under Sharia law was death. Despite assurances of confidentiality, the church published an announcement of his baptism in its Order of Worship, which was posted on the World Wide Web.  After traveling back to Syria, plaintiff was bound, beaten and tortured by radical Muslims who threatened to behead him. He eventually escaped.  His suit alleges that the church is guilty of negligence, breach of contract and outrageous conduct leading to extreme emotional distress.

In Doe v. First Presbyterian Church USA of Tulsa, Oklahoma, (OK Dist. Ct., June 17, 2016), the court held that the public dissemination of the names of those who have been baptized "is a key part of how the Church requires a conversion and baptism to be 'visible" to the world." The court went on to say:

the simple dispositive issue is whether the public dissemination of Plaintiff's name as a baptized person is "rooted in religious belief"....

[A] secular Court like this one must not consider claims ... that arise out of a sacrament because a sacrament is part of the most sacred beliefs of that religious institution.... Defendants' deeply held religious belief about the visible, public nature of baptism must not be disturbed by this Court. [emphasis in original]

Tulsa World reports on the decision, with additional background.

Recent Prisoner Free Exercise Cases

In Russell v. Helder, 2016 U.S. Dist. LEXIS 79862 (WD AR, June 20, 2016), an Arkansas federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 79870, May 18, 2016), and refused to dismiss a suit by a Wiccan inmate who was seeking a vegan diet for religious reasons.

In Maon v. State Department of State Hospitals, 2016 Cal. App. Unpub. LEXIS 4576 (CA App., June 21, 2016), a California state appeals court upheld a decision by authorities at a state mental hospital refusing to allow a patient detained there who was to be married in the hospital's visiting room to wear a tuxedo for the ceremony in accordance with Buddhist tradition.

In Rivera v. Raines, 2016 U.S. Dist. LEXIS 82495 (SD IL, June 23, 2016), an inmate complaining about the refusal of prison officials to permit Nation of Gods & Earths to hold religious services was allowed by an Illinois federal district court to move ahead with his challenges under the 1st Amendment, the Equal Protection Clause, and his official capacity RLUIPA claims.

Free Exercise Defense To Food and Drug Act Indictment Rejected

In United States v. Girod, 2016 U.S. Dist. LEXIS 82365 (ED KY, June 24, 2016), a Kentucky federal district court refused to dismiss an indictment under the Food, Drug and Cosmetic Act against defendant who claimed that his religious faith rejects FDA testing.  Defendant was charged with operating an establishment that manufactured and marketed products for the treatment of skin disorders, cancer, sinus infections, and other ailments, without required registration with the FDA. (See opinion at 2016 U.S. Dist. LEXIS 81047, June 22, 2016). The court held that defendant did not properly raise his free exercise objection, but that even if he had he had not shown that the Act imposes a substantial burden on his exercise of religion.

ADL Issues Annual Audit of Anti-Semitic Incidents

This week the ADL issued its 2015 Audit of  Anti-Semitic Incidents. It showed 941 incidents in the United States last year, a 3% increase from 2014. Fifty-six of the incidents were assaults (compared to 36 in 2014).  Overall, the number of anti-Semitic incidents on college campuses grew to 90 (compared to 47 in 2014). According to the ADL, the number of anti-Semitic incidents peaked in 2006 (1,554 incidents that  year), and has generally been on the decline since then. The Audit adds:

ADL witnessed an explosion of hate online, especially on social media platforms in 2015. While the Audit includes incidents of online anti-Semitism reported to ADL in which an individual or institution is explicitly targeted, it does not count general anti-Semitic expressions online.

HHS Sued Over Allowing Catholic Agencies To Limit Health Services To Unaccompanied Immigrant Minors

The ACLU today filed suit in a California federal district court alleging that officials in the U.S. Department of Health and Human Services have violated the Establishment Clause in allowing the U.S. Conference of Catholic Bishops and its sub-grantees to impose religiously based restrictions on the use of taxpayer funds to aid unaccompanied immigrant minors.  The complaint (full text) in ACLU of Northern California v. Burwell, (ND CA, filed 6/24/2016) alleges in part:

1. There are currently thousands of unaccompanied immigrant minors ... in the legal custody of the federal government.... Many have come to the United States fleeing abuse and torture in their home countries; many have been sexually abused or assaulted ....; some have also been trafficked for labor or prostitution....

2. The federal government is legally required to provide these young people with basic necessities, such as housing, food, and access to emergency and routine medical care, including family planning services, post-sexual assault care, and abortion.

3. To provide young people with these necessities, the government ... issues grants to private entities, including a number of religiously affiliated organizations.

4. ... Defendants authorize a few of these religiously affiliated organizations—such as the United States Conference of Catholic Bishops ... and its subgrantees across the country ... to refuse on religious grounds to provide information about, access to, or referrals for contraception and abortion, even if the young person in their care has been raped.

New York Times reports on the lawsuit.

Orthodox Church Lays Groundwork For Legal Enforcement of Ban on Church Use For Same-Sex Marriages

The Holy Synod of Bishops of the Orthodox Church in America last week adopted a statement (full text) titled Sincerely Held Religious Beliefs Regarding Marriage.  It is apparently designed to allow parishes and monasteries to legally enforce restrictions on use of their facilities for same-sex or transgender marriage ceremonies without courts invoking the ecclesiastical abstention doctrine to refuse to do so.  The introduction to the statement says in part:

The purpose of that statement was to articulate the basic and fundamental beliefs of the Orthodox Church in America regarding marriage and to do so in terms which could be understood and applied by federal, state, and local governmental officials without the necessity of any probing inquiry or interpretation which might require them to transgress limitations imposed on them by the First Amendment.

The statement says in part that "Marriage can only be between two people whose birth sex is male and female." It then calls for each diocese, parish, institution and monastery to adopt a statement declaring:

The (Name of the Parish/Hall/Facility) is the property of the (Name of the Parish/Institution/Monastery), a non-profit church organization located in (Location). Due to sincerely held religious beliefs, documented in the Biblical, dogmatic and canonical documents of the Orthodox Church, we do not permit the (Name of the Parish/Hall/Facility) to be used for the following purposes: events, services or receptions related to non-Orthodox sacraments (including, but not limited to, baptisms, weddings or funerals); non-Orthodox worship services; and partisan political or social rallies.

Texas Supreme Court: Challenge To Home-School Rules Does Not Require Exhaustion of Administrative Remedies

In McIntyre v. El Paso Independent School District, (TX Sup. Ct., June 24, 2016), the Texas Supreme Court in a 6-3 decision held that parents of home-schooled children were not required to exhaust administrative remedies before they challenged the constitutionality of state law provisions mandating curricular standards for home schools.  The parents alleged that their rights to due process, equal protection, and free exercise of religion under the Texas Constitution and U.S. Constitutions were infringed, along with their right to privacy under the Texas Constitution. According to the majority:

The McIntyres claim that the District and its attendance officer unconstitutionally investigated them and filed criminal complaints against them. They do not claim to be aggrieved by the school laws.

The dissent by Justice Green, joined by Justices Johnson and Brown argued:

[T]he Court today ignores our rules of statutory construction and holds that homeschool parents can avoid that exhaustion requirement simply by cloaking their school-law claims in constitutional language.

According to a Christian Science Monitor report on the decision, the parents stopped teaching their children a standard curriculum because they believed they would soon be "raptured."

Indonesian Police Investigate Whether Facebook Post Was Blasphemy

In Indonesia yesterday, Ade Armando, a lecturer in Communications Science at the University of Indonesia, was questioned by the Jakarta Police Special Criminal Investigation Unit after an employee of a media company filed blasphemy charges against Armando.  According to Tempo, the charges stem from a post by Armando on his Facebook page reading: "Allah is not an Arab. Allah will be happy if His verses are being recited with Minang, Ambon, Chinese, Hip hop, Blues style." Apparently the post was in response to a suggestion by Indonesia's Religious Affairs Minister for a Qur'an recitation festival.  Armando says that the post generated a charge that he was likening God to man. Art. 156a of the Indonesia Penal Code prescribes up to 5 years in prison to anyone "who deliberately in public gives expression to feelings ... which principally have the character of being at enimity with, abusing or staining a religion, adhered to in Indonesia...."

9th Circuit Hears Challenge To Ban On Conversion Therapy

The U.S. 9th Circuit Court of Appeals yesterday heard oral argument (video of oral arguments) in Welch v. Brown.  In the case, a California federal district court rejected Free Exercise and Establishment Clause challenges to California's ban on mental health professionals providing "sexual orientation change efforts" (SOCE) for minors. (See prior posting.).  SFGate reports on yesterday's oral arguments.

7th Circuit: Bus Company Wrongly Refused Ad From Pro-Life Health Link

In Women's Health Link, Inc. v. Fort Wayne Public Transportation Corp., (7th Cir., June 22, 2016), the U.S. 7th Circuit Court of Appeals held that Fort Wayne's Citilink wrongly refused to accept an ad that Women's Health Link wanted to place on city buses. Citilink's rules bar ads that "express or advocate opinions or positions upon political, religious, or moral issues."  The proposed ad did not express any such opinion or position, but the health care referral service it advertised is pro-life and so urges alternatives to abortion.  The court held that Citilink's rules are limited to ad content, and do not relate to the advertiser's underlying policies or material that may be on the advertiser's website. It concluded: "Citilink’s refusal to post the ad was groundless discrimination against constitutionally protected speech." Reuters reports on the decision.

Muslim NYPD Officer Wins Temporary Relief Over Beard Length

Once again (see prior posting) the New York City Police Department's grooming rules are being challenged in court.  According to yesterday's New York Daily News, the NYPD on Tuesday imposed a 30-day suspension without pay on a Muslim officer who works as a law clerk for the Department. The officer, Masood Sayed, refused to shave his one-inch long beard. The NYPD had previously allowed him to wear a beard one millimeter in length, but said a longer beard would create problems with proper sealing of department-issued gas masks.  A federal district court yesterday, finding a likelihood of success by Sayed, barred the NYPD from taking further disciplinary action against him until a July 8 hearing.

No Police Liability For Telling Woman To Stop Praying During Investigation

In Sause v. Louisburg Police Department, 2016 U.S. Dist. LEXIS 80243 (D KA, June 17, 2016), a Kansas federal district court dismissed on qualified immunity grounds plaintiff's claim that her free exercise rights were infringed when a police officer investigating a noise complaint told plaintiff to stop praying while the officers were in the middle of talking with her in her apartment about the complaint. According to the court:

While Officer Stevans's instruction to Plaintiff to stop praying may have offended her, it does not constitute a burden on her ability to exercise her religion. Plaintiff fails to provide any allegations that would suggest Officer Stevans's actions coerced her into conduct contrary to her religious beliefs, or that he otherwise prevented her from practicing her religion.

HHS Rules That California Did Not Violate Weldon Amendment

Yesterday the Office for Civil Rights of the Department of Health and Human Services (OCR) issued a letter (full text) responding to complaints that the California Department of Managed Health Care violated the Weldon Amendment when it directed several health insurance companies to amend their plan documents to remove coverage limitations and exclusions for elective abortions. Subsequently California granted an exemption to one of the companies to allow it to offer plans that exclude abortion coverage to religious employers. The complaints were filed by churches, a religious organization, a church-run school and employees of a religiously-affiliated university.  In its Findings, OCR said in part:

By its plain terms, the Weldon Amendment's protections extend only to health care entities and not to individuals who are patients of, or institutions or individuals that are insured by, such entities.... Here none of the seven insurers that received the CDMHC letter ... objected to providing coverage for abortions..... As a result, there is no health care entity protected under the statute that has asserted religious or moral objections to abortion and therefore there is no covered entity that has been subject to discrimination within the meaning of the Weldon Amendment.

... A finding that CDMHC has violated the Weldon Amendment might require the government to rescind all funds appropriated ... to the State of California.... HHS' Office of General Counsel, after consulting with the Department of Justice, has advised that such a rescission would raise substantial questions about the constitutionality of the Weldon Amendment.

Los Angeles Times reports on OCR's ruling.

Trump Meets With Evangelical Leaders In New York

Washington Post has a lengthy account of Donald Trump's meeting in New York yesterday with a large group of Christian conservative leaders. Here are some excerpts from the article:

Donald Trump won a standing ovation from hundreds of Christian conservatives who came to New York City on Tuesday with a somewhat skeptical but willing attitude toward a man who has divided their group with comments on women, immigrants and Islam. In his comments, the presumptive GOP presidential nominee said he would end the decades-old ban on tax-exempt groups’ — including churches — politicking, called religious liberty “the No. 1 question,” and promised to appoint antiabortion Supreme Court justices....

Throughout the talk Trump emphasized that America was hurting due to what he described as Christianity’s slide to become “weaker, weaker, weaker.” He said he’d get department store employees to say “Merry Christmas” and would fight restrictions on public employees, such as public school coaches, from being allowed to lead sectarian prayer on the field....

While polls show that the majority of evangelicals — who make up about a fifth of the country — are favorable toward Trump, his campaign has bitterly divided Christian conservatives in general. Those who oppose him do so strongly, and later Tuesday, a separate group of conservatives — including leading evangelicals — were meeting to strategize about a possible third candidate.... 

“This meeting marks the end of the Christian Right,” Michael Farris, a national homeschooling pioneer and longtime figure of the Christian Right, wrote on his Facebook page Tuesday.  He noted that he was present at the first gathering of the Moral Majority in 1980: “The premise of the meeting in 1980 was that only candidates that reflected a biblical worldview and good character would gain our support. … Today, a candidate whose worldview is greed and whose god is his appetites (Philippians 3) is being tacitly endorsed by this throng. … This is a day of mourning.”

Also yesterday the Trump campaign announced a new 25-member Evangelical Executive Advisory Board.  The Board includes Michele Bachmann, James Dobson, Jerry Falwell and Ralph Reed.  A larger Faith and Cultural Advisory Committee will be announced later this month.  [Thanks to Scott Mange for the lead.]

UPDATE: Here is a full transcript of Trump's meeting.

4th Circuit Revives Some Claims In Challenge To School District's Graduation Practices

American Humanist Association v. Greenville County School District, (4th Cir., June 21, 2016), is a challenge to the graduation ceremony prayer policy of the Greenville County, South Carolina school district, as well as to its practice of holding some graduation ceremonies at a religious chapel on a local college campus.  In a largely procedural ruling, the U.S. 4th Circuit Court of Appeals vacated in part the district court's dismissal of the case.  On the challenge to graduation prayer, the court held that because the individual plaintiffs named in the lawsuit had moved out of state while the appeal was pending so their children no longer attended school in the district, the suit was moot as to them.  However it remanded for further discovery to determine whether the organizational plaintiff, American Humanist Association, continues to have standing because of the interests of other of its members.

The appeals court agreed with the district court that the claim for injunctive relief to bar holding of future graduation ceremonies in religious venues should be dismissed because while the case was still pending in district court plaintiffs moved within the district to schools that had never used religious venues for school events.  However the appeals court held that plaintiffs continued to have standing to pursue their claim for nominal damages because of past use of the religious chapel for graduation. American Humanist Association issued a press release announcing the decision. (See prior related posting.) Greenville News reports on the decision.

FLDS Leader Flees While On Bond Awaiting Trial

Lyle Jeffs, a leader of the polygamous FLDS Church, has fled while out on bond awaiting trial on charges of conspiracy to commit food stamp fraud and conspiracy to commit money laundering.  As reported by AP and KUTV News, after being denied bond several times as a potential flight risk, earlier this month Jeffs was finally released in home confinement on the condition he wear a GPS monitor and leave the Salt Lake City house where he was staying only for work, doctors' appointments and religious services.  A warrant for Jeffs arrest was issued Sunday.

Court Denies Preliminary Injunction Against Mississippi's Conscience Protection For County Clerks

In Alford v. Moulder, (SD MS, June 20, 2016), a Mississippi federal district court denied a preliminary injunction in a suit by a same-sex couple who are challenging Mississippi's recently enacted Freedom of Conscience Law, HB 1523.  The suit specifically challenges provisions in the law that allow county clerks to recuse themselves on religious or moral grounds from issuing marriage licences. (See prior posting.) The court held that plaintiffs failed to show that injury to them is "imminent" since they merely allege that they plan to apply for a marriage license sometime within the next three years.  Plaintiffs immediately filed a Motion for Reconsideration.

Meanwhile, the same judge heard oral arguments yesterday in a separate case that is also challenging HB 1523.  AP reports that in this suit, plaintiffs are arguing that provisions allowing clerks to recuse themselves in favor of another employee issuing the license could create public humiliation for a same-sex couple when they apply for a license.  "There can't be separate-but-equal marriage. There can't be Jim Crow kind of marriage," the couples' attorney told the court.  Four separate cases challenging HB 1523 have been filed, and the judge will hear oral arguments in the remaining two later this week.

New York Legislature Punts On Extending Statute of Limitations For Child Sex Abuse Claims

As reported by the New York Daily News, the New York legislature adjourned for the year early last Saturday morning without taking action on a pending bill, the Child Victims Act, that would have extended the statute of limitations for child sexual abuse claims by 5 years, created a 6-month window for currently stale claims, and treated suits against public and private entities alike. Bill Donohue, president of the Catholic League for Civil and Political Rights, said in a statement posted yesterday that he is proud of his organization's role in preventing enactment of the law, arguing in part:

If the statute of limitations were lifted on offenses involving the sexual abuse of minors, the only winners would be greedy and bigoted lawyers out to line their pockets in a rash of settlements. The big losers would be the poor, about whom the attorneys and activists care little: When money is funneled from parishioners to lawyers, services to the needy suffer.

New Report on Islamophobia In the United States

Yesterday the Council on American-Islamic Relations and the Center for Race and Gender at UC Berkeley released a report titled Confronting Fear: Islamophobia and its Impact in the U.S. 2013-2015.  The report suggests four priority areas in creating a national strategy to further American understanding of Islam:

1. ... [E]nhancing Muslim involvement in the issues of other domestic communities which face challenges to full and equal protection and participation in society.

2. Establishing in the public conscience that Islamophobia is identical to other forms of prejudice and undermines American ideals.

3. Empowering a diverse range of legitimate voices to persuasively contribute, particularly in the news media, to the views of Islam and American Muslims within public dialogue.

4. Enhancing community ability to impact U.S. political and policy life through public service, voting, and meaningful political contributions.

Examining the impact of Islamophobia in the United States, the report finds:

The U.S.-based Islamophobia network’s inner core is currently comprised of at least thirty-three groups whose primary purpose is to promote prejudice against, or hatred of, Islam and Muslims.... Between 2008 and 2013, inner-core organizations had access to at least $205,838,077 in total revenue. 

Paper Calls Out Anti-Semitic Harassment of Journalists

The Forward today is calling attention to the continuing anti-Semitic harassment on social media (mainly Twitter) of Jewish journalists (or those perceived to be Jewish).  The anti-Semitic messages have often come in response to journalists' coverage of Donald Trump's campaign. A June 7 Washington Post piece has examples. The Forward says:

Online bullying is a non-partisan activity — both the far left and the far right are quite good at it — but the virulent anti-Semitism many journalists experience today comes from what is known as the “alt-right,” shadowy white supremacists who mainly hide behind the anonymity of Twitter to traffic in horrible Holocaust imagery and directly threaten Jews.

Many of these threats draw on connections with Trump’s presidential campaign, using Trump’s image and targeting his critics, including several of our regular writers. Even if you don’t believe that the presumed Republican standard bearer has stoked this cyber-hate (which is a generous assumption), you have to admit that he appears to have done nothing to minimize or condemn it.

As a symbolic protest, The Forward says it will refuse for 24 hours (starting tomorrow) to publish anything mentioning Trump's name or his campaign.

Israeli Court Tells City To Remove Religiously Inspired Signs Directing Women To Wear Modest Clothes

In Israel yesterday, the Jerusalem District Court ordered the mayor of the city of Beit Shemesh to remove signs posted around the city by ultra-Orthodox Jews instructing women to wear long sleeves and long skirts. Other signs tell women to keep off sidewalks near synagogues and yeshivas where men congregate.  According to today's Haaretz, the suit seeking removal of the signs was filed three years ago on behalf of four Orthodox women who live in Beit Shemesh. They argue that the signs encourage violence and harassment against women who ignore them.  A Magistrate's Court ruled in the women's favor last year (see prior posting), but the city has ignored the ruling. So plaintiffs went to a higher court which has now given the city's mayor three weeks to remove the signs, and told the city to act more forcefully in the future to prevent new signs from going up.

Donald Trump On Profiling of Muslims

Yesterday in a phone interview with program host John Dickerson on CBS's Face the Nation, presumptive Republican nominee Donald Trump spoke about the possibility of profiling Muslims in the wake of the attack in Orlando on a gay nightclub. Here is an excerpt from the full transcript:

DICKERSON: When you talk about political correctness, should a Muslim buying ammunition and weapons get extra scrutiny?

TRUMP: I don't know about that.

I think, right now, we have some pretty big problems. And there are problems coming out of radical Islamic -- the radical Islamic groups. You have a very, very strong group of people that is radical Islamic, and that seems to be a problem.

DICKERSON: And you said you would check respectfully the mosques. How do you respectfully check a mosque?

TRUMP: Well, you do as they used to do in New York, prior to this mayor dismantling.

By the way, if you go to France right now, they're doing it in France. In fact, in some instances, they are closing down mosques. People don't want to talk about it. People aren't talking about it. But look at what they're doing in France. They are actually closing down mosques.

DICKERSON: Can I ask you just a bottom-line question before we move on? You like to speak plainly. In December, we talked, and you said there possibly should be profiling. Just as a bottom line here, are you talking about increasing profiling of Muslims in America?

TRUMP: Well, I think profiling is something that we're going to have to start thinking about as a country. And other countries do it.

And you look at Israel and you look at others, and they do it. And they do it successfully. And I hate the concept of profiling. But we have to start using common sense, and we have to use -- we have to use our heads.

I see people that -- and I have seen it recently. We had a case where very much in my case, where we had -- we had tremendous numbers of people coming into a speech I was making. And people that obviously had no guns, had no weapons, had no anything, and they were being -- they were going through screening.

And they were going through the same -- the same scrutiny, the absolute same scrutiny as somebody else that looked like it could have been a possible person. So, we really have to look at profiling. We have to look at it seriously.

And other countries do it. And it's not the worst thing to do. I hate the concept of profiling, but we have to use common sense. We're not using common sense.

Recent Articles and Books of Interest

From SSRN:

• Debbie Kaminer, Religious Accommodation in the American Workplace: The Impact of the Supreme Court's Decision in EEOC v. Abercrombie & Fitch, (June 10, 2016).
• Elizabeth Shakman Hurd, Review of Beyond Church and State by Matthew Scherer, (Augustinian Studies 47:1 (2016) 114–118).
• Danieli Evans, Religious Objections to the Death Penalty after Hobby Lobby, (Stanford Law & Policy Review, Vol. 27, No. 1, 2015).
• Abner S. Greene, A Secular Test for a Secular Statute, (University of Illinois Law Review, Vol. 34, 2016).
• Mark Walters, Challenging Orthodoxy: Towards a Restorative Approach to Combating the Globalization of Hate, (The Globalization of Hate: Internationalizing Hate Crime, Chapter 18, 2016).
• Jennifer Schweppe & Mark Walters, Hate Crimes: Legislating to Enhance Punishment, (Oxford Handbooks Online, Criminology and Criminal Justice, 2015).
• Mark Walters, Readdressing Hate Crime: Synthesizing Law, Punishment and Restorative Justice, (Hate, Politics, Law, Oxford University Press, Forthcoming).

From SmartCILP:

• Symposium: Religious Accommodation in the Age of Civil Rights. 9 Harvard Law & Policy Review 1-193 (2015).
• Scott Titshaw, Same-Sex Spouses Lost in Translation? How to Interpret “Spouse” in the E.U. Family Migration Directives, 34 Boston University International Law Journal 45 (2016).

Recent Books:

• John Witte, Jr. and Joel A. Nichols, Religion and the American Constitutional Experiment, Fourth Edition, (Oxford Univ. Press, April 2016).
• Danielle Keats Citron, Hate Crimes in Cyberspace, (Harvard Univ. Press, May 2016).
• Ferruh Yilmaz, How the Workers Became Muslims-- Immigration, Culture, and Hegemonic Transformation in Europe, (University of Michigan Press, 2016).
• Jonathan Fox, The Unfree Exercise of Religion-- A World Survey of Discrimination against Religious Minorities, (Cambridge Univ. Press, Feb. 2016).
• Norman Doe, Christian Law-- Contemporary Principles, (Cambridge Univ. Press, Nov. 2015).

Indian Court Sentences 24 For Roles In 2002 Gujarat Religious Riots

On Friday, a court in India imposed sentences on the 24 defendants who were convicted earlier this month in the 2002 killings of 69 Muslims during religious riots in Gujarat state. AFP reports that eleven of the Hindu defendants were sentenced to life in prison for their part in the massacre at the Gulbarg Society housing complex.  The court sentenced twelve others to seven years in jail, and the remaining defendant to ten years for rioting and arson.

Recent Prisoner Free Exercise Cases

In Davis v. Davis, (5th Cir., June 14, 2016), the 5th Circuit , while affirming in part, vacated and remanded a district court's refusal to allow Native American inmates to wear long hair or kouplocks. The district court had not evaluated plaintiffs' claims in light of the specific characteristics and security risks posed by each inmate.

In Rouser v. White, (9th Cir., June 17, 2016), the 9th Circuit, in a 2-1 decision, held that the district court had abused its discretion in terminating a 2011 consent decree that allowed a Wiccan inmate to practice his religion in various ways.

In Epps v. Hein, 2016 U.S. Dist. LEXIS 73906 (SD GA, June 6, 2016), a Georgia federal magistrate judge dismissed, but with leave to amend to allege a sincere religious belief, an inmate's complaint that he was denied a kosher Rastafarian diet.

In Ahdom v. Etchebehere, 2016 U.S. Dist. LEXIS 76149 (ED CA, June 9, 2016), a California federal district court permitted a Muslim inmate to move ahead under the free exercise clause with his complaint that he had been denied religious Ramadan Halal meals for a period of six days.

In Parker v. Shepard, 2016 U.S. Dist. LEXIS 77854 (SD GA, June 15, 2016), a Georgia federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 78216, April 18, 2016)  and denied a preliminary injunction to a Rastafarian inmate who wished to wear long hair and dreadlocks.

In Muhammad v. Crews, 2016 U.S. Dist. LEXIS 78744 (ND FL, June 15, 2016), a Florida federal district court, adopting a magistrate's recommendations in part, dismissed a number of claims by a Muslim inmate but remanded for evaluation under a proper framework his claim that he was denied a religious diet during a 4-year period.

In Owens v. Kernan, 2016 U.S. Dist. LEXIS 78854 (ED CA, June 16, 2016), a California federal magistrate judge dismissed a claim by an inmate serving a life sentence that denial of a conjugal visit to consummate his marriage violates his rights under RLUIPA.

Suit Seeks To Have Archbishop Sheen's Remains Moved To Illinois

Last Monday, the niece of the late Archbishop Fulton J. Sheen filed suit in a New York state trial court seeking to have Sheen's body, which is now buried in St. Patrick's Cathedral in New York City, disinterred and moved to a cathedral in Peoria, Illinois.  Sheen was ordained as a priest in Peoria.  He was the host of a widely watched award-winning television show titled Life Is Worth Living broadcast in the 1950's. Sheen served as Auxiliary Bishop of New York from 1951 to 1966.  He died in 1979.

Sheen is about to be beatified by the Vatican-- a step toward Sainthood.  The Beatification Ceremony will take place in Peoria since Peoria's Bishop Daniel Jenky was the Promoter for the Cause of Sainthood for Sheen.  According to the New York Times, New York church officials object to moving the remains, saying that it was Sheen's personal wish to be permanently buried beneath the high altar of St. Patrick’s Cathedral. They are apparently willing however to allow Sheen's remains to be moved temporarily to Peoria for the Beatification Ceremony, but then returned to New York.  The complaint (full text attached to press release) in Cunningham v. Trustees of St. Patrick's Cathedral, (Sup. Ct. NY County, filed 6/13/2016), contends that:

if Archbishop Sheen knew during his lifetime that he would be declared a Saint of the Roman Catholic Church that it would have been his wish that his remains be interred in St. Mary's Cathedral in Peoria.... St. Mary's was the church he attended with his family as a youth and where he made his first Holy Communion.

(See prior related posting.) As an aside, perhaps reflecting a deficient spell check program, the complaint (as opposed to the press release attached to it) consistently refers to Sheen's upcoming "Beautification" rather than "Beatification."

Canada Denies Entry To U.S. Mohel

Canadian border officials last month refused entry into Canada to a Detroit-based mohel who was crossing into neighboring Windsor in order to perform a Jewish ritual circumcision for a family in Windsor.  According to a June 8 report by the Detroit Jewish News, Dr. Craig Singer (a physician, as well as a mohel certified by Hebrew Union College) was told by border officials that he would need a permit as a temporary foreign worker, and that he could be prosecuted for performing a surgical procedure in Canada without proper authorization. Canada's Immigration and Refugee Protection Regulations, Paragraph 186(l) provide that a foreign national may work in Canada without a work permit "as a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling."  Enforcement guidelines provide:

Persons seeking entry under the authority of R186(l) should be able to provide documentation to support their request for entry that addresses: the genuineness of the offer of employment of the religious denomination that seeks to employ them; and their ability to minister to a congregation under the auspices of that religious denomination.

House Holds Hearings On Global Religious Freedom

Yesterday a subcommittee of the House Foreign Affairs Committee held hearings titled The Global Religious Freedom Crisis and Its Challenge to U.S. Foreign Policy.  Witnesses from the State Department and the U.S. Commission on International Religious Freedom testified.  Transcripts of their testimony are available from the Committee's website.

Suit Between Indian Tribes Challenges Building Site For History Center

Non Doc reported yesterday on a federal court lawsuit filed in May by the Caddo Nation against the Wichita and Affiliated Tribes challenging the construction of a History Center by the Wichitas in western Oklahoma on land held jointly by the Wichita Tribe, Caddo Nation and Delaware Tribe.  A Caddo press release has further background.  The History Center is being built on a 71-acre parcel below a hill on which the Riverside Indian School is located.  The boarding school has been in operation since 1872 and was attended by Caddo students, as well as students from other tribes.  Students who died at the school were buried near it.  The Wichita say that all the graves are by the school at the top of the hill, but in the lawsuit members of the Caddo Nation contend that there are also graves at the site of the History Center below. According to Non Doc:

The Caddo filed a lawsuit May 25 seeking to halt construction for two weeks while the tribe conducted archeological work with ground-penetrating radar, or GPR, which can identify potential artifacts or features without the need to disturb a site by digging.

A U.S. District Court judge ordered a temporary stop to work at the site, one and a-half miles north of Anadarko, pending a hearing. The order was lifted May 31, and the Wichita resumed work. The Caddo then filed an appeal on June 7 to the 10th U.S. Circuit Court in Denver. No hearing date has been set at this time.

UN Commission Says ISIS Has Committed Genocide Against Yazidis

Yesterday, the International Commission of Inquiry on the Syrian Arab Republic established by the United Nations Human Rights Council issued a report (press release) concluding that ISIS' actions against the Yazidis constitutes genocide and amounts to crimes against humanity and war crimes. The 41-page report (full text) includes a Summary section which reads in part:

ISIS has sought to destroy the Yazidis through killings; sexual slavery, enslavement, torture and inhuman and degrading treatment and forcible transfer causing serious bodily and mental harm; the infliction of conditions of life that bring about a slow death; the imposition of measures to prevent Yazidi children from being born, including forced conversion of adults, the separation of Yazidi men and women, and mental trauma; and the transfer of Yazidi children from their own families and placing them with ISIS fighters, thereby cutting them off from beliefs and practices of their own religious community, and erasing their identity as Yazidis. The public statements and conduct of ISIS and its fighters clearly demonstrate that ISIS intended to destroy the Yazidis of Sinjar, composing the majority of the world’s Yazidi population, in whole or in part....

While noting States’ obligations under the Genocide Convention, the Commission repeated its call for the Security Council to refer urgently the situation in Syria to the International Criminal Court, or to establish an ad hoc tribunal with relevant geographic and temporal jurisdiction.

AP has more on the report.

In Liberia, Court Orders Sale of Seminary To Satisfy Amounts Owed To Fired President [UPDATED]

All Africa on Wednesday reported on the latest installment in the litigation in Liberia between Dr. Lincoln S. Brownell, the former president of Baptist Theological Seminary, and the Seminary.  Brownell was removed as president in 2007.  In 2013 he brought suit in Liberia's National Labour Court seeking damages for his removal, and the court awarded him $300,000 (US). In 2014, the Labour Court ordered the Seminary shut down, and now the Labour Court has issued a writ of execution on the property of the Seminary so Brownell can obtain the amounts due him under the court award. The writ calls for the sale of the real and personal property of the Seminary to realize the $300,000.  The writ calls for the arrest of the president of the Seminary if property cannot be found.

UPDATE: Front Page Africa (June 19) reported that Liberia's Supreme Court has issued a writ of prohibition preventing the sale of Seminary properties after evidence was introduced that the $300,000 had been paid.  The court immediately sent a team of sheriffs to reopen the Seminary.

Obama Meets At White House With Dalai Lama

President Obama met yesterday in the Map Room of the White House with the Dalai Lama, spiritual head of the Tibetan Buddhists and until his retirement in 2011 head of the exiled Tibetan government.  As reported by CNN, the meeting angered the Chinese who see the Dalai Lama as the head of a separatist movement.  In a statement (full text) issued after the meeting, the White House said:

The President and the Dalai Lama discussed the situation for Tibetans in the People’s Republic of China, and the President emphasized his strong support for the preservation of Tibet’s unique religious, cultural, and linguistic traditions and the equal protection of human rights of Tibetans in China....

... [T]he President reiterated the longstanding U.S. position that Tibet is a part of the People’s Republic of China, and the United States does not support Tibetan independence.  The Dalai Lama stated that he is not seeking independence for Tibet and hopes that dialogue between his representatives and the Chinese government will resume.

Charitable Contributions In Bitcoin?

Last week, the American Institute of Certified Public Accountants submitted a Comment Letter (full text) to the Internal Revenue Service in response to a two-year old IRS Release seeking input on issues relating to virtual currencies (such as Bitcoin). The AICPA said in part:

The AICPA encourages the IRS to release additional, much needed, guidance on virtual currency. Specifically, we request further guidance on the following items: ***

Provide guidance to explain when a donation of virtual currency, valued above $5,000, does not need a qualified appraisal to substantiate a charitable contribution deduction. Additionally, provide guidance on how to document the virtual donation values.

A charitable contribution of property with a value in excess of $5,000 requires a qualified appraisal from a qualified appraiser. An exception exists for contributions of publicly traded stock. The rationale is that the prices of these publicly traded stocks are available on published exchanges, thus not requiring a qualified appraisal. The same is true for most, if not all, types of virtual currency. That is, an exchange publishes the values of this currency on any given day. Therefore, a similar exception should apply for virtual currency donations in excess of a certain amount.

In Nigeria, Christian Students React To Ruling On Hijabs In Schools

Christian students in middle schools and high schools in the Osun State in Nigeria are upset about a June 3 Osun State High Court ruling holding that Muslim women students at the schools have a right to wear the hijab.  According to Tuesday's Premium Times, this is seen by Christian students as a breach of the understanding arrived at in 1975 when the state government took over schools originally founded by Christian missionaries. They see the court's decision as suggesting that wearing a hijab is a means of propagating Islam.  So at the urging of the Christian Association of Nigeria, on Tuesday Christian students showed up at school wearing Christian robes and vestments. Meanwhile, the High Court ruling has been appealed and teachers are attempting to ignore the controversy and continue teaching their classes as usual.

Court Says Suit Over Church Member's Trespassing Ban Should Be Dismissed

In Towns v. Cornerstone Baptist Church, 2016 U.S. Dist. LEXIS 77575 (ED NY, June 13, 2016), a New York federal magistrate judge recommended dismissing with prejudice the third amended complaint in a lawsuit by a long-time member of Cornerstone Baptist Church against the church, its pastor, the New York Police Department and others.  Plaintiff claimed that his rights were violated when, because of a dispute about church governance and programming, he was banned by the church from entering its property.  In a letter the church threatened him with arrest for trespassing if he attempted to enter church property. Among other things, the judge concluded that this was a non-justiciable religious controversy and that there was no joint action between the church and police officials, saying in part:

Although plaintiff has the right to worship how he chooses, Cornerstone's decision to ban him from its property is not a violation of his constitutional rights.

The court also rejected plaintiff's conspiracy and retaliation claims.

9th Circuit Hears Oral Arguments In Pregnancy Center Disclosure Law Challenge

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in  A Woman's Friend Pregnancy Resource Clinic v. Harris. (Video of full oral arguments).  In the case, a California federal district court refused to enjoin the effectiveness of California's Reproductive FACT Act which requires reproductive health clinics to disseminate a notice to all clients stating that California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women. (See prior posting.)

In Israel, Sharia Courts Must Now Display Israeli Flag

In Israel, personal status matters, such as marriage and divorce and in some cases custody and inheritance, are handled by religious courts of the various religious communities. These courts-- Jewish religious courts for the Jewish population, Sharia courts for the Muslim population, as well as Druze and Christian courts-- are part of the state judicial system. I24 reported yesterday that Justice Minister Ayelet Shaked has ordered that Sharia courts must now display Israeli flags and national symbols. Previously they have not done so. Shaked has also taken steps aimed at appointment of the first female as an Israeli Sharia Court judge and member of the selection committee for Muslim religious judges.

Postal Service Issues Eid Postage Stamp

On June 10, the U.S. Postal Service announced the issuance of a new Eid Greetings Forever Stamp, recognizing the Muslim festivals of Eid al-Fitr and Eid al-Adha. The ceremony releasing the postage stamp was held at the Islamic Center of America in Dearborn, Michigan.  A second special ceremony was held on June 13 at the Muhammad Ali Center in Louisville, KY. World Religion News has more on the dedication ceremony and on reactions to the issuance of the stamp during this period of political tension over Muslim immigration.

Obama Counters Trump's Statements On Muslims

President Obama, speaking in Washington yesterday after a meeting with his National Security Council (full text of remarks) responded to claims by Republican presumptive nominee Donald Trump that the President should be using the term "radical Islam" to refer to terrorists, and more broadly to some of Trump's proposals relating to Muslim immigrants:

So there’s no magic to the phrase “radical Islam.”  It’s a political talking point; it's not a strategy.  And the reason I am careful about how I describe this threat has nothing to do with political correctness and everything to do with actually defeating extremism.  Groups like ISIL and al Qaeda want to make this war a war between Islam and America, or between Islam and the West.  They want to claim that they are the true leaders of over a billion Muslims around the world who reject their crazy notions.  They want us to validate them by implying that they speak for those billion-plus people; that they speak for Islam.  That’s their propaganda.  That's how they recruit.  And if we fall into the trap of painting all Muslims with a broad brush and imply that we are at war with an entire religion -- then we’re doing the terrorists' work for them....

... We now have proposals from the presumptive Republican nominee for President of the United States to bar all Muslims from emigrating to America.  We hear language that singles out immigrants and suggests that entire religious communities are complicit in violence.  Where does this stop?... 

Are we going to start treating all Muslim Americans differently?  Are we going to start subjecting them to special surveillance?  Are we going to start discriminating against them because of their faith?  We’ve heard these suggestions during the course of this campaign.  Do Republican officials actually agree with this?  Because that's not the America we want.  It doesn't reflect our democratic ideals.  It won’t make us more safe; it will make us less safe -- fueling ISIL’s notion that the West hates Muslims, making young Muslims in this country and around the world feel like no matter what they do, they're going to be under suspicion and under attack.  It makes Muslim Americans feel like they're government is betraying them.  It betrays the very values America stands for.

We've gone through moments in our history before when we acted out of fear -- and we came to regret it.  We've seen our government mistreat our fellow citizens.  And it has been a shameful part of our history.

Challenge To Sunday Exception In Property Maintenance Law Rejected

In State of Ohio v. McKinley, (OH App., June 9, 2016), defendant appealed his convictions for violating Youngstown, Ohio's Property Maintenance Code which requires that commercial building demolition projects once begun, continue daily until finished (excluding holidays, Sundays, and inclement weather days). Defendant's attempt to demolish a hospital building had not been completed after two-and-one-half years. Among the assignments of error rejected by an Ohio appellate court was defendant's claim that the statute, by allowing an exception for Sunday in assessing whether demolition work has continued, but not for other religions' days of rest, infringes defendant's free exercise rights. According to the court:

Appellant has failed to show how he has been injured by the exception to working on Sundays in the ordinance. Thus, he does not have standing to assert either a free exercise or establishment claim. 

9th Circuit Rejects RFRA Defense Raised By Hawaii Cannabis Ministers

In United States v. Christie, (9th Cir., June 14, 2016), the U.S. 9th Circuit Court of Appeals upheld the convictions of the founder of the Hawaii Cannabis Ministry and his wife on charges of conspiracy to manufacture and distribute marijuana.  The court rejected defendants' claim that their convictions violate their rights under the Religious Freedom Restoration Act.  The court held that the government had a compelling interest in mitigating the risk that cannabis from the Ministry would be diverted to recreational users, and that the government achieved that compelling interest in the least restrictive manner. The court said in part:

there is specific evidence that the Ministry’s distribution methods created a realistic possibility that cannabis intended for members of the Ministry would be distributed instead to outsiders who were merely feigning membership in the Ministry and adherence to its religious tenets. Additionally, the government’s interest in this case is all the more compelling given the Ministry’s well-publicized willingness to extend membership in the Ministry (with all that that entails) to minors.

Courthouse News Service reports on the decision.

Trump Reacts To Orlando Attack In Speech Focusing On Immigration

Yesterday Republican presumptive Presidential nominee Donald Trump delivered a controversial speech (full text) in reaction to the June 12 killing of 49 people at a night club in Orlando, Florida. Focusing on immigration, Trump said in part:

We cannot continue to allow thousands upon thousands of people to pour into our country, many of whom have the same thought process as this savage killer.

Many of the principles of Radical Islam are incompatible with Western values and institutions.

Radical Islam is anti-woman, anti-gay and anti-American.

I refuse to allow America to become a place where gay people, Christian people, and Jewish people, are the targets of persecution and intimidation by Radical Islamic preachers of hate and violence.

Here is part of the New York Times coverage:

Without distinguishing between mainstream Muslims and Islamist terrorists, Mr. Trump suggested that all Muslim immigrants posed potential threats to America’s security and called for a ban on migrants from any part of the world with “a proven history of terrorism” against the United States or its allies. He also insinuated that American Muslims were all but complicit in acts of domestic terrorism for failing to report attacks in advance, asserting without evidence that they had warnings of shootings like the one in Orlando.

Mr. Trump’s speech, delivered at St. Anselm College in Manchester, N.H., represented an extraordinary break from the longstanding rhetorical norms of American presidential nominees. But if his language more closely resembled a European nationalist’s than a mainstream Republican’s, he was wagering that voters are stirred more by their fears of Islamic terrorism than any concerns they may have about his flouting traditions of tolerance and respect for religious diversity.

Amish Man Wins Exemption From State Building Code

A Michigan state trial court judge has held that a member of the Old Order Amish is entitled to an exemption from the Michigan Residential Building Code.  According to the Sault St. Marie News, in a June 6 opinion visiting Judge Harold Johnson sitting in the 50th District Court held that denial of the exemption would violate both the Fair Housing Act and the Religious Land Use and Institutionalized Persons Act. Amish defendant William Miller objected on religious grounds to requirements for electric and plumbing systems, indoor bathrooms, modernized kitchens and electronic devices such as smoke alarms and carbon monoxide detectors.

Bahrain Prohibits All Political Activity By Religious Leaders

Gulf News and Middle East Confidential report that on Saturday Bahrain's King Hamad Bin Eisa Al Khalifa promulgated amendments to the 2005 Political Society Law.  That law banned political societies with religious agendas and and banned the use of religious organizations to promote political ideas.  It also prohibited judges, diplomats and security and military personnel from joining any political society. Saturday's amendments, endorsed by parliament last month, however, go farther. They prohibit any religious figure who delivers sermons from being a member of a political society or engaging in political activities. Critics say the amendments are aimed at restricting the activities of the Shia population that have been protesting against the government and calling for structural political reforms. Justice Minister Shaikh Khalid Bin Ali Al Khalifa said that places of worship have been exploited for political purposes.

Recent Articles of Interest

From SSRN:

• Petr Agha, The Burqa Ban's Dark Side – Uncovering Face Covering Bans, (June 1, 2016).
• Andrew Koppelman, A Free Speech Response to the Gay Rights/Religious Liberty Conflict, (Northwestern University Law Review, Forthcoming).
• M. Christian Green, Apostasy Through Doubt and Dissent, (Forthcoming in the Journal of Law and Religion, July 2016).
• M. Christian Green, 'Graceful Pillars': Law, Religion, and the Ethics of the 'Daughter Track', (Forthcoming in the Journal of Law and Religion, July 2016).
• Rex Ahdar, Companies as Religious Liberty Claimants, (Oxford Journal of Law and Religion, 2016).
• Marc O. DeGirolami, Substantial Burdens Imply Central Beliefs, (St. John's School of Law Legal Studies Research Paper Series, 16-0014 (2016)).
• M. Christian Green, Jean Bethke Elshtain, (Christianity and Family Law, Chapter 24, Forthcoming).
• Debbie Kaminer, Religious Accommodation in the Workplace: Why Federal Courts Fail to Provide Meaningful Protection of Religious Employees, (Texas Review of Law & Politics, Vol. 20, No. 107, 2015).
• Robert W. McGee, Toilets, Transgenders, and Property Rights, (June 9, 2016).
• Suneal Bedi, Fully and Barely Clothed: Case Studies in Gender and Religious Employment Discrimination in the Wake of Citizens United and Hobby Lobby, (Hastings Business Law Journal, Vol. 12, No. 2, 2016).
• Rex Ahdar, Charity Begins at the Politically Correct Home? The Family First Case, (Otago Law Review (2015) 14(1) 171-189).

From SmartCILP:

• Neil Hamilton, Madeleine Coulter & Marie Coulter, Professional Formation/Professionalism's Foundation: Engaging Each Student's and Lawyer's Tradition on the Question "What Are My Responsibilities to Others?" 12 University of  St. Thomas Law Journal 271-338 (2016).
• Brett R. McCaw, Pro Deo et Patria: The Greek Catholic Church and Ukrainian National Life--Past and Present. 9 University of St. Thomas Journal of Law & Public Policy 94-124 (2014).
• Kent Greenawalt, McElroy Lecture. Granting Exemptions from Legal Duties: When Are They Warranted and What Is the Place of Religion?, 93 University of Detroit Mercy Law Review 89-117 (2016).
• Mark Strasser, Free Exercise and the Definition of Religion: Confusion in the Federal Courts, 53 Houston Law Review 909-937 (2016).
• Symposium: Human Rights and the Sexualization of Culture, 2 Journal of Global Justice & Public Policy 173-258 (2015).
• The Morality of Market Mechanisms. Leslie Carothers, moderator; Lucia Ann Silecchia, Bob Perciasepe, Caroline Farrell, participants. [Abstract], 46 Environmental Law Reporter News & Analysis 10005-10016 (2016).

Ohio School District Sues Feds Over Accommodation For A Transgender Student

A lawsuit was filed today in federal district court by an Ohio school district challenging the Justice Department and Department of Education's interpretation of Title IX as it applies to transgender students.  Unlike the broad-ranging lawsuit filed last month by eleven states challenging the same interpretation, today's suit focuses on accommodation, inconsistent with the new federal guidelines, already made by one school for a transgender student. The student began transitioning from male to female identity between kindergarten and first grade. The school allows the student to use single use staff restrooms, and encourages others students in the class to do likewise. The student's legal custodian has complained, and the Department of Education has investigated and proposed that the school change its policy to allow the transgender student to use sex-specific facilities. The complaint (full text) in Board of Education of the Highland Local School District v. U.S. Department of Justice, (SD OH, file 6/10/2016), says:

Highland has acceded, and will continue to accede, to the requests of Student A’s legal custodian to respect Student A’s gender-identity choice by not interfering with Student A’s current gender expression. But Highland will not accede to requests that adversely impact the dignity, privacy, safety, well-being, or rights of other students.

If the government were to deny federal funding because of a violation of Title IX, this would cost the school district $1.12 million. ADF issued a press release announcing the filing or the lawsuit.

Court Denies Preliminary Injunction To Require Inclusion of Parochial Schools In Voucher Program

According to the Denver Post, a Colorado federal district court in a ruling from the bench  yesterday refused to issue a preliminary injunction to require the Douglas County (Colorado) School District to include religiously affiliated schools in its School Choice Grant Program.  The court held that it was unclear that plaintiffs would ultimately succeed on the merits of their claim that excluding sectarian schools from the voucher program amounts to government hostility toward religion. At any rate, plaintiffs had not shown irreparable harm since plaintiffs could always seek monetary damages if they ultimately prevail. Also no schools had yet agreed to participate in the grant program. Private religious schools were excluded from the grant program after the Colorado Supreme Court last year struck down an earlier school choice program adopted by the county which included religious schools. (See prior related posting.)