Driver's License Name Challenge Dismissed

In Bey v. State of Ohio, Bureau of Motor Vehicles, (OH App., Feb. 3, 2017), an Ohio state appellate court dismissed as moot a mandamus lawsuit by a member of The Moorish Science Temple of America challenging the refusal by the Bureau of Motor Vehicles to issue him a driver's license with the suffix "Bey" added at the end of his birth name.  After plaintiff filed suit, the state issued him the driver's license.  In an attempt to avoid mootness, plaintiff sought to amend his complaint to seek a class action against all Ohio governmental agencies that impede the free exercise of nationality and religious freedom by Moorish Science members in the state. However the appeals court relied on the doctrine that a writ of mandamus will not issue to compel an act already performed.

8th Circuit Upholds Solicitation Ban At Revenue Offices

In Brown v. Arkansas Department of Administration, (8th Cir., Feb. 3, 2017), the U.S. 8th Circuit Court of Appeals affirmed the dismissal of a suit brought by a Rastafarian minister challenging a no-solicitation policy at certain state Revenue Offices.  The ban prevented the minister from continuing to setup a table on the lawn of a revenue office to seek signatures for a ballot initiative on the Arkansas Medical Cannabis Act. (See prior posting.)  The appeals court held that the private property immediately surrounding the revenue office was a nonpublic forum, that the ban was reasonably related to the State’s interest in running revenue offices, and was viewpoint neutral.

RFRA Challenge To Dakota Access Pipeline Filed

As previously reported, last month President Trump issued a Presidential Memorandum directing the Secretary of the Army to expedite approval of construction of the controversial Dakota Access Pipeline (DAPL). A federal district court had previously denied the Standing Rock Sioux Tribe an injunction against the pipeline. (See prior posting.) As reported by Jurist, yesterday the Cheyenne River Sioux Tribe which had already intervened as a plaintiff in the challenge to the pipeline filed three motions in the case. First it asked to be allowed to file an amended complaint adding a Religious Freedom Restoration Act claim. (Full text of motion.) It then filed a motion (full text and supporting memorandum ) seeking a preliminary injunction, and a separate motion seeking a temporary restraining order (full text and supporting memorandum) directing the Army Corps of Engineers to withdraw the easement/right-of-way issued on February 8 that permits drilling under federally-owned lands under and surrounding Lake Oahe, explaining:

The Lakota people believe that the mere existence of a crude oil pipeline under the waters of Lake Oahe will desecrate those waters and render them unsuitable for use in their religious sacraments.

Suit Challenges Treatment of Hinduism In California School Curriculum

Suit was filed this week in a California federal district court challenging on 1st and 14th Amendment grounds the treatment of Hinduism in the California public school curriculum.  The complaint (full text) in California Parents for the Equalization of Educational Materials v. Torlakson, (N CA, filed 2/8/2017), contends:

Defendants have adopted and are implementing content standards and a curriculum framework that are the foundation of the history-social science education provided to all California public school students. The content standards, adopted by the State Board of Education (SBE) in 1998, explain the teachings of major world religions, their virtues and central figures, and the belief of adherents in the divine origins of their faiths. This is true for all religions covered except Hinduism, which is not portrayed as virtuous, does not include mention of religious figures, and is described as an “intellectual tradition” without reference to a belief in divine origins....

East Bay Times reports on the lawsuit. [Thanks to Glenn Katon for the lead.]

Community Room Policy Excluding Worship Held Unconstitutional

In His Healing Hands Church v. Lansing Housing Commission, (WD MI, Feb. 8, 2017), a Michigan federal district court held unconstitutional a Housing Commission policy that allows outside groups to use community rooms in housing projects, except for religious purposes, worship, or activities.  The court concluded that "the Housing Commission’s policy constitutes impermissible viewpoint discrimination."

UPDATE: An ADF press release points out that this decision makes permanent a preliminary injunction issued in the case last year.

10th Circuit Denies En Banc Rehearing In 10 Commandments Case, With Dissent

In Felix v. City of Bloomfield, (10th Cir., Feb. 6, 2017), the U.S. 10th Circuit Court of Appeals denied an en banc rehearing in a case in which the 3-judge panel found that a Ten Commandments monument on a city hall lawn violates the Establishment Clause. (See prior posting.) Judge Kelly, joined by Judge Tymkovich, dissented from the denial of a rehearing in an opinion in which they argue for a dramatic re-examination of Establishment clause jurisprudence, saying in part:

This decision continues the error of our Establishment Clause cases. It does not align with the historical understanding of an “establishment of religion” and thus with what the First Amendment actually prohibits.

After an extensive examination of the history of the Establishment Clause, they say:

[T]he public display of memorials with historical significance should generally not be construed as an “establishment of religion,” even if one of the monuments also happens to be religious in nature.

Fired Doctor Settles Suit Against Georgia Health Department [Corrected]

In a press release yesterday, First Liberty announced that a settlement has been reached in Walsh v. Georgia Department of Public Health.  In the case, a doctor and public health expert who was dismissed from his position with the Georgia Department of Public Health within two weeks of his hiring claimed that he was terminated because of the content of sermons he had given as a Seventh Day Adventist lay minister. (See prior posting). The settlement agreement (full text) provides for the payment of $225,000 to plaintiff's lawyers.  I am informed by plaintiff's lawyers that the checks were deposited in an attorney trust account to be disbursed from there to the client, and that the majority of the settlement amount went to the client.  [An earlier version of this posting incorrectly concluded that the payment was entirely for attorneys' fees.] Atlanta Journal Constitution reports on developments.

9th Circuit Upholds TRO Against Trump's Travel Ban On Due Process Grounds; Postpones Ruling On Religious Discrimination Issue

The U.S.9th Circuit Court of Appeals today, in a unanimous decision, refused to stay the Washington federal district court's temporary restraining order against enforcement of President Trump's Executive Order titled "Protecting the Nation From Foreign Terrorist Entry Into the United States." The opinion in State of Washington v. Trump, (9th Cir., Feb. 9, 2017), concludes that the government "has failed to establish that it will likely succeed on its due process argument in this appeal."  The court put off addressing plaintiffs' religious discrimination arguments, saying:

The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims. See, e.g., Church of the Lukumi Babalu Aye,Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. . . . Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”); Larson, 456 U.S. at 254-55 (holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-68 (1977) (explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decision makers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose).

The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.

British Lottery Approves Grants To Deal with Bats In Churches

With the U.S. Supreme Court still scheduled this term to hear the Trinity Lutheran case on government grants to religious institutions, this story from Britain presents an interesting comparative law example.  Britain's Heritage Lottery Fund distributes a share of the income from the National Lottery to projects for preserving and making accessible Britain's heritage. Yesterday the Fund announced a large 5-year grant for a "Bats In Churches" project, explaining in part:

The UK has internationally important populations of bats which are at risk due to decreases in precious woodland habitats. Churches offer alternative sanctuaries for maternity roosts and hibernation. However, bats in churches can cause serious problems as bat droppings can restrict activities, damage historic artifacts and put a strain on the volunteers who look after the buildings.

Thanks to input from skilled professionals who will work with volunteers, solutions to these problems will be shared with hundreds of churches.

[Thanks to Law & Religion UK for the lead.]

Court Upholds Denial of Football Stadium Loudspeakers For Prayer

In Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc., (MD FL, Feb. 3, 2017), a Florida federal magistrate judge recommended dismissing a suit brought by a Christian high school complaining that it was denied permission to use the stadium loudspeaker system to deliver a prayer at the Championship Game in which its football team was playing.  The opinion finds that mere denial of loudspeaker access did not amount to a free exercise violation, saying in part:

Nowhere ... is there a single allegation that Cambridge Christian or any of its members were deprived of their right to pray at the Championship Game. On the contrary, both Cambridge Christian’s team and the opposing team were permitted to pray together at the most centrally focused and public area of the Stadium—the 50-yard line.... There are no allegations that Cambridge Christian was prohibited from passing out flyers with pre-printed prayers or that the cheerleaders were prohibited from holding up large signs spelling out prayers for those in the stands to say in concert with the team.

The opinion also rejected free speech and Establishment Clause claims. WUSF reports on the decision.

Class Acton Lawsuit Filed Against Travel Ban

On Tuesday, another lawsuit was filed challenging President Trump's so-called travel ban Executive Order.  This suit was brought on behalf of two refugee agencies-- International Refugee Assistance Project and HIAS--and by several individuals.  The complaint (full text) in International Refugee Assistance Project v. Trump, (D MD, filed 2/7/2017) asks a Maryland federal district court to certify the suit as a class action on behalf of all persons in the United States for whom the Executive Order interferes with family reunification or with the ability to travel internationally and return to the U.S.  The complaint includes claims based on the Establishment Clause, Equal Protection Clause and Religious Freedom Restoration Act, among others, and contends:

President Trump has repeatedly made clear his intent to enact policies that exclude Muslims from entering the United States and favor Christians seeking to enter the United States.

HIAS issued a press release announcing the filing of the lawsuit.

Ohio City Enacts Broad Conversion Therapy Ban

According to the Toledo Blade, Toledo, Ohio City Council on Tuesday passed a broad ban on conversion therapy-- therapy aimed at changing a person's sexual orientation or gender identity.  Unlike most bans elsewhere, Toledo's ordinance is not limited to protecting minors. The new law provides:

no mental health provider shall engage in sexual orientation or gender identity change efforts with any person.

The ordinance provides for a fine of $250 for each violation. According to Toledo City Paper, the new ordinance passed City Council by a vote of 12-0.

Dakota Pipeline Will Move Ahead Despite Native American Objections

Washington Post reports that in a court filing yesterday the U.S. Army said that it will grant developers a 30-year easement under North Dakota’s Lake Oahe.  This is the final permit needed to complete the Dakota Access Pipeline. The Pipeline runs near the Standing Rock Sioux Reservation.  Tribal members claim that the Pipeline construction will destroy sacred ancestral Tribal lands. (See prior posting.) The Army is also terminating its plan to prepare an environmental impact statement on the Pipeline. Today's actions were authorized by a Presidential Memorandum issued by Donald Trump last month. (See prior posting.) Demonstrations and court challenges to the Army's decision are expected.

Barber Shop That Refused Transgender Customer on Religious Grounds Settles

In a press release issued last week, Lambda Legal announced it had reached a settlement with a California barber shop that had refused to cut the hair of a transgender man because the owner perceived the customer to be a female. The owner later told reporters that he had religious objections to cutting women's hair, saying that God made a clear distinction between genders and "it’s a shame for a man to have long hair, but if a woman has long hair, it’s her glory." The stipulated final judgement (full text) in Oliver v. The Barbershop R.C., Inc., (CA Super. Ct., Jan. 19, 2017), recites that defendants violated California's Unruh Civil Rights Act and enjoins them from discriminating on the basis of sex, including on the basis of actual or perceived gender, gender identity or gender expression.

5th Circuit Hears Oral Arguments On School Board Invocations

The U.S. 5th Circuit Court of Appeals yesterday heard oral arguments (audio of arguments) in American Humanist Association v. Birdville Independent School District.  Last August federal district court for the Northern District of Texas (full text of opinion) held that case law permitting legislative prayer applies to invocations at school board meetings.  The practice of the Board, in its latest iteration, involved selecting students at random to make a presentation at each board meeting.  American Humanist Association issued a press release on the oral arguments.

4th Circuit: No Title VII Claim Where Employee Failed To Follow Leave Procedures

In Abeles v. Metropolitan Washington Airports Authority, (4th Cir., Jan. 26, 2017), the U.S. 4th Circuit Court of Appeals rejected a religious discrimination claim by an Orthodox Jewish Airports Authority employee who was suspended for five days for taking off work for the last two days of Passover.  The employee gave only informal notice of her intention to take off those days and did not comply with the formal leave request procedure.  The court, responding to plaintiff's argument that under Title VII she should have been granted religious accommodation, said in part:

[N]o conflict existed between Plaintiff observing religious holidays and following MWAA’s neutral rules requiring advance approval of leave following specified procedures. Nor could she establish such a conflict. The Leave Policy merely requires employees to request leave by form or email, and obtain advance approval.

The court also rejected plaintiff's disparate treatment argument.  Discussion of the decision from plaintiff's perspective is provided by a Huffington Post contributor.

Bible-Based Daycare Denied Property Tax Exemption

In Hamilton County Assessor v. Duke, (IN Tax Ct., Feb. 3, 2017), the Indiana Tax Court denied a property tax exemption to the owner of property in which Little Lamb Daycare, a for-profit daycare that offers a Bible-based curriculum, operates.  The court found that the failure to provide a comparison of the amount of time the property was used for exempt purposes in relation to the overall time it was used for all purposes prevents the granting of either an educational use or a religious use exemption. Indiana Lawyer reports on the decision.

More Primary Source Material On Travel Ban Challenge-- Briefs Are In; Oral Arguments Tomorrow

A flurry of filings have been submitted to the U.S. 9th Circuit Court of Appeals in the U.S. government's attempt to obtain a stay of the temporary restraining order against enforcement of much of President Trump's immigration and refugee executive order. Both sides have filed memoranda supporting their positions.  In addition, eight amicus briefs have been filed.  Links to all the filings are available on the 9th Circuit's website. The court will hear oral arguments by telephone on Tuesday, February 7, 2017 at 3:00 p.m. PST and will promptly make recordings publicly available. New York Times reports on developments.

Recent Articles of Interest

From SSRN:

• Gary S. Gildin, A Blessing in Disguise: Protecting Minority Faiths Through State Religious Freedom Non-Restoration Acts, (23 Harv. J. L. & Pub. Pol'y 411 (2017)).
• Eduardo M. Penalver, Carbon Trading and the Morality of Markets in Laudato Si, (Cornell Legal Studies Research Paper No. 17-3 (2017)).
• Tony Sax, Rethinking Legislative Prayer after Town of Greece: How Ceremonial Deism Would Include More and Exclude Less, (2016).
• Jeroen Temperman, Freedom of Religion or Belief in Prison, (Oxford Journal of Law and Religion (2017)).
• Sherally K. Munshi, Race, Geography, and Mobility, (Georgetown Immigration Law Review, Vol. 30, No. 245, 2016).
• Timothy Lubin, The Theory and Practice of Property in Premodern South Asia: Disparities and Convergences, (Journal of the Economic and Social History of the Orient, Forthcoming).
• Santiago Legarre, Natural Law in Judaism Revisited, (82 Prudentia Iuris 239 (2016)).
• Eloisa C. Rodriguez-Dod,  Aileen M. Marty & Elana Marty-Nelson, Tears in Heaven: Religiously and Culturally Sensitive Laws for Preventing the Next Pandemic, (66 Cath. U. L. Rev. 117 (2017)).
• Brett G. Scharffs, Why Religious Freedom? Why the Religiously Committed, the Religiously Indifferent and Those Hostile to Religion Should Care, (BYU Law Research Paper No. 17-01 (2017)).
• Richard Traunmüller & Marc Helbling, Public Opinion Backlash to Liberal Policy: The Case of Muslim Political Rights in the UK, (January 26, 2017).

From SSRN (Tax and Non-Profits):

• James Patrick Huston, Pauper's Parity: Taking Away the Fine Print of 'Your Contribution is Tax-Deductible', (2016).
• Adam Chodorow, The Parsonage Exemption, (January 28, 2017).
• Samuel D. Brunson & David Herzig, A Diachronic Approach to Bob Jones: Religious Tax Exemptions after Obergefell, (Indiana Law Journal, Forthcoming).

From SmartCILP:

• Ivan E. Bodensteiner, Not Surprisingly, A Crucifix Conveys a Religious Message, 49 Valparaiso University Law Review 897-906 (2015).
• Robert M. Jarvis, The Story of the Gary, Indiana Crucifix, 49 Valparaiso University Law Review 873-896 (2015).
• Jessica L. Roberts, An Alternative Theory of Burwell v. Hobby Lobby, 22 Connecticut Insurance Law Journal 85-120 (2016).

Hawaii Sues Trump Over Travel Ban

Last Friday, the state of Hawaii filed a lawsuit against President Donald Trump challenging his Executive Order imposing a travel ban on individuals from seven Muslim countries and imposing a moratorium on refugee admissions. The complaint and Memorandum in Support (full text of press release, complaint and Memorandum in support of TRO) in State of Hawai'i v. Trump, (D HI, filed 2/3/2017) particularly emphasize Establishment Clause concerns with the Executive Order. Plaintiff's Memorandum in Support states in part:

The President and his aides have made it abundantly clear that they intend to exclude individuals of the Muslim faith, and that this Order—which bans travel only with respect to certain Muslim-majority countries—is part of that plan....  Sections 5(b) and 5(e) also explicitly direct the government to prioritize religious refugee claims if the “religion of the individual is a minority religion in the individual’s country”—a system of religious preference that President Trump told the media was expressly designed to favor Christians....

In the Establishment Clause context, these statements matter. Because Lemon’s first step is concerned with “whether [the] government’s actual purpose is to endorse or disapprove of religion,” courts routinely look to the public declarations of an act’s originator to discern its true aim.

West Hawaii Today reports on the lawsuit.

Recent Prisoner Free Exercise Cases

In Beamon v. Pollard, 2017 U.S. Dist. LEXIS 12446 (ED WI, Jam. 30, 2017), a Wisconsin federal magistrate judge dismissed an inmate's challenge to the confiscation from his cell of materials believed to relate to Nation of Gods and Earths.

In Iceberg v. Martin, 2017 U.S. Dist. LEXIS 12557 (WD WA, Jan. 27, 2017), a Washington federal district court dismissed a religious discrimination complaint by a Christian Science inmate who contended that he received no response to his request to obtain rehabilitation services without meeting with a psychologist because psychology and psychiatry are inconsistent with his religious beliefs.

In Leggett v. Solomon, 2017 U.S. Dist. LEXIS 12958 (ED NC, Jan. 31, 2017), a North Carolina federal district court dismissed a suit by a former inmate who complained that during Ramadan he was not provided a supplemental meal bag because he was on a special diet for medical reasons.

In Hines v. Illinois Department of Corrections, 2017 U.S. Dist. LEXIS 13173 (SD IL, Jan. 31, 2017), an Illinois federal district court allowed a Muslim inmate to move ahead with certain of his claims regarding denial of a halal diet when the lacto-ovo diet created health problems for him.

In Ali v. Drawbridge, 2017 U.S. Dist. LEXIS 12039 (WD OK, Jan. 30, 2017), an Oklahoma federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 183126, Dec. 22, 2016) and dismissed a Muslim inmate's claim that he was denied a halal diet for a one month period and his complaint that he was not allowed to possess the "Noble Quran" version of the Islamic scripture-- (his copy was confiscated).

In Greybuffalo v. Litscher, 2017 U.S. Dist. LEXIS 13691 (WD WI, Feb. 1, 2017), a Wisconsin federal district court dismissed for failure to exhaust administrative remedies a Native American Church inmate's complaint that his request for a separate sweat lodge ceremony conducted according to Church principles was denied.

In Hoffmann v. Growden, 2017 U.S. Dist. LEXIS 14139 (ED CA, Jan. 31, 2017), a California federal magistrate judge dismissed with leave to amend plaintiff's claim that during three days during which he was wrongly held in jail he was denied a religious diet.

In Collier v. Kernan, 2017 U.S. Dist. LEXIS 14141 (ED CA, Feb. 1, 2017), a California federal magistrate judge recommended dismissing a Muslim inmate's claim that denial of conjugal visits infringes his free exercise rights and his right to marry.

In Hall v. Klemm, 2017 U.S. Dist. LEXIS 14767 (WD PA, Feb. 1, 2017), a Pennsylvania federal magistrate judge recommended that plaintiff be granted summary judgement as to defendants' liability for denying him a diet consistent with his Native American religious tradition, including his claim for compensatory damages.

California Inmates May Have Another Route To Relief For Free Exercise Infringements

In Hauseur v. Clark, (ED CA, Jan. 31, 2017), a California federal district court may have opened a new route for state prisoners in California to obtain damages or equitable relief for free exercise infringements.  California's Bane Act (Civil Code Sec. 52.1) allows anyone whose rights under the Constitution or laws of the United States or of California have been interfered with through threat, intimidation, or coercion to bring an action for damages and/or injunctive relief. The statute goes on to provide:

(j) Speech alone is not sufficient to support an action ... except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat.

In this case, brought by a California inmate who complained about the standards for kosher meals he received and about the failure to provide Jewish religious services on many occasions, a federal magistrate judge had held that plaintiff had not stated a claim because he did not allege violence or the threat of violence. Rejecting that portion of the magistrate's recommendation, the district court judge in this case held:

An allegation of either violence or the threat of violence is only necessary if the alleged violations of the Bane Act are based entirely on speech.... [Here] plaintiff stated a cognizable retaliation claim because he alleged the defendants threatened to use their authority to purposefully continue to violate his free exercise rights if he did not withdraw his administrative appeals.... Following this threat and plaintiff’s decision not to withdraw his appeal, defendants allegedly did inhibit plaintiff’s ability to engage in the free exercise of religion.... As alleged, these actions constitute threats and coercion and are sufficient to state a cognizable Bane Act claim.

Former NYPD Officer Sues Over Anti-Muslim Discrimination

A suit was filed last week in a New York federal district court by a former NYPD officer. Plaintiff, a Muslim, claims she suffered retaliation and a hostile work environment when she began to wear a hijab while on duty.  The complaint (full text) in Alamrani v. City of New York, (SD NY, filed 2/2/2017),  alleges in part:

From 2009 until 2012, Plaintiff Alamrani was ... constantly assigned to posts which do not allow her to earn overtime and was called discriminatory names on a daily basis like terrorist and Taliban. Also on a daily basis she would be told that she should not be a police officer, that she should not be allowed to wear the Hijab, that nobody wanted to work with her, that she was a disgrace to the NYPD and that nobody liked her along with other deriding comments.

In late 2012, fellow-officers tried to rip her hijab off her head. In subsequent years she was limited to working the night shift, and other retaliatory actions allegedly occurred. The suit claims violations of Title VII as well as of New York City and New York state law.  The Gothamist reports on the lawsuit.

Canadian Court Convicts 2 FLDS Members For Bringing Daughter To US To Marry Church Leader

As reported by the Toronto Sun, a British Columbia (Canada) trial court has found that FLDS member Brandon James Blackmore, assisted by Gail Blackmore, transported the couple's 13-year old daughter from Canada to the United States to facilitate her marriage to Warren Steed Jeffs, then the Prophet and President of the FLDS Church. In Regina v. Blackmore, (BC Sup. Ct., Feb. 3, 2017), the court after making extensive findings concluded that the two are guilty, but acquitted a third defendant-- James Oler-- on charges relating to his daughter.

Second Major Leader of SNAP Resigns

RNS reports that Barbara Blaine, founder of the advocacy group Survivors Network of those Abused by Priests (SNAP), resigned effective yesterday.  This is the second major departure from the organization in recent weeks.  In late January it was announced that long-time Executive Director of SNAP,  David Clohessy, had left his position with the organization in December.  Both Blaine and Clohessy deny that their departures are related to a lawsuit filed against SNAP in January.  The suit alleges that the organization exploits survivors by referring them to attorneys from whom SNAP receives kickbacks. (See prior posting.)

Washington Federal District Court Issues TRO Against Travel Ban; Appeal Filed-- Here Are Links To Primary Sources [UPDATED]

As widely reported, a Washington federal district court yesterday issued a nation-wide temporary restraining order against key portions of President Trump's Executive Order that temporarily banned entry of individuals from seven Muslim-majority countries and restricted entry of refugees, particularly those from Syria. (See prior posting.) The temporary restraining order (full text) in State of Washington v. Trump, (WD WA, Feb. 3, 2017), does not set out which of plaintiffs' arguments were persuasive to the court.  Those arguments, as set out in the complaint (full text), include establishment clause, due process and equal protection claims as well as statutory claims. Washington's Attorney General has provided links to all documents in the case. The court has posted a video of the full oral arguments and judge's ruling in the case.  Americans United filed an amicus brief (full text) with the district court setting out at length the Establishment Clause arguments. As reported by The Hill, this evening the Justice Department filed a notice of appeal (full text) in the case with the 9th Circuit. According to CNN, focusing on the court's designation of the motions panel for February:

The three judges who will likely hear the appeal -- assuming no one has to step aside over any conflicts -- are: Judge William Canby, who was appointed by President Jimmy Carter; Richard Clifton, who was appointed by Bush; and Michelle Friedland, a President Barack Obama appointee.

UPDATE: On Saturday night (2/4) the 9th Circuit denied an immediate stay of the district court opinion pending briefing by Monday on the emergency motion. (Full text of 9th Circuit's order). The order was issued by Judges Canby and Friedland.

UPDATE2: Also on Feb. 3, a Massachusetts federal district court refused to renew a temporary restraining order that had prevented detention and/or removal of individuals with approved refugee applications who would be legally admitted to the United States in absence of President Trump's Executive Order. The original TRO expired Feb. 5.  The court in Louhghalam v. Trump, (D MA, Feb. 3, 2017) held that rational basis review applies to equal protection challenges to federal government categorizations with respect to non-resident aliens.  It held that plaintiffs raising establishment clause objections lacked standing to do so.  It added:

Moreover, the language in Section 5 of the EO is neutral with respect to religion. Plaintiffs submit in their amended complaint that Section 5 favors Muslims over Christians, in violation of the Establishment Clause. The provisions of Section 5, however, could be invoked to give preferred refugee status to a Muslim individual in a country that is predominately Christian. Nothing in Section 5 compels a finding that Christians are preferred to any other group.

ACLU has links to all the pleadings in the Louhghalam case.

Draft Executive Order Would Expand Free Exercise Protections

The Nation reported yesterday on a leaked copy of a draft Executive Order on Religious Freedom which is currently being circulated by the White House, saying:

The draft order seeks to create wholesale exemptions for people and organizations who claim religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity, and it seeks to curtail women’s access to contraception and abortion through the Affordable Care Act. 

The draft titled Establishing a Government-Wide Initiative to Respect Religious Freedom is set out in full in The Nation report.  The Order provides in part:

“Religious organization” shall be construed broadly to encompass any organization, including closely held for-profit corporations, operated for a religious purpose, even if its purpose is not exclusively religious, and is not limited to houses of worship or tax-exempt organizations, or organizations controlled by or associated with a house of worship or a convention or association of churches.

Sec. 3 Religious Freedom Principles and Policymaking Criteria. All executive branch departments and agencies (“agencies”) shall, to the greatest extent practicable and permitted by law, adhere to the following principles and criteria when formulating and implementing regulations, actions, or policies:

(a) Religious freedom is not confined to religious organizations or limited to religious exercise that takes place in houses of worship or the home. It is guaranteed to persons of all faiths and extends to all activities of life.

(b) Persons and organizations do not forfeit their religious freedom when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts: or otherwise participating in the marketplace, the public square, or interfacing with Federal, State or local governments....

Trump At National Prayer Breakfast Again Promises Johnson Amendment Repeal

President Donald Trump spoke yesterday at the National Prayer Breakfast. (Full text of remarks.)  In a wide-ranging speech, he reiterated his campaign promise to repeal the Johnson Amendment that restricts non-profits from participating in partisan election campaigns, saying in part:

It was the great Thomas Jefferson who said, “The God who gave us life, gave us liberty.”  Jefferson asked, “Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?”

Among those freedoms is the right to worship according to our own beliefs.  That is why I will get rid of, and totally destroy, the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.  I will do that -- remember.

Not all religious groups favor repeal of the tax code ban on electioneering.  Responding to Trump's remarks, the Baptist Joint Committee issued a press release, saying in part:

Politicizing churches does them no favors. The promised repeal is an attack on the integrity of both our charitable organizations and campaign finance system.

Inviting churches to intervene in campaigns with tax-deductible offerings would fundamentally change our houses of worship. It would usher our partisan divisions into the pews and harm the church’s ability to provide refuge.

Trump Travel Ban Will Not Apply To Israelis Born in Covered Nations

A refinement was announced yesterday to President Trump's Executive Order on entry into the U.S. of nationals of seven Muslim-majority countries.  The modification, which essentially carves out an exception for Jews from those nations now living in Israel, may strengthen arguments of opponents who contend that the Executive Order operates de facto as a "Muslim ban."  The U.S. Embassy in Israel yesterday announced:

Travelers with an existing valid visa in their Israeli passport may travel to the United States, even if they are also a national of or born in one of the seven restricted countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen). Embassy Tel Aviv will continue to process visa applications and issue visas to eligible visa applicants who apply with an Israeli passport, even if born in, or a dual national of, one of the seven restricted countries. Final authorization to enter the United States is always determined at the port of entry.

According to The Forward, some 140,000 Israelis, most older than 65, were born in the 7 countries covered by the travel ban. Around 45,000 were born in Iran and 53,000 were born in Iraq. No doubt almost all of these are Jews who left Arab and Muslim countries in the Middle East to move to Israel. (Background.)

6th Circuit Rules On Qualified Immunity In Prisoner Case

Last month in White v. Pauly, (S.Ct., Jan. 9, 2017), the U.S. Supreme Court in a police shooting case emphasized that when officials claim qualified immunity from damages, determining whether the official violated "clearly established" law requires examination of particularized facts rather than a determination at a "high level of generality." Yesterday the U.S. 6th Circuit Court of Appeals applied that principle in a suit by a prisoner claiming he was denied his 1st Amendment right to kosher meals.  In Hermansen v. Thompson, (6th Cir., Feb. 1, 2017), the court (citing White) upheld a finding of qualified immunity, saying:

... [W]e find the instant record devoid of support, in fact or law, for the notion that it should have been obvious to defendants that their provision of kosher food products to Hermansen, prepared in a separate kitchen facility, was nonetheless violative of his First Amendment free exercise rights because the same utensils used to prepare or serve otherwise approved meat products had also been used to prepare or serve otherwise approved dairy products, at some point, without having first been kashered and certified by a rabbi.

[Thanks to Tom Rutledge for the lead.]

Falwell To Head New Federal Task Force on Department of Education Policies

The Chronicle of Higher Education reported this week that Liberty University president Jerry Falwell, Jr. has been asked by President Trump to lead a new task force that will identify Department of Education policies and procedures that should be changed.  Falwell says he sees the task force as a response to overreaching regulation of accreditation standards and policies that affect student recruitment by colleges. The New York Times yesterday speculated that Falwell's Liberty University could benefit from certain regulatory rollbacks.

Judge Gorsuch's Record On Religious Liberty and Church-State Issues

President Trump has nominated 10th Circuit Judge Neil M. Gorsuch to fill the late Antonin Scalia's seat on the U.S. Supreme Court. Judge Gorsuch, who has been on the 10th Circuit for over ten years, has a lengthy record on church-state and religious liberty issues. Christianity Today describes him as "a favorite pick among Christian conservatives."  RNS has an article entitled 5 faith facts on Trump’s Supreme Court pick, Neil Gorsuch.

Here are religion cases in which Judge Gorsuch either wrote an opinion or served on the panel of the 10th Circuit which decided the case:

⇾In Summum v. Pleasant Grove City, 499 F.3d 1170 (10th Cir. 2007), he joined a dissent from denial of an en banc rehearing in a case in which the 3-judge panel required the city to allow a Seven Aphorisms Monument in a city park. The U.S. Supreme Court eventually reversed the panel's decision. [update]

⇾In Green v. Haskell County Board of Commissioners, 574 F.3d 1235 (2009) he wrote a dissent from the denial of an en banc rehearing in a case in which a 3-judge panel had held that a Ten Commandments display outside a county court house violated the Establishment Clause.

⇾In Abdulhaseeb v. Calbone, 600 F.3d 1301(2010) he joined the unanimous decision holding that there were genuine issues of material fact on the issue of whether the state prison policy regarding halal foods substantially burdened a Muslim inmate's religious exercise. The court decided for the first time in the 10th Circuit the meaning of "substantial burden" under the Religious Land Use and Institutionalized Persons Act.

⇾In American Atheists, Inc. v. Davenport, 637 F.3d 1095 (2010) he wrote a dissent from the denial of an en banc rehearing in a case which held that memorial crosses donated by the Utah Highway Patrol Association and placed on public property to commemorate fallen troopers violate the Establishment Clause.

⇾ In United States v. Quaintance, 608 F.3d 717  (2010) he wrote a unanimous opinion refusing to allow a RFRA defense to drug charges, upholding the district court's conclusion that defendants, founding members of the Church of Cognizance, did not hold sincere religious beliefs regarding the use of marijuana. [Update]

⇾In Williams v. Sibbett, 442 Fed. Appx. 385 (2011) he joined a unanimous opinion that affirmed dismissal of a suit by a Muslim inmate who alleged that members of the Utah Board of Pardon and Parole decided to disfavor Muslims in parole decisions and to favor members of the Mormon church.

⇾Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (2013) was the 10th Circuit's en banc decision in the famous Hobby Lobby case holding that two related closely held corporations were likely to succeed on their claim that under RFRA the companies cannot be required to provide health insurance that enables access to contraceptives that they find morally problematic. Judge Gorsuch wrote a concurring opinion emphasizing that the owners of the companies as well as the companies themselves should be entitled to a preliminary injunction.

⇾In Yellowbear v. Lampert, 741 F.3d 48 (2014) he wrote a unanimous opinion vacating a district court's dismissal of a RLUIPA suit by a Native American inmate seeking access to the prison's sweat lodge.

⇾In Ali v. Wingert, 569 Fed. Appx. 562 (2014) he wrote a unanimous opinion upholding a prison regulation that requires inmates wishing to use their religious name on their mail to also use their committed name along with it.

⇾In Little Sisters of the Poor Home for the Aged v. Burwell, 799 F.3d 1315 (2015) he joined a dissent to denial of en banc review of a 3-judge panel's decision that the religious exercise of Little Sisters of the Poor was not substantially burdened by requiring it to execute government forms in order to obtain an exemption from furnishing health insurance that includes contraceptive coverage.

⇾In Planned Parenthood Association of Utah v. Herbert, 839 F.3d 1301 (2016) he dissented from denial of en banc review of a panel decision granting a preliminary injunction to Planned Parenthood to prevent Utah's cutting off the pass-through of federal funds to the organization.

Judge Gorsuch has also written a book titled The Future of Assisted Suicide and Euthanasia, published by Princeton University Press. Here is an excerpt from the publisher's description of the book:

After assessing the strengths and weaknesses of arguments for assisted suicide and euthanasia, Gorsuch builds a nuanced, novel, and powerful moral and legal argument against legalization, one based on a principle that, surprisingly, has largely been overlooked in the debate--the idea that human life is intrinsically valuable and that intentional killing is always wrong. At the same time, the argument Gorsuch develops leaves wide latitude for individual patient autonomy and the refusal of unwanted medical treatment and life-sustaining care, permitting intervention only in cases where an intention to kill is present.

[Note: This post will be updated to include other Gorsuch opinions that come to my attention. I invite readers to e-mail me information on any I have omitted.]

Boy Scouts Will Admit Transgender Males

The Boy Scouts of America announced yesterday that it will accept and register youth in Cub Scout and Boy Scout programs based on the gender identity indicated on the application. This reverses a century old policy that relied on gender stated on the birth certificate to determine eligibility for single-gender programs.  New York Times reports on these developments. Under the new policy a trangender boy was invited back into a New Jersey Cub Scout pack according to NorthJersey.com.

Puerto Rico Federal District Court Rules Says Catholic School Pension Plan Is Covered By ERISA

In Martinez-Gonzalez v. Catholic Schools of the Archdioceses of San Juan Pension Plan, 2017 U.S. Dist. LEXIS 11903 (D PR, Jan. 27, 2017), a Puerto Rico federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 11904, Jan. 9, 2017) and refused to dismiss a suit claiming that the pension plan covering employees of Catholic schools in Puerto Rico does not qualify for the "church plan" exemption in ERISA. The magistrate judge ruled in part:

In light of the plain meaning of the statutory text establishing ERISA's church-plan exemption, this court should find that the better-reasoned view holds that a church plan established by a church-affiliated organization——such as the Superintendence—— [rather than by the Church itself] and maintained by such an organization is not a church plan.

Plaintiffs allege that termination of the plan was in violation of ERISA procedures. This term the U.S. Supreme Court has granted certiorari in cases raising the same legal issue. (See prior posting.)

British Court Denies Transgender Parent Contact With Children Because of Religious Community's Reaction

A British Family Court in J v. B and the Children, (EWFC, Jan. 30, 2017), has rejected the petition of an Orthodox Jewish father, a member of the Manchester Charedi community who left home to live as a transgender woman, to have direct contact with his five children.  The court limited the father's contact to letters four times a year to the children. The court said in part:

These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this. That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education.... Contact carries the clear risk that the children and their mother will become the next casualties in a collision between two unconnecting worlds. The father has already experienced the consequences of that collision, and no one knows better than she does how very painful they can be.....

I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra‐Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact.

The Guardian reports on the decision. [Thanks to Mel Kaufman and Paul deMello for the lead.]

CAIR Sues Over Trump Executive Order

CAIR announced yesterday that it has filed a lawsuit challenging the constitutionality of President Trump's recent Executive Order on refugees and on those entering the U.S. from any of seven Muslim-majority countries. The complaint (full text) in Sarsour v. Trump, (ED VA, filed 1/30/2017) alleges that a hidden purpose of the Executive order (which the complaint calls a Muslim Exclusion Order) is to initiate the mass expulsion of Muslims lawfully living in the U.S. by denying them the ability to to renew their lawful status or receive immigration benefits. Plaintiffs claim that the order violates the Establishment and Free Exercise clauses and denies plaintiffs equal protection of the laws.  Politico reports on the lawsuit.

Lawsuit Challenges Trump Executive Order As Establishment Clause Violation

A direct Establishment Clause challenge to President Trump's Executive Order on immigration and refugees was raised in a lawsuit filed Saturday in a California federal district court in a suit brought on behalf of the People of the United States and of California.  The brief complaint (full text) in People of the United States of America and the State of California v. Trump, (ND CA, filed 1/28/2017) contends that the Executive Order violates separation of powers and is facially unconstitutional under the Establishment Clause because it bars "entry of persons to the United States based on their adherence to religious beliefs shared in certain countries." Politico reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Benjamin Schonthal & Tom Ginsburg, Setting an Agenda for the Socio-Legal Study of Contemporary Buddhism (Introduction), (Asian Journal of Law and Society 3:1-16 (2016)).
• Levi Cooper, Culpability for Curses in Jewish Law and Mystical Lore, (Wizards vs. Muggles: Essays on Identity and the Harry Potter Universe, ed. Christopher E. Bell (Jefferson, NC: McFarland, 2016), 168-193).
• Netta Barak Corren, Beyond Dissent and Compliance, (Oxford Journal of Law and Religion, Forthcoming).
• Dimitry Gegenava, Some Technical and Legal Problems of the Constitutional Agreement, (Journal of Law, No. 1, 2016).
• Nelson Tebbe, Religious Freedom in an Egalitarian Age (Introduction), (N. Tebbe, Religious Freedom in an Egalitarian Age, Harvard University Press, 2017).
• Helge Årsheim, Religion and International Organizations, (In Ian Hurd, Ian Johnstone, and Jacob Katz Cogan (eds), The Oxford Handbook of International Organizations. Oxford: Oxford University Press, pp. 490-507 (2016)).
• Ioana Cismas, The Child's Best Interests and Religion: A Case Study of the Holy See's Best Interests Obligations and Clerical Child Sexual Abuse, (Elaine E. Sutherland and Lesley-Anne Barnes Macfarlane (eds.) Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-Being (Cambridge University Press, 2016), pp. 310-325).
• Dipayan Chowdhury & Atmaja Tripathy, Recognizing the Right of the Third Gender to Marriage and Inheritance Under Hindu Personal Law in India, (Chowdhury D., Tripathy A. Recognizing the Right of the Third Gender to Marriage and Inheritance under Hindu Personal Law in India. BRICS Law Journal. 2016;3(3):43-60).
• Michael Boucai, Is Assisted Procreation an LGBT Right?, (Wisconsin Law Review, Vol. 2016, No. 6, 2016).
• Jud Campbell, Republicanism and Natural Rights at the Founding, (32 Constitutional Commentary 85 (2017)).
• Mohamed A. Arafa & Ahmed El-Ashry, Gender Equality in the Arab and Muslim World: Whither Post-Revolutionary Egypt?, (Gender Equality in a Global Perspective (Routledge Advances in Management and Business Studies, Chapter 3, London & New York, 2017)).

From SmartCILP and elsewhere:

• Justice Barbara A. Jackson, Called to Duty: Justice William J. Gaston, 94 North Carolina Law Review 2051-2096 (2016).
• Gregory A. Mark, Hobby Lobby and Corporate Personhood: Taking the U.S. Supreme Court's Reasoning at Face Value, 65 DePaul Law Review 535-558 (2016).
• Sukhsimranjit Singh, Religious Arbitration and Its Struggles with American Law & Judicial Review, 16 Pepperdine Dispute Resolution Law Journal 360-406 (2016).
• Dr. Isha Ann Emhoff, Ellen Fugate & Nir Eyal, Is There a Moral Right to Nonmedical Vaccine Exemption?, 42 American Journal of Law & Medicine 598-620 (2016).
• Lidiya Mishchenko, In Defense of Churches: Can the IRS Limit Tax Abuse by “Church” Impostors?, 84 George Washington Law Review 1361 (2016).

Recent Prisoner Free Exercise Cases

In Wilson v. Wetzel, 2017 U.S. Dist. LEXIS 9011 (MD PA, Jan. 23, 2017), a Pennsylvania federal district court dismissed a claim by a Hebrew-Israelite inmate that he was wrongly denied kosher bag meals on the Fast of Gedaliah.

In Arnold v. Heyns, 2017 U.S. Dist. LEXIS 8017 (ED MI, Jan. 20, 2017), a Michigan federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 182603, Dec. 21, 2016) and dismissed an Orthodox Jewish inmate's complaint that he was served a vegan diet rather than a kosher diet that included meat. However it allowed him to move ahead with his claim that the vegan meals were not kosher because of cross-contamination.

In Dayton v. Lisenbee, 2017 U.S. Dist. LEXIS 9459 (ED MO, Jan. 24, 2017), a Missouri federal district court held that "while RLUIPA allows official-capacity claims against prison officials, it does not authorize monetary damages based on those claims." However it allowed plaintiff to proceed on his individual-capacity constitutional claims for monetary relief.

In Husband v. Dougherty, 2017 U.S. Dist. LEXIS 11609 (D AZ, Jan. 26, 2017), an Arizona federal district court dismissed an inmate's suit against two prison chaplains complaining that he was not granted a kosher diet during Passover, a daily kosher diet or a shaving waiver.

In Balcar v. Smith, 2017 U.S. Dist. LEXIS 10899 (WD KY, Jan. 26, 2017), a Kentucky federal district court rejected an inmate's complaint that he is not being served chicken and pork because these meats do not comply with a Muslim diet.  He claimed this violates the Establishment Clause, the equal protection clause and RLUIPA.

In Ha'Keem v. Mesojedec, 2017 U.S. Dist. LEXIS 11321 (D MN, Jan. 25, 2017), a Minnesota federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 182928, Dec. 29, 2016) and dismissed with leave to amend a suit by Muslims civilly committed in the Minnesota Sex Offender Program who object to restrictions on their use of prayer oil and numerous other actions that burden their exercise of religion.

6th Circuit Rejects Free Exercise Defense To Marijuana Charges

In United States v. Barnes, (6th Cir., Jan. 26, 2017), the U.S. 6th Circuit Court of Appeals refused to dismiss an indictment of a member of the Oklevueha Native American Church who was charged with growing large quantities of marijuana.  Defendant claimed that the 1st Amendment and RFRA allowed him to grow the plants to donate to the church. The court disagreed saying in part:

Barnes did not make an adequate showing that the CSA substantially burdened his practice of religion. Barnes admitted that growing marijuana and donating it to the church is not required by his religion.... [W]hile marijuana is considered a medicine of the church, it is not an essential sacrament of the faith.... Peyote, by contrast, is the only “sacrament” of the church. Barnes did not provide any historical evidence that the manufacturing of marijuana is central to the ONAC religion specifically, or to Native American religion in general.

... [M]anufacturing marijuana and intending to donate it to the Toledo church was a "personal belief" and a choice that he made, not one that was critical to practicing the ONAC faith. While Barnes is correct that it is not the place of the court to decide the "centrality of . . . beliefs to canonical texts," that does not prevent this court from determining whether a particular practice is required by a religion as a part of the substantial-burden analysis.... 

Church Loses Its Challenge To Town's Sign Ordinance

In Signs for Jesus v. Town of  Pembroke, NH, (D NH, Jan. 27, 2017), a New Hampshire federal district court upheld a New Hampshire town's application of its Sign Ordinance to prohibit a church (that was outside the commercial district) from installing an electronic changing sign. The court, summarizing its conclusions, said:

First, the Town’s decision to deny the Church’s request for an electronic sign had nothing to do with either religion or the content of the Church’s speech. Second, the decision served the Town’s important governmental interests in aesthetics and traffic safety in a manner that was narrowly tailored to serve those interests. Third, the decision does not unreasonably burden the Church’s right to practice its religious beliefs, to practice free speech, or to use its property. Finally, the Town has not treated the Church differently from any other similarly situated landowner. In light of these conclusions, the Church’s contention that it should be free from the effect of the Town’s electronic sign ordinance amounts to a demand, not for a level playing field, but instead for a right to be treated differently from all other private landowners. Neither the state and federal constitutions nor RLUIPA requires this result. 

Pakistani Court Sentences Last of Hajj Corruption Defendants

In Pakistan yesterday, a special court sentenced the last of 4 defendants in the 2010 Hajj corruption case to 30 years in prison and a fine equivalent to $386,000(US).  AAJ-TV reports that defendant Ahmad Faiz was charged with being the front man for the Religious Affairs Director General.  Defendants were charged with massive corruption in the arrangements for Pakistani Hajj pilgrims. (See prior posting.)  Last year, 3 other defendants in the case were sentenced. The former federal minister for religious affairs Hamid Saeed Kazmi and the additional secretary Aftab Ahmed were sentenced to 16 years in prison, while Director General for Hajj Affairs Rao Shakeel was sentenced to 40 years. (Express Tribune, June 3, 2016).

Trump's Immigration Executive Order Faces 1st Amendment Challenges

As reported by the Washington Post, yesterday President Trump signed an Executive Order (full text) suspending for 90 days immigrant and non-immigrant entry into the U.S. of aliens from seven Muslim-majority countries-- Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia. (It should be noted that the countries to which the Executive Order is applicable is discoverable only by elaborate cross references in Sec. 3(c) of the Order that ultimately lead to this list developed last year by the Department of Homeland Security under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of travelers not eligible to participate in the visa waiver program). The Executive Order does not apply to those entering under various diplomatic visas.

The Executive Order also suspends admission of all refugees for 120 days, and of Syrian refugees for an indefinite period.  It provides that when refugee admissions are resumed:

the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality.

Following up on this provision, Trump told the Christian Broadcasting Network that priority will be given to persecuted Christians in the Middle East, particularly Syria. The Legal Director of the ACLU in a post earlier today argued that the Executive Order's targeting of Muslims and favoring of Christians violates the Establishment Clause. Meanwhile CAIR announced that it will be holding a news conference Monday on a lawsuit that it will file in federal district court in Virginia to "challenge the constitutionality of the order because its apparent purpose and underlying motive is to ban people of the Islamic faith from Muslim-majority countries from entering the United States."

Pence Speaks To March For Life

As reported by the New York Times, today Vice President Mike Pence spoke in person to the thousands of marchers in this year's anti-abortion March For Life. (Full text of remarks.)  He said in part:

More than two-hundred and forty years ago, our Founders wrote words that have echoed through the ages. They declared “these truths to be self-evident.” That we are, all of us, “endowed by our Creator with certain unalienable rights,” and “that among these are life, liberty, and the pursuit of Happiness.” Forty-four years ago, our Supreme Court turned away from the first of these timeless ideals....

But as it is written, “let your gentleness be evident to all.” Let this movement be known for love, not anger – for compassion, not confrontation. When it comes to matters of the heart, there’s nothing stronger than gentleness.

Even Trump's Statement on International Holocaust Memorial Day Is Not Without Controversy

Today is International Holocaust Memorial Day.  The day-- the anniversary of the liberation of Auschwitz-Birkenau-- was chosen by the United Nations General Assembly as the date for the international commemoration. CBS News reports on commemoration activities in various countries.  President Donald Trump issued a Statement (full text) marking the commemoration, saying in part:

It is with a heavy heart and somber mind that we remember and honor the victims, survivors, heroes of the Holocaust. It is impossible to fully fathom the depravity and horror inflicted on innocent people by Nazi terror.

Jonathan Greenblatt, head of the Anti-Defamation League commented on the President's Statement in a Tweet, saying:

Puzzling and troubling White House Holocaust Memorial Day Statement has no mention of Jews. GOP and Democratic presidents have done so in the past.

Other media, such as the Washington Post and  Haaretz make the same point about Trump's statement.

Presidential Proclamation For National School Choice Week

Yesterday President Donald Trump issued a Proclamation (full text) declaring January 22 through January 28 as National School Choice Week. The Proclamation reads in part:

Our country is home to many great schools and many extraordinary teachers -- whether they serve in traditional public schools, public charter schools, magnet schools, private or religious schools, or in homeschooling environments....

As our country celebrates National School Choice Week, I encourage parents to evaluate the educational opportunities available for their children.  I also encourage State lawmakers and Federal lawmakers to expand school choice for millions of additional students.

March For Life Is Today; VP Pence Will Address Marchers

In Washington, D.C., the annual March for Life, protesting the U.S. Supreme Court's Roe v. Wade decision is being held today.  Roe was decided in January of 1973. As reported by ABC News, this year Vice President Mike Pence and counselor to the president Kellyanne Conway will both address the marchers in person.  They are the highest-ranking White House officials to ever address the march in person. Other speakers include Cardinal Timothy Dolan, Sen. Joni Ernst (R-Iowa), Rep. Mia Love (R-Utah), and Rep. Chris Smith (R-New Jersey).

3rd Circuit Hears Appeal In Convictions For Coercing Jewish Divorce Documents

The U.S. 3rd Circuit Court of Appeals on Wednesday heard oral arguments in United States v. Stimler. (Audio of full oral arguments.) In the case, a New Jersey federal district court convicted three defendants on charges growing out of arrangements to abduct, beat and torture recalcitrant Jewish husbands who refused to give their civilly divorced wives a religious divorce document (get). (See prior posting.) According to AP's report on Wednesday's oral arguments, defendants' attorneys argued, among other things, that the trial judge erred in not admitting evidence into trial that explained the defendants' religious beliefs. (See prior related posting.) Attorneys also argued lack of search warrants to obtain cellphone records.

EEOC Gets New Acting Chair; Releases 2016 Data On Charges

The EEOC announced yesterday that President Donald Trump has named Commissioner Victoria A. Lipnic as Acting Chair of EEOC. She replaces Jenny R. Yang who continues to serve as a Commissioner.

Meanwhile, last week the EEOC released detailed breakdowns of the 91,503 charges of workplace discrimination it received in fiscal year 2016. Religious discrimination was charged in 4.2% of the complaints. This year for the first time the EEOC included separate data for LGBT-based sex discrimination charges.

Pro-Life Student Group Sues Over Denial of Recognition

Yesterday a pro-life student group filed a federal lawsuit against officials of Queens College in New York after the organization was denied registered student organization status.  The complaint (full text) in Queens College Students For Life v. Members of the City University of New York Board of Trustees, (ED NY, filed 1/25/2017), contends that the unbridled discretion given to the Campus Affairs Committee to deny registered student organization status (and its associated benefits, including funding from student activity fees) allows discrimination against organizations on the basis of viewpoint. ADF issued a press release announcing the filing of the lawsuit.

Suit Attacks Sex Offender Registry Law As Restricting Religious Freedom

A federal civil rights lawsuit was filed this week challenging the extensive restrictions imposed by North Carolina's Sex Offender Registration Law.  The complaint (full text) in National Association for Rational Sexual Offense Laws v. Stein, (MD NC, filed 1/23/2017) asserts that those on the registry are banned from living in many areas, working in many jobs and being present in places such as libraries, colleges and houses of worship. The 88-page complaint contends that the restrictions infringe various 1st and 14th Amendment rights of registrants, including their free exercise of religion. Because almost all churches have youth activities, restrictions on registrants being near areas primarily intended for use by minors or where minors frequently congregate mean mean that registrants are unable to attend church services. NARSOL issued a press release announcing the filing of the lawsuit.

Trump Revives Dakota Pipeline, With Some Ambiguity As To Tribal Objections

As reported by the Washington Post, President Trump yesterday issued a Presidential Memorandum (full text) directing the Secretary of the Army to expedite approval of construction of the controversial Dakota Access Pipeline (DAPL).  One reason DAPL has been controversial is that it was routed to run a half mile from the Standing Rock Sioux reservation, impinged on sacred tribal burial and historical sites and also created oil spill concerns by the tribe. To deal with these concerns, in December the U.S. Army announced that it would not approve an easement for DAPL under Lake Oahe in North Dakota, urging developers to find an alternative route. (See prior posting.)

Yesterday's Presidential Memorandum leaves some ambiguity regarding protection of tribal rights.  The Memorandum broadly calls for the Army to "review and approve in an expedited manner, to the extent permitted by law and as warranted, and with such conditions as are necessary or appropriate, requests for approvals to construct and operate the DAPL, including easements or rights-of-way to cross Federal areas."  However it then appears to qualify this as to the Lake Oahe easement, instructing the Army to:

consider, to the extent permitted by law and as warranted, whether to rescind or modify the memorandum by the Assistant Secretary of the Army for Civil Works dated December 4, 2016 (Proposed Dakota Access Pipeline Crossing at Lake Oahe, North Dakota)....

The Guardian reports that supporters of the Standing Rock Sioux say they will fight the President's action.  Tribal chairman Dave Archambault said: "President Trump is legally required to honor our treaty rights and provide a fair and reasonable pipeline process."

Survivors' Group Sued By Former Employee Charging Kickbacks From Victims' Attorneys

A lawsuit was filed last week in an Illinois state court by a former employee of SNAP (Survivors Network of those Abused by Priests) alleging that SNAP, instead of helping sex abuse survivors, exploits them.  The complaint (full text) in Hammond v. Survivors Network of Those Abused By Priests, (Cook Cty IL Cir. Ct., filed 1/17/2017) alleges that:

SNAP routinely accepts financial kickbacks from attorneys in the form of "donations." In exchange for kickbacks, SNAP refers survivors as potential clients to attorneys, who then file lawsuits on behalf of the survivors against the Catholic Church.

The complaint adds the allegation that "SNAP is motivated largely by the personal animus of its directors and officers against the Catholic Church."  Plaintiff claims retaliatory action was taken against her after she confronted her superiors with the claim that SNAP was colluding with survivors' attorneys. Kansas City Star reports in more detail on the lawsuit. SNAP says that the allegations in the lawsuit are not true.

Meanwhile, RNS reports that long-time Executive Director of SNAP,  David Clohessy, announced yesterday that he had left his position with the organization in December. He says his departure is unrelated to the lawsuit filed last week.

School Bus Driver Wants Religious Exemption From Fingerprints In Background Check

A former bus driver for the company that transports Altoona, Pennsylvania school students has filed a religious discrimination suit in federal district court in Pennsylvania.  According to yesterday's Altoona Mirror, a recently enacted state law required bus driver Bonnie F. Kaite to undergo a criminal background check.  She sought a religious accommodation because of her Christian religious beliefs, seeking a background check that does not require her to be fingerprinted. She says that she cannot be fingerprinted because of  the verse in the Book of Revelation prohibiting the "mark of the devil."

Malaysian Politician Wants Ruling On Sharia Court Conviction

In Malaysia, Parliament member Khalid Abdul Samad last month was fined RM2,900 (the equivalent of $650 (US)) by the lower shariah court for giving a religious talk without having religious credentials in violation of Section 119 (1) of the Selangor Islamic Law Administration Enactment. Khalid insists he was giving a talk about his trip to Palestine, and was not giving a religious talk. As reported yesterday by FMT News, Khalid now wants the Election Commission to rule on whether this conviction disqualifies him from serving in Parliament.  Malaysia's constitution provides that an MP is disqualified if convicted of an offense by a "court of law" and is sentenced to a jail term of one year or more, or is fined not less than RM2,000.  Khalid's supporters argue that his violation was not a penal offense, and the Selangor shariah lower court is not a "court of law."

Court Says Environmentalism Is Not A Religion

In Krause v. Tulsa City-County Library Commission, (ND OK, Jan. 23, 2017), a Oklahoma federal district court dismissed plaintiff's complaint that "fake" recycling bins in the downtown Tulsa library unconstitutionally burden his practice of his religion which he says is Environmentalism.  According to the court:

Plaintiff’s ... Complaint contains no factual support for Plaintiff’s conclusory assertion that Environmentalism is a religious, and not a secular practice or lifestyle....

Even if this Court were to accept that Environmentalism constitutes a religion or a religious practice, Plaintiff’s allegations do not support a plausible conclusion that the Defendant’s recycling program imposes a substantial burden on the exercise of a religious practice. 

Former Employees Sue Claiming They Were Required To Participate In Scientology Traininig

According to yesterday's Madison County Herald Bulletin, Paul and Chelsea Wysong who are former employees of the Anderson, Ohio-based Continental Design Co. filed a religious discrimination lawsuit in state court in Darke County, Ohio last week.  Plaintiffs charged that company CEO Judy Nagengast required them to participate in Scientology religious practices, such as audits and training. They were told to attend Scientology courses in California, Indiana and Florida. Nagengast denies the allegations and said she plans a counter-suit.

Trump Reinstitutes Ban On Foreign Aid To NGOs That Promote Abortion Services

As reported by the New York Times, in a Presidential Memorandum (full text) issued yesterday President Trump reinstated the so-called "Mexico-City Policy."  The policy bars U.S. foreign aid dollars from going to nongovernmental organizations that offer abortion counseling or  advocate the right to seek abortions in their home countries.  Other U.S. law already bans the use of taxpayer dollars to fund actual abortion services, but this policy prohibits funds going to organizations even if they use other funds to promote abortion. The policy, originally instituted in 1984 by President Ronald Reagan has been suspended by Democratic presidents and reinstituted by Republican presidents ever since.

Supreme Court Denies Review In Challenge To Utah's Polygamy Laws

The U.S. Supreme Court today denied review in Brown v. Buhman, (Docket No. 16-333, cert. denied 1/23/2017). (Order List).  In the case, the U.S. 10th Circuit Court of Appeals dismissed on mootness grounds the constitutional challenge to Utah's anti-polygamy laws that had been filed by the polygamous family from the television show "Sister Wives." (See prior posting.) Salt Lake Tribune reports on the denial of certiorari.

2nd Circuit Hears Arguments In Title VII Sexual Orientation Case

As reported by New York Law Journal, on Friday the U.S. 2nd Circuit Court of Appeals heard oral arguments in Christiansen v. Omnicom Group (audio of full oral arguments).  At issue was whether Title VII of the 1964 Civil Rights Act bars discrimination on the basis of sexual orientation. The district court in Christiansen v. Omnicom Group, Inc., (SD NY, March 9, 2016), relying on earlier 2nd Circuit precedent, held that Title VII does not bar discrimination on the basis of of sexual orientation.

Jordan's King Appoints New Chief Islamic Justice and New Mufti

According to Jordan Times, King Abdullah of Jordan issued a royal decree yesterday endorsing a Cabinet decision appointing Sheikh Abdul Karim Khasawneh as the chief Islamic justice.  The chief Islamic justice oversees the Sharia courts that deal mainly with personal status law.  Before his appointment, Khasawneh served as grand mufti, heading the Iftaa Department that has authority to issue religious edicts. In a second royal decree yesterday, Mohammad Khalaileh was appointed grand mufti to replace Khasawneh.

UPDATE:  The appointment of a new Islamic chief justice was triggered by the resignation of the prior chief justice, Ahmad Hilayel, after he delivered a Friday sermon that embarrassed the Jordanian government.  According to Al Jazeera (Jan. 23), Hilayel criticized leaders of the Gulf States for not sharing their wealth with Jordan.

Recent Articles of Interest

From SSRN:

• Arolda Elbasani, Governing Islam in Plural Societies: Religious Freedom, State Neutrality and Traditional Heritage, (Journal of Balkan and Near Easter Studies 19 (1): 4-18, 2017).
• Perry Dane, Call and Response: A D’Var Torah on Parshat Vayechi, (January 14, 2017).
• Mitchell Landrigan, Could the Implied Freedom of Political Discourse Protect the Speech of a Delisted Anglican Minister?, (January 13, 2017).
• Charles Cohen, Losing Your Children: The Failure to Extend Civil Rights Protections to Transgender Parents, (George Washington Law Review, Vol. 85, No. 2, 2017).
• Jessica A. Clarke, Frontiers of Sex Discrimination Law, (Michigan Law Review, Vol. 115, No. 6, Forthcoming).
• Victor Asal & Udi Sommer, Legal Path Dependence and the Long Arm of the Religious State (Excerpts), ("Legal Path Dependence & The Long Arm of the Religious State: Sodomy Provisions and Gay Rights Across Nations and Over Time", SUNY Press (October 20, 2016)).
• Johanna Pesendorfer & Othmar Manfred Lehner, Islamic Banking and Finance As an Ethical Alternative: A Systematic Literature Review, (ACRN Oxford Journal of Finance and Risk Perspectives 5.2 (2016): 42-64).

From SmartCILP:

• Chad DeVeaux, The Monster Unleashed: How Hobby Lobby Threatens the Freedom of Employees to Practice Religion, 1 Concordia Law Review 114-132 (2016).
• Terence E. Hogan, Gaudium et Spes: Reflections on Dialogue with Cuba, 11 Intercultural Human Rights Law Review 249-260 (2016).
• Ayelet Hoffmann Libson, "The Heart Knows its Own Bitterness": Authority, Self, and the Origins of Patient Autonomy in Early Jewish Law, 56 American Journal of Legal Hist. 303-325 (2016).
• Cardinal Peter K.A. Turkson, Laudato Si's Challenge to Social Conscience: Society and Nature Together, 11 Intercultural Human Rights Law Review 1-13 (2016).