Jewish School's Challenge To Zoning Decision Is Ripe For Litigation

In Congregation Kollel, Inc. v. Township of Howell, N.J., (D NJ, Feb. 16, 2017), a New Jersey federal district court rejected a township's lack of ripeness defense in a suit by an Orthodox Jewish organization that is attempting to construct a classroom building, dormitory and faculty housing for a Talmudic academy.  The township rejected the academy's permit application and instead insisted that it apply for a zoning variance. Plaintiffs, believing that the land use decision was based on religious animus towards the Orthodox Jewish faith, sued claiming violations of RLUIPA, the Fair Housing Act, the 1st and 14th Amendments and state law.  The township argued that the suit should not be decided until plaintiffs had applied for a zoning variance.  The court held, however, that a variance application would not result in development of any additional factual record and that (except for one state law claim) plaintiffs can move ahead with their suit.

Washington Supreme Court Says Florist's Refusal To Sell For Same-Sex Wedding Violated State Law

In a widely followed case, the state of Washington's Supreme Court yesterday unanimously upheld a trial court's decision that a florist's religiously-motivated refusal to sell arranged flowers for a same-sex wedding violates the Washington Law Against Discrimination.  In State of Washington v. Arlene's Flowers, Inc.,WA Sup. Ct., Feb. 16, 2017), the court, summarizing its 59-page decision, said:

Discrimination based on same-sex marriage constitutes discrimination on the basis of sexual orientation. We therefore hold that the conduct for which Stutzman [the florist shop owner] was cited and fined in this case-refusing her commercially marketed wedding floral services to Ingersoll and Freed because theirs would be a same-sex wedding-constitutes sexual orientation discrimination under the WLAD. We also hold that the WLAD may be enforced against Stutzman because it does not infringe any constitutional protection. As applied in this case, the WLAD does not compel speech or association. And assuming that it substantially burdens Stutzman's religious free exercise, the WLAD does not violate her right to religious free exercise under either the First Amendment or article I, section 11 [of the state constitution] because it is a neutral, generally applicable law that serves our state government's compelling interest in eradicating discrimination in public accommodations.

A press release from ADF says that florist Barronelle Stutzman will seek U.S. Supreme Court review in the case. Links to pleadings and court rulings in the case can also be found on ADF's case page. (See prior related posting.) Tri-City Herald reports on the decision.

Trump Keeps Special Envoy For LGBTI Rights At State Department

Foreign Policy this week reports that  the Trump Administration has decided to keep Obama-appointee Randy Berry in his State Department position of Special Envoy for the Human Rights of LGBTI Persons. According to Foreign Policy:

The special envoy position was created during the Obama years to fight back against the discrimination of lesbian, gay, bisexual, and transgender people around the globe. Conservative groups have called the office an attempt to “entrench the LGBTI agenda” into the United States government, and accuse it of browbeating countries opposed to gay-friendly school textbooks and same-sex marriage.

Berry repeatedly stressed that his goal was to convince foreign governments to stop violence against gays and lesbians rather than pressure every nation to allow same-sex marriage. 

Berry, who is an openly gay career Foreign Service officer, will also stay on as deputy assistant secretary to the Bureau of Democracy, Human Rights, and Labor, a position to which he was appointed in the last hours of the Obama administration. Christian evangelical groups had called for Trump to dismiss Berry.

2016 Census of Hate Groups Released

The Southern Poverty Law Center yesterday released its annual census of hate groups and other extremist organizations. The census, which lists 917 groups for 2016, is in the form of an interactive map showing the location of each group. The 2015 census showed 892 hate groups.  Anti-Muslim hate groups rose to 101, up from 34 a year earlier.

6th Circuit: County Board's Prayer Practice Violates Establishment Clause

In Bormuth v. County of Jackson, (6th Cir., Feb. 15, 2017), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that the manner in which the Jackson County, Michigan Board of Commissioners opens its meetings with prayer violates the Establishment Clause.  The majority held that the County Commissioners went beyond that permitted by the Supreme Court's Town of Greece decision.  Plaintiff in the case was Peter Bormuth who described himself as a Pagan and an Animist. When during the public comment period at one meeting Bormuth complained that the invocation practice violated the Establishment Clause, one of the Commissioners "made faces expressing his disgust" and then turned his chair around so he would not look at Bormuth while he spoke.

Judge Moore's majority opinion said in part:

A combination of factors distinguishes this case from the practice upheld in Marsh and Town of Greece, including one important factor: the identity of the prayer giver.... Here, the Jackson County Commissioners give the prayers.... The difference is not superficial. When the Board of Commissioners opens its monthly meetings with prayers, there is no distinction between the government and the prayer giver: they are one and the same....

Because they are the ones delivering the prayers, the Commissioners—and only the Commissioners—are responsible for the prayers’ content.... And because that content is exclusively Christian, by delivering the prayers, the Commissionersare effectively endorsing a specific religion....

What is more, the prayer givers are exclusively Christian because of an intentional decision by the Board of Commissioners.... [A]t least one Jackson County Commissioner admitted that, in order to control the prayers’ content, he did not want to invite the public to give prayers....

First, the Board of Commissioners directs the public to participate in the prayers at every monthly meeting.... Second, the Board of Commissioners has singled out Bormuth for opprobrium. During a public meeting, a Commissioner stated that Bormuth’s lawsuit was an "attack on Christianity and Jesus Christ, period."...

Third, Bormuth has submitted evidence suggesting that the Board of Commissioners has “allocated benefits and burdens based on participation in the prayer.” ... Shortly after Bormuth filed his complaint, Jackson County officials nominated members for the County’s new Solid Waste Planning Committee from a pool of applicants.... Although Bormuth had three years of experience working on related issues, the Board of Commissioners did not nominate him.

Judge Griffin filed a lengthy dissenting opinion. AP reports on the decision.

Trump's EEOC Continues To Fight Transgender Employment Discrimination

Slate reported yesterday that it has become clear that the EEOC under the Trump Administration will continue to fight employment discrimination against transgender individuals.  In a brief (full text) filed with the 6th Circuit on Feb. 10, the EEOC argued that Title VII's prohibition on "sex" discrimination includes discrimination based on transgender status and/or transitioning.  It also argued that religious beliefs are not a basis for discriminating against transgender individuals. The brief comes in an appeal in EEOC v. R.G, a suit in which a Michigan federal district court upheld a funeral home's defense under the Religious Freedom Restoration Act to a charge that it engaged in gender stereotyping when it dismissed a transgender employee who was in the process of transitioning from male to female. (See prior posting.)

UPDATE: I should add that it has become clear that the EEOC will continue to take this position for now.  Because there is a vacancy on the Commission, a Democratic commissioner's position comes up for appointment later this year and the General Counsel position is vacant, the Commission could change its position in the future. The Slate article points out these possibilities.

New Suit Challenges Syrian Refugee Ban In Trump Executive Order; Hawaii Suit Moves Ahead

The portion of President Trump's travel ban Executive Order which suspends entry of refugees from Syria into the United States was challenged in a lawsuit filed on Monday in a Wisconsin federal district court by a Sunni Muslim who was granted asylum status because of torture and religious persecution he had
suffered in Syria.  The complaint (full text) in Doe v. Trump, (WD WI, filed 2/13/2017), says that the ban prevents plaintiff from bringing his wife and 3-year old daughter to the U.S. from Syria under a derivative asylum petition which is being processed by the government. The Executive Order prevents USCIS from adjudicating the petition and the State Department from issuing visas to his family.  It also contends that the nationwide temporary restraining order issued by a Washington federal district court is not broad enough to cover this situation because the TRO applies only to enforcement at "United States borders and ports of entry." This new suit alleges that the Executive Order violates the Establishment Clause, the Equal Protection and Due Process clauses and various statutory provisions. WRN News reports on the lawsuit.

Meanwhile, Hawaii's Attorney General announced yesterday that a federal district judge has partially lifted a stay he imposed last week on Hawaii's suit against the Executive Order. This allows an Hawaii resident to be added as a plaintiff.  The court also allowed Hawaii to file an amended complaint (full text) adding a challenge under the Religious Freedom Restoration Act. KHON News reports on these developments.

Pakistani Court Bans Public Valentine's Day Celebrations

AP reports that a court in Pakistan's capital of Islamabad has banned all Valentine's Day celebrations in public places or at official levels in the capital city. The court, whose ruling applies only in the capital city, said that the celebrations violate Islamic law.  Pakistan's media regulator instructed all media outlets not to print or broadcast any Valentine's Day promotions.

Virginia Federal Judge Says Trump Travel Ban Likely Violates Establishment Clause

Yesterday another court ruled against President Trump's Executive Order that temporarily bars entry into the country of individuals from seven majority-Muslim nations.  In Aziz v. Trump, (ED VA, Feb. 13, 2017), a Virginia federal district court concluded that Virginia had produced unrebutted evidence that it is likely to succeed on its Establishment Clause claim, saying in part:

The "Muslim ban" was the centerpiece of the president's campaign for months.... [Rudy] Giuliani said two days after the EO was signed that Trump's desire for a Muslim ban was the impetus for this policy.

The court enjoined enforcement of Section 3(c) of the Executive Order at any port of entry against Virginia residents how either were lawful permanent residents or who held a valid student visa or work visa at the time the Executive Order was signed. NBC4 News reports on the decision.

Settlement Reached In Suit Against Jehovah's Witness Congregation Over Sex Abuse

Penn Live reports that a settlement has been reached on the fifth day of a trial in Philadelphia, Pennsylvania in a suit against a Jehovah's Witness congregation and other Jehovah's Witness organizations. In the suit, plaintiff claims that as a teenager she was sexually abused by a member of her church and church elders covered up the situation and failed to report it to authorities after the girl's mother contacted church elders.  The full text of the complaint in the case, Fessler v. Watchtower Bible and Tract Society of New York, Inc., (PA Com. Pleas, filed 3/26/2014), is discussed in another report by Penn Live.

Court Denies Preliminary Injunction In Tribal Challenge To Dakota Pipeline

AP reports that a federal district judge in Washington, D.C. yesterday refused to grant a temporary injunction against construction of the portion of the Dakota Access Pipeline running under Lake Oahe.  The Cheyenne River and Standing Rock Sioux tribes had sued claiming that the pipeline violates their rights under the Religious Freedom Restoration Act. (See prior posting.) The judge ruled on the motion after an hour-long hearing, concluding that the Tribe's religious exercise would not be infringed before oil actually begins running through the pipeline. Full arguments on the motion will be heard by the court on Feb. 27.

Trump Justice Department Withdraws Objections To Nationwide Injunction In Transgender Bathroom Case

As previously reported, last year a Texas federal district court issued a nationwide preliminary injunction barring the federal government from enforcing Guidelines interpreting Title IX as barring discrimination by schools on the basis of gender identity.  In particular the Guidelines took the position that transgender students must have access to restrooms and locker rooms consistent with their gender identity. Subsequently the Obama administration asked the court for a partial stay that would limit the injunction, pending appeal, to the 13 states that were plaintiffs in the case.  As reported by AP, a hearing on that motion was to have been held Feb. 14.  However on Friday, the Justice Department withdrew the government's request for a partial stay, and indicated it was "currently considering how best to proceed in this appeal." (Full text of court filing.)

Last week, the U.S. 9th Circuit Court of Appeals approved a similar nationwide injunction against President Trump's Executive Order barring travel from seven Muslim countries. (See prior posting.) In its unsuccessful motion for a stay (full text, see pg. 24), the Justice Department argued that a nationwide injunction was improper because it went beyond providing relief to the plaintiffs in the case.

Russians Divided Over Return of Famous Cathedral To The Church

AP reports that in St. Petersburg, Russia, competing demonstrations were staged yesterday over the city's decision, announced last month, to return St. Isaac's Cathedral to the Russian Orthodox Church. The Cathedral was seized after Soviets took control in 1917, and was turned into a museum.  It has become one of the city's top tourist attractions. Opponents of the return are concerned that Church tours will begin to focus too much on the Cathedral's religious aspects at the expense of its architectural and cultural importance.

Recent Articles of Interest

From SSRN:

• Andrew Koppelman, If Liberals Knew Themselves Better, Conservatives Might Like Them Better, (20 Lewis & Clark L. Rev. 1201 (2017))
• Graham Polando, Restraining Free Exercise: Protection Orders and Church Attendance, (February 5, 2017).
• B. Jessie Hill, Kingdom Without End? The Inevitable Expansion of Religious Sovereignty Claims, (Lewis & Clark Law Review, Vol. 20, 2017).
• Robin Fretwell Wilson, Unpacking the Relationship between Conscience and Access, (Forthcoming, Law, Religion, and Health in the United States, Holly Fernandez Lynch, I. Glenn Cohen, Elizabeth Sepper, eds. Cambridge U. Press 2017).
• Sahar F. Aziz, Losing the 'War of Ideas': A Critique of Countering Violent Extremism Programs, (Texas International Law Journal, Forthcoming).
• Christian Turner, Submarine Statutes, (February 8, 2017).
• Mary Anne Case, Forms of Patriarchy in Amoris Laetitia and in the Papacy of Francis, (U of Chicago, Public Law Working Paper No. 613 (2017)).
• Claudia E. Haupt, Antidiscrimination in the Legal Profession and the First Amendment: A Partial Defense of Model Rule 8.4(g), (19 University of Pennsylvania Journal of Constitutional Law Online (2017 Forthcoming)).
• Gertrude N. Levine & Samuel J. Levine, Internet Ethics, American Law, and Jewish Law: A Comparative Overview (21 J. Tech. L. & Pol’y 37 (2016)).

From SSRN (Focus on individuals):

• Andrew Koppelman, Kent Greenawalt, Defender of the Faith, (Texas Law Review, Forthcoming).
• Michael John DeBoer, Justice Brent E. Dickson, State Constitutional Interpretation, and the Religion Provisions of the Indiana Constitution, (Indiana Law Review, Vol. 50, No. 1, 2016).

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

• Shital Prakash Kharat, Effect of the Hindu Succession (Amendment) Act 2005 – Judicial Response, (February 6, 2017).
• Grant Robert Hooper, From the Magna Carta to Bentham to Modern Australian Judicial Review: Themes of Practicality and Spirituality, (Australian Institute of Administrative Law (AIAL) Forum, Vol. 84, pp. 22-44, 2016).

From SSRN (LGBT Rights):

• Reva Siegel, Same-Sex Marriage and Backlash: Consensus, Conflict, and Constitutional Culture, (February 9, 2017).
• Susan Frelich Appleton, Obergefell's Liberties: All in the Family, (Ohio State Law Journal, Vol. 77, No. 5, 2016).
• Malcolm Langford, Revisiting Joslin v. New Zealand: Same-Sex Marriage in Polarised Times, (E. Brems and E. Desmet, Integrated Human Rights in Practice: Rewriting Human Rights Decisions (Edward Elgar, 2017)).
• Katherine Pratt, The Tax Definition of 'Medical Care': A Critique of the Startling IRS Arguments in O'Donnabhain v. Commissioner, (23 Michigan Journal of Gender & Law 313 (2016)).
• Robin Fretwell Wilson, Squaring Faith and Sexuality: Religious Institutions and the Unique Challenge of Sports, (Law and Inequality: A Journal of Theory and Practice, Vol. 34, No. 385, 2016).
• Robin Fretwell Wilson, The Nonsense About Bathrooms: How Purported Concerns over Safety Block LGBT Nondiscrimination Laws and Obscure Real Religious Liberty Concerns, (Lewis & Clark Law Review, Vol. 20, No. 4, 2017).

From SmartCILP and elsewhere:

• Michael J. Churgin, Is Religion Different? Is There a Thumb on the Scale in Refugee Convention Appellate Court Adjudication in the United States? Some Preliminary Thoughts, [Abstract], 51 Texas International Law Journal 213-228 (2016).
• David L. Hudson, Jr. & Emily H. Harvey, Dissecting The Hybrid Rights Exception: Should It Be Expanded or Rejected?, [Abstract], 38 University of Arkansas Little Rock Law Review 449-475 (2016).
• Hon. Gail T. Kulick, Tadd M. Johnson, Rebecca St. George, & Emily Segar-Johnson, From Dysfunction and Polarization to Legislation: Native American Religious Freedom Rights and Minnesota Autopsy Law, 42 Mitchell Hamline Law Reveiw 1699-1721 (2016).
• Law, Religion and the Family Unit After Hobby Lobby: A Tribute to Professor Harry Krause, 2016 University of Illinois Law Review 1227-1808.
• Symposium: Law and Religion In an Increasingly Polarized America,(Lewis & Clark Law Review, Vo. 20, No. 4, 2017).
• Symposium on Religious Liberty and Christian Higher Education, (Two Kingdoms Network, Concordia University, 2017). The Symposium, among others, includes Howard M. Friedman, The Future of Religious Liberty.

USCIRF Issues New Report On Vietnam

Last week the U.S. Commission on International Religious Freedom released a report titled Religious Freedom in Vietnam: Assessing the Country of Particular Concern Designation 10 Years After its Removal. The Introduction summarizes the report's theme:

Of all the countries the U.S. government has designated as CPCs, Vietnam is unique in that it is the only one removed from the CPC list due to diplomatic activity. This raises several questions: Why was Vietnam first designated as a CPC? What was different about this designation that led to Vietnam’s swift removal from the list? If the strategy was a success in de-listing Vietnam, why has it not been replicated in other countries? This paper examines the history and efficacy of Vietnam’s CPC designation, ultimately arguing it should be re-designated.

Florida Judge Says Refusal To Sell Cake With Anti-Gay Message Is Not Religious Discrimination

A Florida Administrative Law Judge in a decision last week recommended to the Florida Commission on Human Relations that it find a Longwood, Florida bakery did not violate the state's public accommodation law when it effectively refused an order for a cake with the inscription "Homosexuality is an abomination unto the Lord." Cut the Cake bakery, owned by a mother and daughter, quoted a caller a price of $5,850 for the cake after the bakery had been the subject of thousands of calls per week when a You-Tube video was posted of a previous call in which the bakery refused to make a cake displaying an anti-homosexual message. In Mannarino v. Cut the Cake Bakery, (FL Div. Admin. Hearings, Feb. 9, 2017), petitioner claimed that the refusal constituted religious discrimination against him as a Christian.  The judge ruled, however, that the bakery did not fall within the definition of "public accommodation" under Florida law since it does not sell food for consumption on the premises. Additionally he ruled that petitioner had not shown religious discrimination, saying:

Cut the Cake refused to fulfill Petitioner’s order, not because he was Christian, but because of what it perceived to be the purpose of his message. Cut the Cake considered Petitioner’s message mean-spirited, regardless of his religion or the Quote’s source.

St. Augustine Record reports on the decision.

Recent Prisoner Free Exercise Cases

In Fluker v. King, (5th Cir., Feb. 9, 2017), the 5th Circuit affirmed the dismissal of a suit by a Muslim inmate who complained that Muslim c-custody inmates could not attend Jumu’ah services outside of their unit while non-Muslim c-custody inmates could.

In Conway v. Alford, (8th Cir., Feb. 8, 2017), the 8th Circuit concluded that the mailroom's withholding of publications from the Church of Jesus Christ Christian, classified as a security threat/ terrorist group, did not substantially burden an inmate's religious exercise.

In Vasquez v. Rockland County, 2017 U.S. Dist. LEXIS 14746 (SD NY, Jan. 31, 2017), a New York federal district court dismissed a complaint by an inmate that he was prevented from observing Ramadan due to being placed on a suicide watch.

In Gilliam v. Baez, 2017 U.S. Dist. LEXIS 15680 (SD NY, Feb. 2, 2017), a New York federal district court dismissed without prejudice an inmate's complaint that on two occasions he was permitted to participate in Nation of Islam classes.

In Harris v. Norwood, 2017 U.S. Dist. LEXIS 15979 (WD AR, Feb. 6, 2017), an Arkansas federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 16205, Jan. 12, 2017) and permitted an inmate to proceed with his complaint that his free exercise rights were infringed when he, as a "pork free person", was denied pork free meal trays.

In Ayoubi v. Dart, 2017 U.S. Dist. LEXIS 16310 (ND IL, Jan. 31, 2017), an Illinois federal district court dismissed a complaint by a Muslim inmate who the court described as "an experienced pro se litigator." Plaintiff objected to limits on his access to religious services, refusal of post-Ramadan-fast meal trays, denial of a Halal diet containing meat, and prohibition on his using a prayer rug and wearing a head garment.

In Young v. Hooks, 2017 U.S. Dist. LEXIS 17115 (SD OH, Feb. 7, 2017), an Ohio federal magistrate judge recommended dismissing an inmate's complaint that during a search of his cell his bottle of prayer oil was poured out.

In Edwards v. Thomas, 2017 U.S. Dist. LEXIS 17111 (MD PA, Feb. 6, 2017), a Pennsylvania federal district court allowed a Muslim inmate to move ahead with his free exercise challenge to the refusal of his request for a kosher diet, which would have met his Halal diet requirements.

In Branco v. Milligan, 2017 U.S. Dist. LEXIS 18094 (ND OH, Feb. 7, 2017), an Ohio federal district court dismissed a complaint by an inmate that on one occasion officials overlooked his housing unit when calling Muslim inmates down for a meal during Ramadan.

In Wallace v. Olivarria, 2017 U.S. Dist. LEXIS 18148 (SD CA, Feb. 8, 2017), a California federal district court dismissed an inmate's claim that a change in the schedule for his prison job violated his right to practice his religion.

In Martinez v. Richardson, 2017 U.S. Dist. LEXIS 18188 (ED TX, Feb. 8, 2017), a Texas federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 18515, Jan. 19, 2017) and dismissed a complaint by a Satanist inmate that he was not permitted to perform Satanic rituals or possess various items (e.g. parchment paper, candles, a robe, a bell, a wand, a chalice) needed to practice his religion.

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).