Religion Clause

Saturday, March 11, 2017

Mosque Sues Over Denial of Sewage Permit

As previously reported, last December the U.S. Department of Justice filed suit against Culpeper County, Virginia alleging that it violated the Religious Land Use and Institutionalized Persons Act by denying a sewage permit application to the Islamic Center of Culpeper. Now the Islamic Center has filed its own lawsuit making similar allegations. The complaint (full text) in Islamic Center of Culpeper v. County of Culpeper, Virginia, (WD VA, filed 3/9/2017) alleges:

The County of Culpeper ... has denied the Islamic Center of Culpeper... essential religious freedoms and equal protection under the law by refusing a “pump and haul” permit to enable ICC to construct a mosque on its own property. This Nation is founded on the principle that there will be religious freedom for all, but the County’s actions in this case violate that tenet by treating ICC differently than other similarly situated religious congregations.

WVIR reports on the lawsuit.

Friday, March 10, 2017

Hawaii Files Amended Complaint To Challenge Trump's New Travel Ban Executive Order

As reported by NPR, on Wednesday, Hawaii became the first state to sue to challenge the Trump administration's revised Executive Order imposing a 90-day suspension of entry into the United States by nationals of six Muslim-majority nations. The state's Second Amended Complaint (full text) in State of Hawaii v. Trump,(D HI, filed 3/8/2017), alleges that the new travel ban violates the Establishment Clause by having the purpose and effect of disfavoring Islam, and violates the equal protection clause by discriminating on the basis of religion and/or national origin, nationality, or alienage. It also contends that the Executive Order substantially burdens the exercise of religion in violation of the Religious Freedom Restoration Act, contending:

Among other injuries, some non-citizens currently outside the United States cannot enter the United States to reunite with their families or religious communities. Religious communities in the United States cannot welcome visitors, including religious workers, from designated countries. And some non-citizens currently in the United States may be prevented from travelling abroad on religious trips, including pilgrimages or trips to attend religious ceremonies overseas, if they do not have the requisite travel documents or multiple-entry visas.

[Thanks to Tom Rutledge for the lead.]

Church May Move Ahead With RLUIPA Objections To Denial of Demolition Permit

Village of West Dundee v. First United Methodist Church of West Dundee, (IL App., March 7, 2017), involves a church's attempt to obtain a permit to demolish a building located in the Village's Historic District. The Church used the building as a parsonage until it fell into disrepair. The Village sought to have the church repair the building instead of demolish it. The Church, in a counter complaint, alleged that denial of a demolition permit imposed a substantial burden in violation of the Religious Land Use and Institutionalized Persons Act, amounted to unequal treatment under RLUIPA and constituted an inverse condemnation. The appeals court held that the trial court should not have dismissed the Church's counter complaint because it sufficiently stated several claims and was not barred on failure-to-exhaust grounds.

Thursday, March 09, 2017

Photographer Challenges Public Accommodation Law

Earlier this week a suit was filed in a Wisconsin state trial court challenging Madison City Code § 39.03(5) which makes it illegal for public accommodations to deny “equal enjoyment” because of someone’s sexual orientation or political beliefs or to publish “any communication” that denies facilities or that conveys a person’s patronage is “unwelcome, objectionable or unacceptable” because of someone’s sexual orientation or political beliefs. It also challenges Wis. Stat. §106.52 that has similar provisions regarding sexual orientation. The complaint (full text) in Amy Lynn Photography Studio, LLC v. City of Madison, (WI Cir. Ct., filed 3/7/2017), contends that these legal provisions impede the ability of photographer Amy Lynn to rely on her Christian religious beliefs in deciding which clients to offer her visual storytelling service:

Amy loves to photograph and post about weddings so that others can see God’s love and character displayed in the beauty of marriage. Amy also wants to photograph for and post about pro-life pregnancy health clinics so that others can see God’s love and character displayed in the sanctity of life. These desires have grown as Amy has seen our culture increasingly question the value of marriage and the sanctity of human life.

To counteract that trend, Amy not only promotes certain content, she avoids certain content. Amy can hardly promote her beliefs while glamorizing contrary ideas. Amy therefore cannot photograph or write about things celebrating pornography, racism, violence, abortion, or any marriage besides marriage between one man and one woman, such as same-sex marriage. Nor can she photograph or write about organizations that promote those beliefs.

But Madison’s and Wisconsin’s public accommodation laws forbid that freedom.

An ADF press release announced the filing of the lawsuit.

Wednesday, March 08, 2017

100 Senators Call For Action On Jewish Community Center Bomb Threats

All 100 members of the U.S. Senate yesterday signed a letter (full text) to the Attorney General, the Secretary of Homeland Security and the Director of the FBI calling for "swift action with regard to the deeply troubling series of anonymous bomb threats made against Jewish Community Centers (JCCs), Jewish Day Schools, Synagogues and other buildings affiliated with Jewish organizations or institutions across the country." Sen. Gary Peters issued a press release announcing the letter. Politico called the letter "a rare moment of bipartisanship."

Court Rejects RFRA Challenge To Dakota Access Pipeline

In Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, (D DC, March 7, 2017), the D.C. federal district court denied a preliminary injunction requested by the Cheyenne River Sioux Tribe which objects to the presence of oil in the pipeline under Lake Oahe. It asserted a claim under RFRA that the easement under the lake will cause irreparable harm to its members’ religious exercise. The court held first:

Because of the Plaintiff’s delay in raising this religious-exercise objection and the negative impact of that delay on the Corps and Dakota Access, the Court concludes that the requested preliminary-injunctive relief is barred by laches.

Moving to the merits, the court also concluded that the Tribe has failed to demonstrate a likelihood of success, saying in part:

The government action here — i.e., granting the easement to Dakota Access and thereby enabling the flow of oil beneath Lake Oahe — does not impose a sanction on the Tribe’s members for exercising their religious beliefs, nor does it pressure them to choose between religious exercise and the receipt of government benefits. Cheyenne River argues that whether it has been subjected to such sanction or pressure is irrelevant ... and contends instead that it is sufficient for purposes of showing substantial burden that the effect of the government’s action is to prevent the Tribe’s members from performing required religious sacraments at Lake Oahe.... That argument, however, is directly at odds with Supreme Court precedent.

The Hill reports on the decision.

Pennsylvania Diocese Reaches Agreement With Prosecutors On New Child Protection Measures

As previously reported, a year ago a Pennsylvania Grand Jury filed a lengthy Report on sexual abuse of children by Pennsylvania Catholic clergy. On Monday, the U.S. Attorney's Office for the Western District of Pennsylvania and the Diocese of Altoona-Johnstown announced a memorandum of understanding on reforms by the Diocese, summarizing the core reforms as follows:

The creation of an independent, multidisciplinary oversight board;
The retention of an outside expert to develop a new, comprehensive child abuse prevention program;
A reporting protocol that requires the Diocese to report allegations of child sexual abuse to law enforcement within twelve hours after receipt; and
Counseling and support services for victims by qualified and independent mental health professionals chosen by the victims.

Reporting on the new agreement, AP says that it also requires the Diocese to immediately take priests accused of abuse out of positions where they have contact with minors, and place them on leave within 24 hours.

Revised Settlement Agreement Reached In Suits On NYPD Surveillance of Muslims

The ACLU on Monday announced a revised settlement agreement in two cases involving the New York Police Department's surveillance of Muslims. As previously reported, last November a federal district court judge rejected an initial settlement agreement's modifications of the so-called Handschu Guidelines that grew out of a consent decree in an earlier case on NYPD surveillance activities. The agreement announced Monday responds to the judge's concerns. The ACLU describes the changes as follows:

Under the new enhancements, the civilian representative has even greater authority, independence, and responsibility. She is empowered to report to the court at any time if there are violations of the Handschu Guidelines, is required to report systematic violations, and must report to the court on an annual basis. The mayor is prohibited from abolishing the civilian representative position without judicial approval, and abolition by order of the court is only permitted if there have not been systemic violations of the Handschu Guidelines for the preceding three years. The civilian representative is specifically authorized to review not just the opening or extension of investigations, but also how they are conducted. In addition, the civilian representative will review the propriety of the use of undercover officers or confidential informants — a source of great concern to communities.

Wyoming Supreme Court Censures Judge Who Refused To Perform Same-Sex Marriages

In a 3-2 opinion yesterday, the Wyoming Supreme Court held that a judge who, because of religious objections, refuses to perform same-sex marriages violates the Wyoming Code of Judicial Conduct. In Neely v. Wyoming Commission on Judicial Conduct and Ethics, (WY Sup. Ct., March 7, 2017), Justice Fox wrote for the majority, saying in part:

This case is not about same-sex marriage or the reasonableness of religious beliefs.... This case is also not about imposing a religious test on judges. Rather, it is about maintaining the public’s faith in an independent and impartial judiciary that conducts its judicial functions according to the rule of law, independent of outside influences, including religion, and without regard to whether a law is popular or unpopular.

Responding to petitioner's free exercise argument, the majority stated:

Allowing Judge Neely to opt out of same-sex marriages is contrary to the compelling state interest in maintaining an independent and impartial judiciary.

However, rejecting the Commission's recommendation that Judge Neely be removed from office, the majority said:

Weighing these factors, we find that Judge Neely’s misconduct warrants a public censure. We further find that Judge Neely must perform her judicial functions, including performing marriages, with impartiality. She must either commit to performing marriages regardless of the couple’s sexual orientation, or cease performing all marriage ceremonies.

Justice Kautz, joined by Justice Davis, dissented, saying in part:

The majority’s position that Judge Neely violated Rule 1.2 is based on the mistaken conclusion that Judge Neely refused “to follow the law of the land.” As discussed above, the undisputed evidence shows that Judge Neely made no such refusal. She did not state that she would deny marriage to same sex couples, but rather said she would assist such couples in finding someone to perform their civil marriage ceremony. The law does not require Judge Neely personally to perform every marriage.

Focusing on the majority's free exercise argument, the dissenters said in part:

Apparently some individuals might find it offensive that Judge Neely said she would decline to personally perform a same-sex marriage and instead would refer them to someone else. There is no compelling state interest in shielding individuals from taking such an offense.

AP reports on the decision. [Thanks to Gabe Rusk for the lead.]

Tuesday, March 07, 2017

Trump Issues More Focused Travel Ban and Refugee Restrictions

As reported by the Washington Post, yesterday President Trump issued a narrower and more focused Executive Order (full text) imposing a 90-day suspension of entry into the United States by nationals of six Muslim-majority nations-- Iran, Libya, Somalia, Sudan, Syria and Yemen. Iraqi nationals are no long included in the travel ban, though they may be subjected to increased scrutiny. The Order justifies this list of nations:

Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government's willingness or ability to share or validate important information about individuals seeking to travel to the United States. Moreover, the significant presence in each of these countries of terrorist organizations, their members, and others exposed to those organizations increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States....

This new Order exempts, among others, lawful permanent residents of the U.S. and dual nationals traveling on other country passports. The Order comes as the President's broader Order issued in January remains tied up in the courts. Yesterday's Order begins with a lengthy section setting out justifications for the earlier Order. Section 1.(b)(iv) lays out the Administration's argument against charges that the earlier Order favored Christian refugees over others:

Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities -- whoever they are and wherever they reside -- to avail themselves of the USRAP in light of their particular challenges and circumstances.

Like the earlier Order, the new one suspends refugee entry of 120 days and limits the number of refugees in fiscal 2017 to 50,000. However, in the new Order Syrian refugees are not singled out for a longer suspension.

Court Awards Nominal Damages Over School's Live Nativity Scene Show

In Freedom From Religion Foundation v. Concord Community Schools, (ND IN, March 6, 2017), an Indiana federal district court awarded nominal damages totaling $10 and issued a declaratory judgment concluding that Concord High School's Christmas Spectacular as performed in 2014 and as proposed to be performed in 2015 violated the Establishment Clause. The shows included a living Nativity scene. After rejecting the school's mootness arguments, the court ruled:

The 2014 version of the Christmas Spectacular presents an even clearer case. Not only did this version of the show include the same extended living nativity scene as the proposed-2015 show, in which the nativity scene was emphasized unlike any other aspect of the show, it included a narration consisting of Bible passages read by a faculty member, telling the story of Jesus’ birth. It also lacked any context suggesting an educational or cultural purpose for this presentation, and instead focused solely on the Christmas holiday, and in particular, the religious content of that holiday. The message of endorsement conveyed by this version of the show was unmistakable. Indeed, at no point in this litigation has the School presented any argument in defense of this version of the show.

FFRF issued a press release announcing the decision. (See prior related posting.)

Monday, March 06, 2017

Supreme Court Remands Transgender Bathroom Case

The U.S. Supreme Court today issued an order (Order List) in Gloucester County School Board v. G.G., (Docket No. 16-273), the high profile Title IX transgender bathroom case, sending the case back to the 4th Circuit. The Order reads:

The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.

In February the Trump Administration withdrew the Guidance document that had been issued by the Obama Administration. (See prior posting). That withdrawn Guidance document took the position that Title IX requires that students be allowed to use rest rooms and locker rooms consistent with their gender identity. New York Times reports on the Supreme Couirt's action.

Sunday, March 05, 2017

Recent Prisoner Free Exercise Cases

In Shehee v. Ahlin, (9th Cir., Feb. 27, 2017), the 9th Circuit affirmed the dismissal of a civil detainee's complaint regarding problems in connection with a requested religious diet.

In Sariaslan v. Rackley,(9th Cir., Feb. 28, 2017), the 9th Circuit held that the district court had overlooked a Muslim inmate's allegations that he was blocked without good cause from receiving food that he purchased for Ramadan.

In Herbert v. Balducci, (9th Cir., March 1, 2017), the 9th Circuit affirmed dismissal of an inmate's First Amendment claims related to the denial of Alcoholics Anonymous’ Big Book while in disciplinary segregation.

In Register v. Helder, 2017 U.S. Dist. LEXIS 26006 (WD AR, Feb/ 24, 2017), an Arkansas federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 26909, Feb 2, 2017), and dismissed an inmate's complaint regarding his desire to be baptized by a Jehovah's Witness.

In Rolph v. Richardson, 2017 U.S. Dist. LEXIS 27534 (D MD, Feb. 28. 2017), a Maryland federal district court held that a Jewish inmate's religoius rights were not violated when he was required to provide the name of his Rabbi and synagogue to be approved for a kosher diet.

In Cherry v. Corizon Health, Inc., 2017 U.S. Dist. LEXIS 27654 (SD IN, Feb. 28, 2017), an Indiana federal district court rejected an inmate's complaint that his rights were violated when he was forced to receive injections of antipsychotic medication because he was on a religious fast. The court found that he had not shown that refusing 20 consecutive meals, thereby endangering his health, was a practice of his religion.

In Jones v. West, 2017 U.S. Dist. LEXIS 27880 (ED WI, Feb. 27, 2017), a Wisconsin federal district court ruled that a Muslim inmate needed to file an amended complaint over a change in sign-up policy for Ramadan meals.

In Mueller v. Mesojedec, 2017 U.S. Dist. LEXIS 27414 (D MN, Feb. 27, 2017), a Minnesota federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 28119, Jan. 6, 2017) and dismissed without prejudice claims by civilly committed sex offenders that their ability to practice their Asatru faith in various ways was impeded.

In Carawan v. Mitchell, 2017 U.S. Dist. LEXIS 28832 (D NC, Feb. 28, 2017), a North Carolina federal district court allowed a Muslim inmate to move ahead with his complaint that prison authorities refused to set up a zakat fund so he could practice charity.

In Berger v. Burl, 2017 U.S. Dist. LEXIS 27708 (ED AR, Feb. 28, 2017), an Arkansas federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 28760, Jan. 19, 2017), finding that questions of fact remain as to an inmate's claims that allowing beards and long hair for religious but not secular reasons violated the Establishment Clause, and allowing long hair only for female inmates denied him equal protection.

No Bivens Claim By Vet Denied Psychological Care Because of Anti-Gay Views

In Waksmundski v. Williams, (SD OH, Feb. 27, 2017), Marine Corps veteran John Waksmundski who had been receiving psychological counseling for a number of years at a VA Hospital from defendant Dr. Crystal Williams sued when Williams excluded him from a new therapy group she was forming. She also refused to serve any longer as his counselor. Waksmundski claims that the exclusion flowed from statements he made in a group therapy session expressing his opposition, based on his Catholic religious beliefs, to gays in the military and gay marriage. The denial of care created significant psychological damage. Waksmundski sued claiming violations of his 1st Amendment speech and religion rights as well as his equal protection rights under the 14th Amendment. The court dismissed his claims, holding that the Veterans’ Judicial Review Act "is a comprehensive remedial scheme that precludes Bivens claims for damages against VA employees premised on the assertion that the employees denied, or interfered, with a party’s benefits."

Saturday, March 04, 2017

Trump Emphasizes His Call For School Choice

As reported by the Orlando Sentinel, yesterday President Trump visited St. Andrew Catholic School in Orlando, Florida as part of a trip focusing on school choice. In his remarks (full text) prior to a closed-door round table, the President said in part:

St. Andrews Catholic School represents one of the many parochial schools dedicated to the education of some of our nation's most disadvantaged children. But they're becoming just the opposite very rapidly through education and with the help of the school choice programs. This month, we commemorate the thousands of peaceful activists for justice who joined Martin Luther King on the march from Selma to Montgomery. And that day, Reverend King hoped that inferior education would become, as he said, "a thing of the past." And we're going to work very much for the future and what he predicted would be with the future. As I've often said in my address to Congress and just about anyplace else I can speak, education is the civil rights issue of our time. And it's why I've asked Congress to support a school-choice bill.

Friday, March 03, 2017

House Task Force On Anti-Semitism Sends Suggestions To Trump

Yesterday the eight co-chairs of the U.S. House of Representatives Bipartisan Task Force for Combating Anti-Semitism sent a letter (full text) to President Trump suggesting three specific steps to improve the government's response to anti-Semitism:

Ensure that the Civil Rights Division of the Department of Justice has access to the necessary resources and information to fully investigate alleged anti-Semitic crimes and ensure the perpetrators are brought to justice.

Ensure that a mechanism exists to coordinate inter-agency detection of and response to new anti-Semitic crimes.

Evaluate growing anti-Semitism online, particularly incitement to violence, and devise a comprehensive policy response.

Times of Israel reports on the letter.

2nd Circuit Hears Arguments On Whether Money Damages Are Available Under RFRA

The U.S. 2nd Circuit Court of Appeals on Wednesday heard oral arguments (MP3 audio of full arguments) in Tanvir v. Comey. In the case, Muslim plaintiffs sued claiming that when they refused to become FBI informants, partly because doing so would violate their religious beliefs, the government retaliated by placing them on the No-Fly List. The district court held that RFRA does not provide for money damages against federal officers in their personal capacities. (See prior posting.) Courthouse News Service reports on the oral arguments in the appeal of that decision.

Religious Coalitions Take Contrasting Positions As Amici In Transgender Bathroom Case

Broad coalitions of religious groups have, through amicus briefs, now weighed in on opposite sides of the battle over transgender rights and Title IX that will be argued before the U.S. Supreme Court on March 28 in Gloucester County School Board v. G.G.(SCOTUSblog case page). A brief (full text) filed in January by the U.S. Conference of Catholic Bishops; Union of Orthodox Jewish Congregations; National Association of Evangelicals; Ethics and Religious Liberty Commission of the Southern Baptist Convention; The Church of Jesus Christ of Latter-day Saints; The Lutheran Church–Missouri Synod; and Christian Legal Society argues in part:

Major religious traditions—including those represented by amici—share the belief that a person’s identity as male or female is created by God and immutable. That belief is contradicted by the U.S. Department of Education’s interpretation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a)....

Interpreting Title IX’s prohibition on sex discrimination as an implicit ban on gender identity discrimination would undermine the ability of religious organizations to govern their own institutions consistent with their tenets. Maintaining religious schools, colleges, and universities that reflect the faith of their sponsoring religious organizations would be in jeopardy. But also, because federal civil rights laws for employment and housing contain the same prohibition on sex discrimination as Title IX, a misstep in this case could threaten religious liberty across a broad range of circumstances, including employment, housing, and public accommodations.

Meanwhile, a brief (full text) filed yesterday on behalf of 15 religious organizations (Protestant, Jewish and Muslim) and more than 1800 faith leaders took a different position, arguing in part:

The arguments of religious amici supporting Petitioner are ultimately not about religious freedom at all. A high school boy simply wanting to use the same restroom as his classmates at a public school poses no threat to anyone’s religious exercise or expression. Rather, these religious actors seek to enforce a kind of religious orthodoxy that rejects the fundamental existence and dignity of transgender persons. Permitting such religious views to inform the scope of civil rights law enforcement would violate the Establishment Clause both by enshrining religion in secular law and by favoring particular religious views and the views of particular institutions over those espoused by the undersigned Amici.

Huffington Post has more on this brief.

Krishna Community Reaches Agreement Over Pipeline Route On Sacred Land

As reported by the Pittsburgh Post-Gazette, last Tuesday a lawsuit was filed in federal district court in West Virginia by the New Vrindaban Krishna community claiming that the proposed shale gas Rover Pipeline will cut through sacred property that holds two of the community's seven sacred temples. But The Intelligencer reports that as a hearing date arrived the parties engaged in negotiations and yesterday it was announced by the pipeline developers that an agreement had been reached. An Energy Transfer Partners spokeswoman said:

We were able to agree on compensation for the right of way and most importantly, agree on minor route changes that avoided all sacred sites and mitigated any impact to the environment. This is the result of all parties being willing to come together to openly and effectively communicate to solve an issue. This clearly demonstrates that infrastructure and sacred sites can co-exist in this country.

Thursday, March 02, 2017

Survivor Resigns In Protest From Pontifical Commission On Protecting Minors

In a written statement yesterday, Marie Collins announced that she has resigned in protest from Pope Francis' Pontifical Commission for the Protection of Minors. As reported by National Catholic Reporter, Collins was one of two clergy sex abuse survivors appointed to the Commission in 2014. The other abuse victim member was placed on leave last year because of friction with other Commission members. The only other abuse survivor on the Commission, Englishman Peter Saunders, took a leave of absence last year after friction over his criticisms of the Pope. In her statement yesterday explaining her resignation, Marie Collins said in part:

The reluctance of some in the Vatican Curia to implement recommendations or cooperate with the work of a commission when the purpose is to improve the safety of children and vulnerable adults around the world is unacceptable....

The last straw for me, on top of the refusal to cooperate on the Safeguarding Guidelines, has been the refusal, by the same dicastery, to implement one of the simplest recommendations the Commission has put forward to date.

Last year at our request, the pope instructed all departments in the Vatican to ensure all correspondence from victims/survivors receives a response. I learned in a letter from this particular dicastery last month that they are refusing to do so.

Suit Says City Misled Public About Scope of Ordinance Adding LGBT Protections

Liberty Counsel announced yesterday that it has filed a lawsuit challenging the validity of recent amendments to the Jacksonville, Florida Human Rights Ordinance. The complaint (full text) in Parsons v. City of Jacksonville, Florida, (FL Cir. Ct., filed 3/1/2017), alleges that amendments adding "sexual orientation" and "gender identity" to the "protected categories" in the Jacksonville's existing nondiscrimination laws were improperly adopted. Florida state law provides:

No ordinance shall be revised or amended by reference to its title only. Ordinances to revise or amend shall set out in full the revised or amended act or section or subsection or paragraph of a section or subsection.

The new lawsuit contends that the amendments to the Human Rights Ordinance failed to set out the provisions that were being amended, and charges that "the violations result from the intentional omission of plain and obvious legal requirements, by the ordinance authors and sponsors, to deceive the Jacksonville public, City Council, and Mayor as to the true contents and scope of the HRO."

Suit Over Priest's Breach of Confessional Secrecy Is Dismissed

In Sonnier v. Roman Catholic Diocese of Lafayette, 2017 U.S. Dist. LEXIS 26498 (WD LA, Feb. 23, 2017), a Louisiana federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 27235, Jan. 18. 2017) and dismissed an action alleging invasion of privacy and defamation brought by a member of a Catholic church who claimed that a priest violated his 1st Amendment rights by disclosing plaintiff's use of the confessional to communicate with individuals involved in a civil litigation matter. The court concluded that the 1st Amendment does not apply because no state actor was involved in the conduct. The court went on to hold that in addition:

Plaintiff's claims fall within the scope of internal religious affairs as they are predicated on: (1) the breach of the sacramental seal of confession, as defined by the Roman Catholic Church; and (2) Bishop Jarrell's failure to remedy the breach in accordance with church doctrine. In order to discern whether Plaintiff has asserted meritorious claims against Defendants, the Court would have to interpret church doctrine relating to the sacrament of confession and otherwise encroach upon the internal affairs of the Roman Catholic Church. Application of long-standing First Amendment jurisprudence, therefore, mandates that this Court refrain from considering Plaintiff's claims.

Wednesday, March 01, 2017

6th Circuit Grants En Banc Review In Legislative Prayer Case

The U.S. 6th Circuit Court of Appeals on Feb. 27 granted en banc review in Bormuth v. County of Jackson. In the case, a 3-judge panel 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. AP reports on the grant of review by the full court which has the effect of vacating the panel decision while review is pending. [Thanks to Tom Rutledge for the lead.]

Supreme Court Clerk Chastises Amici For Wording In Brief On Transgender Rights

Over three dozen amicus briefs have been filed with the U.S. Supreme Court in Gloucester County School Board v. G.G. At issue is whether Title IX requires schools to allow transgender students to use bathrooms consistent with their gender identity. Slate reports that letters dated Feb. 24 from the Clerk of the Supreme Court (full text 1, 2) to two amici supporting petitioners have chastised them for referring to the transgender male student involved as "her." The Clerk wrote Liberty Counsel and Center for Constitutional Jurisprudence saying:

... the covers of your amicus briefs in this case identify the respondent as “G.G., by her next friend and mother, Deirdre Grimm.” In fact, the caption for the case in this Court, as in the lower courts, identifies the respondent as “G.G., by his Next Friend and Mother, Deirdre Grimm.” (Emphasis added.) Under Rule 34, your cover is to reflect the caption of the case. Please ensure careful compliance with this requirement in this and other cases in the future.

Tuesday, February 28, 2017

Pakistan Supreme Court Takes Action Against Fraudulent Hajj Tour Operators

In Hussain v. State, (Pakistan Sup. Ct., Feb. 27, 2017), the Supreme Court of Pakistan denied bail to defendants charged with defrauding a large number of Muslims seeking to perform Hajj by creating a fake travel agency that absconded with their travel funds. The Court explained:

This nature of frauds have become so common that, every year, before the Hajj Season commences, innocent and rustic peoples are looted by various so called agencies including the unauthorized tour operators, of which judicial notice is required to be taken to curb the increasing menace of frauds practiced in religious and pious matters, therefore, Courts are required to treat these cases differently and such frauds must be brought to halt.

The Court strongly criticized government agencies for failing to enforce the law and "allow[ing] the fraudsters to commit such crimes with impunity." In an attempt to prevent such frauds in the future, the Court ordered the Ministry of Religious Affairs

to update its website in English, Urdu and all local languages, conveniently readable and understandable by the illiterate poor people, showing all the details about the duly approved Hajj & Umrah Tour Operators, warning the public at large that except those mentioned on the website, no other agency or Tour & Hajj Operator is authorized to make booking or collect money for sending people to perform Hajj or Umrah. At the same time, the said Ministry shall give wide publicity to such lists through electronic and print media and also through handbills/notifications in different languages....

The Court also ordered further disclosures to travelers and indemnity bonds by authorized Hajj tour operators. Today's Express Tribune reports on the decision.

Catholic High School Loses Ministerial Exception Defense In Suit By Former Teacher

Monrovia Patch reports that a California state trial court has rejected the ministerial exception defense raised by a Glendora, California Catholic high school in a suit by a former teacher who was fired for marrying his same-sex partner shortly after the U.S. Supreme Court's Obergefell decision. The court ruled that Kenneth Bencomo can move ahead with his wrongful termination, Labor Code and breach of contract claims against St. Lucy's Priority High School. The court ruled that while the high school is a religious institution, Bencomo produced substantial evidence that that did not teach any religious classes. He taught only studio art, dance, English and yearbook and magazine courses. The school did not require that religion be part of his classes, and he never led prayers or referenced Catholic doctrine.

Muslim Organization Gets Rulings In Its Favor In Zoning Challenge

In an opinion covering two suits-- one by a Sufi Muslim religious organization and the other by the United States--, an Illinois federal district court concluded that the city of Des Plaines, Illinois may well have violated RLUIPA and the 1st and 14th Amendments, as well as state law, in denying a zoning amendment that would allow the Muslim group to use property it had purchased for religious and educational purposes. In Society of American Bosnians and Herzegovinians v. City of DesPlaines, (ND IL, Feb. 26, 2017), the court denied summary judgment to both sides, but concluded that a reasonable fact finder could infer that the City imposed a substantial burden on the religious organization's free exercise of religion and that the city's parking concerns did not constitute a compelling interest. The court also concluded that the city violated RLUIPA's equal terms provision, and that there is a genuine dispute on whether the city acted with discriminatory intent. Cook County Record reports on the decision.

Monday, February 27, 2017

Cert. Denied In Church Retirement Plan Fiduciary Duty Case

The U.S. Supreme Court today denied review in Evangelical Lutheran Church v. Bacon (Docket No. 16-910, cert. denied 2/27/2017). (Order List.) In the case, a Minnesota state court of appeals held that the First Amendment does not prevent a civil court from adjudicating a challenge to the manner in which the Lutheran Church retirement plans were managed. Plan participants claimed breach of fiduciary duty, breach of trust, and fraud and concealment in the administration and management of the Plans. (See prior posting.)

Canada's Supreme Court Will Review Two Trinity Western Law School Cases

On Feb. 23, the Supreme Court of Canada agreed to hear appeals in Trinity Western University v. Law Society of Upper Canada (Ontario) (summary of case) and Law Society of British Columbia v. Trinity Western University, et. al. (British Columbia) (summary of case). At issue is the question of whether the Law Societies in various provinces can refuse to accredit Trinity Western University Law School because of its code of conduct based on evangelical Christian teachings. In particular, the law school refuses to recognize same-sex marriages and requires students to sign its Community Covenant that, among other things, prohibits sexual intimacy outside of a marriage between one man and one woman. TaxProf Blog has more on the Supreme Court's action. [Thanks to Steven H. Sholk for the lead.]

Kashmir Court Employees Must Offer Regular Prayers At Proper Time To Get Raises

According to WIO News, the new Chief Justice of the Supreme Court of Pakistan-Occupied-Kashmir has told court employees that their annual salary increases will turn on their offering prayers regularly and at the prescribed times. Ibrahim Zia, who was sworn in Saturday as Chief Justice, instructed that offering prayers is now mandatory for all court employees. He also told employees they must work with dedication, honesty and regularity to ensure speedy justice to the public.

Recent Articles of Interest

From SSRN:

Satvinder Juss, Back to the Future: Justiciability, Religion, and the Figment of 'Judicial No-Man's Land', (Public Law Issue 2, April 2016, pp. 198-206).
John D. Inazu, Law, Religion, and the Purpose of the University, (Washington University Law Review, Forthcoming).
Giulia Capacci, In Vitro Fertilization, the Catholic Church and National Survival: The Discursive Construction of Reproductive Rights in Poland, (February 3, 2017).
Barbara P. Billauer, The Secrets of Jethro - Father of Jurisprudence, Patriarch of the Druze, Unifier of Legal Systems, (February 21, 2017).
Thomas J. McSweeney, Salvation by Statute: Magna Carta, Legislation, and the King's Soul, (William & Mary Bill of Rights, Vol. 25, No. 2, 2016).

From SmartCILP:

Deepa Das Acevedo, Temples, Courts, and Dynamic Equilibrium in the Indian Constitution, 64 American Journal of Comparative Law 555-581 (2016).
Shlomo Pill, Jewish Law Antecedents to American Constitutional Thought, [Abstract], 85 Mississippi Law Journal 643-696 (2016).
Lua Kamal Yuille, Creating a Babel Fish for Rights & Religion: Defining 'Rights' Through Sacred Texts, [Abstract], 25 Transnational Law & Contemporary Problems 309-361 (2016).
Nelson Tebbe. McElroy Lecture. How To Think About Religious Freedom In an Egalitarian Age, [Abstract], 3 University of Detroit Mercy Law Review 353-367 (2016).
Symposium: Global Legal and Religious Perspectives on Elder Care. Introduction by Amy Zeittlow and Naomi Cahn; articles by Israel (Issi) Doron, Charles Foster, M. Christian Green, Nancy J. Knauer, Thomas G. Long, Rabbi Edith M. Meyerson, Diane E. Meier, Allison Kestenbaum, Rahimjon Abdugafurov, Beverly Moran and Xing Guang. 31 Journal of Law & Religion 115-226 (2016).

Sunday, February 26, 2017

Recent Prisoner Free Exercise Cases

In Heyer v. U.S. Bureau of Prisons, (4th Cir., Feb. 23, 2017), the U.S. 4th Circuit Court of Appeals allowed a deaf inmate to move ahead with his claim that his free exercise rights were infringed by failure to provide him a sign-language interpreter for religious services.

In Crowder v. Lariva, 2017 U.S. Dist. LEXIS 23687 (SD IN, Feb. 21, 2017), an Indiana federal district court held that a prison chaplain who was sued by a Hebrew-Israelite inmate demonstrated that there is a genuine dispute of fact as to whether the denial of plaintiff's requests for a kosher diet substantially burdened his right to practice his religion because he continued to purchase non-kosher items from the commissary.

In Pruitt v. Williams, 2017 U.S. Dist. LEXIS 25044 (ED AR, Feb. 23, 2017), an Arkansas federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 25468, Feb. 2, 2017) and dismissed an inmate's complaint that as a form of punishment he was denied the right to practice his religion.

In Ali v. Haese, 2017 U.S. Dist. LEXIS 25431 (ED WI, Feb. 23, 2017), a Wisconsin federal district court allowed an inmate to proceed on his claim that he was denied participation in the 2016 Ramadan fast, but not due process and retaliation claims added in his amended complaint.

The FBI and Religion Is Studied

Salon today has posted an interesting article titled How the FBI Is Hobbled by Religious Illiteracy. Much of it is an interview with University of Pennsylvania Prof. Steven Weitzman. Introducing the interview, interviewer Emma Green says in part:

The story of the FBI and religion is not a series of isolated mishaps, argues a new book of essays edited by Steven Weitzman, a professor at the University of Pennsylvania, and Sylvester A. Johnson, a professor at Northwestern University. Over its 109 years of existence, these historians and their colleagues argue, the Bureau has shaped American religious history through targeted investigations and religiously tinged rhetoric about national security.

At times, the Bureau has operated according to an explicit vision of protecting Christianity, as it did during the tenure of J. Edgar Hoover, the longtime director of the FBI. But in other cases, it has operated with religious ignorance.

Saturday, February 25, 2017

Handling of Vaccination Exemption Request Did Not Violate Religious Rights

In Nikolao v. Lyon, (ED MI, Feb. 23, 2017), a Michigan federal district court dismissed free exercise and establishment clause challenges to the manner in which the Wayne County, Michigan Health Department handled a mother's request for an exemption for her children from the public school vaccination requirement. Michigan law permits an exemption on the basis of a parent's religious convictions or alternatively on the basis other objections to immunization. A 2014 Administrative Rule added the requirement that before an exemption will be granted, the parent must receive education from the local health department on the risks of not receiving vaccinations. The health department has prepared materials for its employees to use in attempting to persuade parents to allow vaccination, including materials to counter religious objections.

Plaintiff claims that if she wanted a religious waiver, she was required to explain her religious beliefs and discuss them with a health department nurse. When she refused, she was granted an exemption on the non-religious ground that "mom wants child to have natural immunity." Plaintiff contended that this deprived her of her religious and moral responsibility to object on account of her religion. Rejecting plaintiff's free exercise claim, the court said:

At most what Plaintiff alleges is that she was exposed to “coercion” to violate her beliefs regarding immunization for her children and “filled with lies about her faith from health department employees.” Plaintiff, however, did not yield to the nurses’ alleged pressure or lies and agree to immunize her children. She left the health department with the required and completed immunization waiver forms.

Friday, February 24, 2017

No Religious Discrimination In Suspension of Minister's Gym Membership

In Armstrong v. James Madison University, 2017 U.S. Dist. LEXIS 25014 (WD VA, Feb. 23, 2017), a Virginia federal magistrate judge recommended dismissing claims of religious discrimination and infringement of free exercise rights brought by Matthew Armstrong, a 65-year old Christian minister, after his alumnus membership in James Madison University Recreation gym was suspended. The suspension followed a complaint filed by a female student employee of the gym who claimed that comments made to her by Armstrong amounted to sexual harassment. Armstrong had told the student about his religious beliefs that allowed him to have a young wife, and asked her if she would be interested in getting to know him better with the eventual possibility of marriage.

Arkansas Supreme Court Invalidates City's LGBT Anti-Discrimination Law

In Protect Fayetteville v. City of Fayetteville, (AR Sup. Ct., Feb. 23, 2017), the Arkansas Supreme Court held that the City of Fayetteville is precluded by state statute from extending its anti-discrimination provisions to protect lesbian, gay, bisexual and transgender individuals. The Arkansas' Intrastate Commerce Improvement Act provides:

A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.

Fayetteville claimed that its expanded non-discrimination law is permitted because state laws on bullying, domestic abuse shelters and amendment of birth certificates include reference to sexual orientation and gender identity. The Court held, however, that municipalities are precluded from providing non-discrimination protection to categories beyond race, religion, national origin, gender and disability that are included in the Arkansas Civil Rights Act of 1993. Arkansas Matters reports on the decision.

Oklahoma Supreme Court Says Church Autonomy Shields Suit Over Publicity of Baptism

In a 5-3 decision in Doe v. First Presbyterian Church USA of Tulsa, (OK Sup. Ct., Feb. 22, 2017), the Oklahoma Supreme Court ruled that the church autonomy doctrine requires dismissal of a suit by a Muslim convert to Christianity challenging the church's online publicity of his baptism. Plaintiff traveled to Syria after the baptism where he allegedly was kidnapped and tortured by radical Muslims who threatened to carry out a death sentence for apostasy. The majority framed the issue as one of whether publication of the baptism on the internet is an act rooted in religious belief so that it falls within the church's ecclesiastical jurisdiction. The majority concluded:

The context of the online posting of Appellant's baptism is not secular. Appellant's tort claims all rest on an act that, per church doctrine, is an integral part of what the church considers to be the public nature of the sacrament. Because Appellant's tort claims arise from the performance of his baptism, this dispute is one over ecclesiastical rule, custom or law, and is not purely secular.....

Justices Gurich and Kauger disagreed, saying in part:

The present case does not involve a question of discipline, faith, or ecclesiastical rule decided by a church tribunal, nor does it involve an internal, administrative matter. It merely involves the Church's publication of Appellant's name on the internet. No judicial body in the Church rendered any decision that Appellant is now trying to relitigate in civil court, and ... the autonomy of an internal Church disciplinary process is not threatened. Moreover [this suit] ... satisfies an exception to the church autonomy doctrine [for serious threats to public safety, peace or order].

AP reports on the decision. (See prior related posting.)

Thursday, February 23, 2017

Belgian Court Rules Kosher Slaughter Is Protected Religious Right

Jerusalem Post reported yesterday that a court in Belgium has ruled that restricting kosher slaughtering of animals "excessively and unreasonably restricts freedom of religion and seriously harms the fundamental laws of human rights and religious rights in Belgium." The Conference of European Rabbis announced yesterday that the constitutional court of Belgium’s southern Wallonia region handed down the ruling after several legislators in the parliament of Wallonia introduced legislation to subject kosher slaughtering to the general requirement of Belgian law that animals be stunned before slaughter. [Thanks to Steven H. Sholk for the lead.]

NJ Tax Court Says Church Had Not Stopped Using Area For Religious Purposes

In Holy Trinity Baptist Church v. City of Trenton Block 26802, Lot 4, (NJ Tax Ct., Feb. 7, 2017), the New Jersey Tax Court held that the County Board of Taxation was wrong in concluding the the second floor of a church building was no longer being used for religious or charitable purposes. The court said in part:

the evidence as a whole shows that the second floor was being used for the Church's youth and member meetings albeit on a declining level due to the plaintiff's acquisition of another property. The declining frequency of such events or the undisputed fact that the Subject was being offered for sale, and the second floor was being prepared for such sale, do not establish non-use or abandonment of use of the second floor for plaintiff's tax exempt purposes.

JD Supra Business Advisor has analysis of the decision.

Settlements In Mosque's and DOJ's Suits Against Michigan City

Detroit Free Press reported yesterday that settlements have been reached in two related lawsuits against the city of Sterling Heights, Michigan over the city's denial of Special Approval Land Use application that would have allowed the American Islamic Community Center to construct a mosque on five adjoining lots in the city. One suit was brought by the Islamic Center, while the other was filed by the Department of Justice. (See prior posting.) The settlement requires the city to allow the mosque to be built, but calls for the height of the mosque's dome and spires to be reduced by approximately two feet. No amplified outdoor sound-- including the Muslim call for prayer-- will be permitted. Parking will be allowed only in the mosque's parking lot. The financial arrangements in the Islamic Center's suit are unclear. The settlement calls for the city to pay a $350,000 deductible to its insurance carrier. A Department of Justice press release yesterday says that the settlement also calls for the city to publicize its nondiscrimination policies, undergo RLUIPA training, and report periodically to the Department of Justice. The settlements must still be approved by the court.

Wednesday, February 22, 2017

Trump Administration Withdraws Obama Title IX Transgender Guidance

Today the Trump Administration withdrew the controversial Obama Administration's Guidance on rights of transgender students under Title IX. In a Joint Letter (full text) from the Department of Justice and Department of Education, the Trump Administration formally took no position on whether Title IX protects transgender students. The Letter reads in part:

These [Obama Administration] guidance documents take the position that the prohibitions on discrimination “on the basis of sex” in Title IX ... and its implementing regulations ... require access to sex-segregated facilities based on gender identity. These guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.

This interpretation has given rise to significant litigation regarding school restrooms and locker rooms....

In addition, the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.

In these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them.

The Solicitor General's Office also sent a letter (full text) to the Supreme Court notifying it of the Guidance withdrawal. Oral argument is scheduled March 28 in the Gloucester County School Board case involving the Obama Administration's interpretation of Title IX. The Supreme Court specifically granted certiorari on two issues (see prior posting), only one of which would appear to be mooted by yesterday's action. The two issues are:

... [S]hould deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?

... With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?

The New York Times reports that Education Secretary Betsy DeVos had opposed withdrawal of the Guidance that protected transgender students, but that the President sided with Attorney General Sessions. The new Joint Letter does contain a paragraph expressing concern for student rights:

Please note that this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment. The Department of Education Office for Civil Rights will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms. The Department of Education and the Department of Justice are committed to the application of Title IX and other federal laws to ensure such protection.

Both Attorney General Sessions and Secretary DeVos issued separate statements as well. Sessions' statement (full text) reads in part:

The Department of Justice remains committed to the proper interpretation and enforcement of Title IX and to its protections for all students, including LGBTQ students, from discrimination, bullying, and harassment.

DeVos' statement (full text) reads in part:

I have dedicated my career to advocating for and fighting on behalf of students, and as Secretary of Education, I consider protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America.

Today's Joint Letter only refers to the interpretation of Title IX. It is unclear how this will affect the similar interpretation of Title VII of the 1964 Civil Rights Act. The EEOC has interpreted the reference to sex discrimination in Title VII to protect transgender employees. Indeed, a December 15, 2014 Memorandum (full text) from Attorney General Holder to U.S. Attorneys takes the same position on Title VII.

French Presidential Candidate Le Pen Refuses To Wear Headscarf To Meet With Lebanese Grand Mufti

In French presidential elections, far-right National Front party leader Marine Le Pen leads in the polls for the April 23 first round, as national security has become the leading concern of voters. As of now, polls show Le Pen losing in the May runoff. (AlJazeera, Bloomberg) Le Pen has just completed a three-day trip to Lebanon where she attracted news attention when she refused to wear a headscarf for a meeting with the country's highest Sunni cleric. According to an AP report:

The headscarf incident occurred ahead of a scheduled meeting with Lebanon's grand mufti, Sheikh Abdel-Latif Derian.

Shortly after Le Pen arrived at his office, one of his aides handed her a white headscarf to put on. Following a discussion with his aides that lasted a few minutes, she refused and returned to her car.

Le Pen told reporters: "I consider the headscarf a symbol of a woman's submission. I will not put on the veil."

British Appeals Court Refuses To Extend Civil Partnerships To Heterosexual Couples

In Steinfeld & Keidan v Secretary of State for Education, (EWCA, Feb. 21, 2017), Britain's Court of Appeal, in a 2-1 decision, rejected a challenge to British law that allows same-sex couples, but not opposite-sex couples, to enter civil partnerships as an alternative to marriage. The differential treatment was challenged as a violation of the European Convention on Human Rights prohibition on discrimination (Article 14) and right to respect for private and family life (Article 8). As explained in the Court's Summary of the decision, all of the judges agreed that the ban on civil partnerships for opposite-sex couples creates a potential violation of Articles 14 and 8. However two of the three judges concluded that the limitation is permissible because it is in pursuit of a legitimate aim and is proportionate. The Secretary of State is taking further time to assess whether, since the introduction of same-sex marriage, civil partnership should be phased out or should instead be extended to opposite-sex couples. CNN reports on the decision.

In Settlement, School Will Remove Ten Commandments Monument

The Freedom From Religion Foundation announced yesterday that it has reached a successful settlement with a Pennsylvania school district in FFRF's suit seeking removal of a 6-foot tall Ten Commandments monument from a high school's lawn. The settlement agreement (full text) in Freedom From Religion Foundation, Inc. v. New Kensington Arnold School District provides that the school district will remove the monument within 30 days of the effective date of the settlement agreement. The school district's insurance company will also pay plaintiffs' attorneys fees and costs of $163,500. The suit, originally filed in 2012, went to the 3rd Circuit last year which upheld standing of at least some of the plaintiffs to bring the lawsuit. (See prior posting.)

Administrative Law Judge Sues Over Requirement To Watch LGBT Diversity Training Video

According to yesterday's Houston Press, a Social Security Administrative Law Judge has filed a federal court lawsuit claiming religious discrimination after the agency refused to accede to his religious objections to viewing a 17-minute LGBT diversity training video. In the lawsuit, ALJ Gary Suttles claims that the refusal by the Houston office's chief administrative law judge to grant him a religious accommodation and her insistence that he watch or read a transcript of the video created a hostile work environment.

Amish Drop Suit Against City Over Animal Waste Requirements

Bowling Green (KY) Daily News reported yesterday that two members of the Swartzentruber Amish community who had sued Auburn, Kentucky officials over an animal waste ordinance requiring horses to wear animal waste catching devices have now voluntarily dismissed their lawsuit. The sect's elders had ruled that it violates religious principles to comply with the requirement. (See prior posting.) Even though efforts to reach a compromise in the suit failed, plaintiffs dismissed their suit because of their discomfort with the publicity they were receiving.

Tuesday, February 21, 2017

Trump Responds To Anti-Semitic Incidents In U.S.

President Trump today in remarks (full text) after touring the National Museum of African American History and Culture gave his most explicit denunciation of the increasing number of anti-Semitic incidents in the U.S. in recent weeks. He said:

This tour was a meaningful reminder of why we have to fight bigotry, intolerance and hatred in all of its very ugly forms. The anti-Semitic threats targeting our Jewish community and community centers are horrible and are painful, and a very sad reminder of the work that still must be done to root out hate and prejudice and evil.

As reported by CNN, Trump's remarks come after 54 Jewish Community Centers in the U.S. and Canada have received 69 bomb threats. Also today, it was disclosed that more than 100 headstones at a Jewish cemetery near St. Louis were recently damaged or toppled. (CNN). The President has been criticized for his less than direct responses in two previous news conferences to questions about anti-Semitism. (e.g. Baltimore Sun editorial). Responding to the President's statement, American Jewish Committee tweeted: "Now we look forward to your plan of action."

Illinois Conversion Therapy Ban Does Not Apply To Religious Pastoral Counseling

In Pastors Protecting Youth v. Madigan, (ND IL, Feb. 15, 2017), an Illinois federal district court held that Illinois' Youth Mental Health Protection Act restricting conversion therapy does not apply to religious pastoral counseling. The Act bars mental health providers from offering conversion therapy to minors, and prohibits anyone from deceptively offering conversion therapy in trade or commerce. The court concluded that private religious counseling is not "trade or commerce". The Act was intended to apply only to mental health professionals or to those who deceptively advertise conversion therapy for commercial purposes. Christian News reports on the decision.

Texas High School Rules Force Transgender Male Wrestler To Compete In Girl's League

In Texas, high school athletics is governed by the University Interscholastic League (UIL). Rules of the UIL require student-athletes to compete as the gender listed on their birth certificate. Another rule specifically prohibits boys from wrestling girls. AP reported this week on Mack Beggs, a transgender high schooler who is transitioning from female to male who, under these rules, is required to compete as a female. Beggs won the high school regional wrestling competition after her opponent forfeited rather than wrestle Beggs. Beggs is taking testosterone as part of her transitioning. Earlier this month, the parent of another wrestler filed a lawsuit against the UIL seeking to have Beggs disqualified for using steroids, saying that allowing Beggs to wrestle girls creates a risk of bodily harm. The Texas Education Code allows steroid use when administered by a medical practitioner for a valid medical purpose.

Bob Jones University To Regain Tax Exempt Status

The State reported last week that Bob Jones University, will regain its tax exempt status on March 1, nearly 34 years after the U.S. Supreme Court decision that upheld stripping it of the exempt status. The revocation stemmed from the University's policy, which at the time it claimed was Biblically-based, to deny admission to applicants engaged in an interracial marriage or known to advocate interracial marriage or dating. The conservative Christian university dropped its interracial dating policy in 2000, but did not take steps to begin to regain full tax exempt status until 2014. It had previously created certain non-profit arms, such as its scholarship fund. But now a reorganization will place most of the university's facilities under the umbrella of its existing BJU, Inc. (formerly Bob Jones elementary School, Inc.). Some assets however will remain in a for-profit entity. This reorganization did not require formal IRS approval, but the University has had formal correspondence and conversations with IRS about the reorganization. One of the benefits of the reorganization will be that the University will move from a for-profit to a non-profit college as the Department of Education is giving added oversight to for-profit institutions. [Thanks to Scott Mange for the lead.]

Monday, February 20, 2017

Catholic Fringe Group Pushes Right-Wing Agenda

Yesterday's Detroit Free Press carries a lengthy feature article on the Ferndale, Michigan-based organization "Church Militant" which the report describes as:

a growing, Catholic fringe group hoping the forces that elected President Donald Trump will tear down the wall between church and state.

The report continues:

Church Militant broadcasts pro-life, anti-gay, anti-feminist, Islam-fearing, human-caused-climate-change-denying orthodox Catholic news on its website churchmiltant.com and through social media using high-tech, professional production studios that rival those at local TV news stations. It has 35 full-time employees (and is hiring more) who publish about 10 stories and three videos every weekday.

Its leader, Michael Voris, has compared Trump with Constantine, the Roman emperor whom he says was "not a moral man" but a "power-hungry egomaniac," but who saw it desirable to end the persecution of Christians. He was a human vessel who elevated Catholicism to the state religion, Voris said.

Sunday, February 19, 2017

House Hearing On State of Religious Liberty In U.S.

Last Thursday, the House Judiciary Committee, Subcommittee on the Constitution and Civil Justice held a hearing on "The State of Religious Liberty in America." A video of the full hearing and transcripts of the prepared testimony of the four witnesses who testified are available on the Committee's website. Testifying were representatives of the Christian Legal Society, Becket and Alliance Defending Freedom as well as Rabbi David Saperstein who until recently served as the U.S. Ambassador at-Large for International Religious Freedom. For a critical view of the hearing, see this report from Religion Dispatches.

European Court of Justice Advocate's Opinion on Tax Exemption For Catholic Church

In Congregación de Escuelas Pías Provincia Betania v. Ayuntamiento de Getafe, (CJEU, Feb. 16, 2017), an Advocate General's opinion recommended that the Court of Justice of the European Union hold that a construction tax exemption for a school building to which the Catholic Church is entitled under a 1979 agreement between Spain and the Holy See does not violate the the ban on anti-competitive state aid set out in Art. 107(1) of the Treaty on the Functioning of the European Union. The opinion allows the exemption only where any commercial educational services are merely ancillary to non-profit offerings. The exemption is allowed if at least 90% of its services are educational offerings in the context of the Church's social, cultural and educational mission. Law & Religion UK has more on the decision.

Recent Prisoner Free Exercise Cases

In Scott v. Uhler, 2017 U.S. Dist. LEXIS 18624 (ND NY, Feb. 8, 2017), a New York federal magistrate judge recommended dismissing the complaint of a number of Muslim inmates that their 1st and 14th Amendment rights were violated when they were not allowed to attend Jumm'ah services on Dec. 25, 2015.

In Taylor v. Kelley, 2017 U.S. Dist. LEXIS 18430 (ED AR, Feb. 9, 2017), an Arkansas federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 19094, Jan. 25, 2017) and dismissed a complaint by two Muslim inmates that on the last day of Ramadan their fast-breaking snack was delivered one hour late.

In Ilarraza v. Chuta, 2017 U.S. Dist. LEXIS 20057 (MD PA, Feb. 10, 2017), a Pennsylvania federal magistrate judge recommended that a now-released inmate be allowed to move ahead with his complaint that he was denied a Spanish-English interpreter so he could learn more about his Native American religion and attend religious services.

In France v. Brown, 2017 U.S. Dist. LEXIS 20183 (SD CA, Feb. 13, 2017), a California federal district court dismissed an inmate's complaint that his parole conditions that included entry into a residential treatment center subjected him to religious indoctrination and were inconsistent with his religion of "Here-and-Nowism."

In Scott v. South Carolina Department of Corrections, 2017 U.S. Dist. LEXIS 19835 (D SC, Feb. 13, 2017), a South Carolina federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 20572, Jan. 26, 2017) and dismissed an inmate's complaint about the Department of Corrections' refusal in the past to recognize Shetaut Neter as a religion. The religion is currently recognized.

In Oliver v. Adams, 2017 U.S. Dist. LEXIS 21518 (D CA, Feb. 14, 2017), a California federal magistrate judge recommended dismissing an inmate's complaint of refusals to accommodate his practice of his Shetaut Neter faith, including a Kemetic diet.

In Rountree v. Clarke, 2017 U.S. Dist. LEXIS 21776 (WD VA, Feb. 16, 2017), a Virginia federal district court dismissed a female inmate's complaint that she was not permitted to possess and use a yoga mat in her cell to practice yoga according to her Buddhist beliefs.

In Walters v. Livingston, 2017 Tex. App. LEXIS 1323 (TX App, Feb. 15, 2017), a Texas state appeals court allowed a former inmate to move ahead with his claim for damages and declaratory relief on his complaint that he was denied the right to personally smoke a "sacred ceremonial pipe" during religious ceremonies.

Saturday, February 18, 2017

In Israel, Retailer Takes Criticism For Catalog Aimed At Ultra-Orthodox Jews

As U.S. law struggles to balance free exercise rights with legal non-discrimination mandates, this story from Israel yesterday demonstrates that new permutations may well arise. The Forward and Jewish News Online report that the Swedish furniture retailer Ikea is receiving criticism for the catalog its Israeli affiliate distributed hoping to attract Haredi (ultra-Orthodox Jewish) customers. The catalog contains no photos of women. Only men and boys in clothing usually worn by religious Jews are shown using Ikea furniture. It is not unusual for Haredi newspapers to exclude photos of women.

Friday, February 17, 2017

SCOTUS Sets Oral Arguments In Trinity Lutheran Case For April 19

The U.S. Supreme Court has set oral argument in Trinity Lutheran Church v. Pauley for April 19. (Argument calendar.) In the case, the 8th Circuit rejected arguments that Missouri's Blaine Amendments violate the U.S. Constitution's 1st and 14th Amendments. At issue was the denial by Missouri's Department of Natural Resources of a grant application by Trinity Church for a Playground Scrap Tire Surface Material Grant that would have allowed it to resurface a playground at its day care and preschool facility on church premises. (See prior posting.) The Court granted certiorari in the case over a year ago. The delay in setting the case for oral argument has led to speculation that the Justices were hoping to hold off hearing the case until a replacement for the late Justice Scalia brought the Court up to its full complement. They may have succeeded since, as reported by The Hill, the Senate Judiciary Committee has now set March 20 as the date for hearings on Judge Neil Gorsuch's nomination to begin. SCOTUSblog's case page has links to all the briefs filed in the case and to commentary on the case.

Jewish Groups Criticize Trump's Response To Questions About Anti-Semitism

JTA reports that the American Jewish Committee and the Anti-Defamation League have issued statements criticizing President Donald Trump's response at his news conference yesterday to a question from reporter Jake Turx of Ami Magazine regarding anti-Semitism. Here is a transcript of much of the exchange taken from the White House's full transcript of the news conference:

Q ... [W]hat we are concerned about, and what we haven’t really heard be addressed is an uptick in anti-Semitism and how the government is planning to take care of it. There have been reports out that 48 bomb threats have been made against Jewish centers all across the country in the last couple of weeks. There are people who are committing anti-Semitic acts or threatening to --

THE PRESIDENT: You see, he said he was going to ask a very simple, easy question. And it’s not. It’s not. Not a simple question, not a fair question. Okay, sit down. I understand the rest of your question.

So here’s the story, folks. Number one, I am the least anti-Semitic person that you’ve ever seen in your entire life. Number two, racism -- the least racist person. In fact, we did very well relative to other people running as a Republican....

... See, he lied about -- he was going to get up and ask a very straight, simple question. So you know, welcome to the world of the media. But let me just tell you something -- that I hate the charge. I find it repulsive. I hate even the question because people that know me -- and you heard the Prime Minister, you heard Netanyahu yesterday -- did you hear him, Bibi? He said, I’ve known Donald Trump for a long time, and then he said, forget it.

So you should take that, instead of having to get up and ask a very insulting question like that.

The AJC's statement also criticized Trump's non-responsiveness to a similar question at his news conference (full transcript) on Wednesday with Israeli Prime Minister Netanyahu.