Recent Articles of Interest

From SSRN:

• Rafael Domingo, Theology and Jurisprudence. A Good Partnership?, (Journal of Law and Religion, 32, 2017, Forthcoming).
• Rafael Domingo, The Constitutional Justification of Religion, (March 9, 2017).
• Christine P. Bartholomew, Exorcising the Clergy Privilege, (Virginia Law Review, Vol. 103, 2017).
• Paul H.Robinson and Research Group, Criminal Law, Draft Report of the Somali Criminal Law Recodification Initiative, (U of Penn Law School, Public Law Research Paper No. 17-13 (2017)).
• Elizabeth Sepper, Zombie Religious Institutions, (Northwestern University Law Review, Vol. 112, 2018, Forthcoming).
• Peter H. Schuck, One Nation Undecided: Clear Thinking About Five Hard Issues that Divide Us, (Princeton University Press, March 2017).
• Lisa Mathews, Free Exercise and Third-Party Harms: Why Scholars Are Wrong and RFRA Is Right, (Trinity Law Review, Forthcoming).

From elsewhere:

• Marsha B. Freeman, Holier Than You and Me: ‘Religious Liberty’ Is the New Bully Pulpit and Its New Meaning Is Endangering Our Way of Life, 69 Arkansas Law Review 881 (2017).
•  Tara Smith, What Good Is Religious Freedom? Locke, Rand, and the Non-Religious Case for Respecting It, 69 Arkansas Law Review 944 (2017).

Ministerial Exception Does Not Apply To Exercise Science Teacher At Christian University

In Richardson v. Northwest Christian University, (D OR, March 16, 2017), an unmarried professor of exercise science at a Christian university sued for discrimination after she was fired because she became pregnant out of wedlock and refused to either marry her child's father or stop living with him.  The school contended that the professor's action were inconsistent with its policy that faculty are to live their lives in conformity with Biblical Christianity.  The court held that the "ministerial exception" doctrine does not require it to dismiss the lawsuit, saying in part:

[Plaintiff] was expected to integrate her Christianity into her teaching and demonstrate a maturing Christian faith. But any religious function was wholly secondary to her secular role: she was not tasked with performing any religious instruction and she was charged with no religious duties such as taking students to chapel or leading them in prayer. If plaintiff was a minister, it is hard to see how any teacher at a religious school would fall outside the exception.

The court granted plaintiff summary judgment on her marital status discrimination claim under Oregon law. It allowed her to move to trial on her claims of pregnancy discrimination and breach of contract.

Another Court Bars Enforcement of Trump's Second Travel Ban

As reported by Bloomberg Politics, yesterday a Maryland federal district court became the second court to bar enforcement of part of President Trump's second "travel ban" Executive Order. In International Refugee Assistance Project v. Trump, (D MD, March 16, 2017), the court issued a nationwide preliminary injunction barring enforcement of Section 2(c) of the Second Executive Order. That section imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen.  The court said in part:

The Second Executive Order does not explain specifically why this extraordinary, unprecedented action is the necessary response to the existing risks. But while the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban. Thus, it is more likely that the primary purpose of the travel ban was grounded in religion, and even if the Second Executive Order has a national security purpose, it is likely that its primary purpose remains the effectuation of the proposed Muslim ban. Accordingly, there is a likelihood that the travel ban violates the Establishment Clause.

Recent Prisoner Free Exercise Cases

In Givens v. Vaughn, 2017 U.S. Dist. LEXIS 31366 (SD IL, March 6, 2017), an Illinois federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 31374, Feb. 6, 2017) and dismissed a complaint by a Hebrew Israelite inmate over the method of preparing kosher meals, refusal of separate Hebrew Israelite Sabbath services, and inability to celebrate certain feasts.

In Jones-Bey v. Jefferson County Government, 2017 U.S. Dist. LEXIS 31827 (WD KY, March 6, 2017), a Kentucky federal district court allowed a recently-released inmate to move ahead with his damage action for denying him permission to attend Islamic Services and denying him Halal meals.

In Munt v. Minnesota Department of Corrections, 2017 U.S. Dist. LEXIS 32235 (D MN, March 6, 2017), a Minnesota federal district court ordered defendants to file a supplemental affidavit responding to a Christian inmate's complaint that the lack of privacy in prison facilities (showers, toilets, etc.) violates his religious belief against exposing himself.

In Barrera-Avila v. Watts, 2017 U.S. Dist. LEXIS 33116 (SD GA, March 8, 2017), a Georgia federal magistrate judge recommended dismissing an inmate's complaint regarding interference with the practice of his Santeria religion.

In Hoke v. Lyle, 2017 U.S. Dist. LEXIS 32445 (SD GA, March 7, 2017), a Georgia federal district court adopted a magistrate's recommendation and dismissed an inmate's complaint over policies that resulted in his not receiving his packages containing a study Bible and bible study lessons.

5 Judges In 9th Circuit Would Uphold Trump's First Travel Ban

Last month, a 3-judge panel of the U.S. 9th Circuit Court of Appeals refused to stay the Washington federal district court's temporary restraining order against enforcement of President Trump's first "travel ban" Executive Order. (See prior posting.)  On March 8, after the President issued a narrower and more focused new Executive Order, a 3-judge panel of the 9th Circuit granted the government's unopposed motion to dismiss its underlying appeal of the district court's decision, leaving the case pending at the district court level. A judge of the 9th Circuit then called for a vote on en banc reconsideration of the order to dismiss in order to vacate the panel's original opinion upholding the district court's stay. In State of Washington v. Trump, (9th Cir., March 15, 2017), reconsideration failed to receive a majority vote.  However five judges (Judges Bybee, Kozinski, Callahan, Bea, and Ikuta) filed a dissenting opinion, criticizing the panel's original rationale for upholding the stay.  The dissenters focused on the Supreme Court's decision in Kleindienst v. Mandel (1972) relating to the deference which courts should give to executive action affecting aliens who are outside the U.S.  CNN points out that the five dissenters were all appointed by Republican presidents.

Lynn to Retire As Head of Americans United

In a press release issued yesterday. Americans United for Separation of Church and State announced that its long-time executive director Barry W. Lynn will retire at the end of 2017.  Lynn has served as the head of AU for 25 years.  In a letter to AU members and supporters, Lynn said that a search for his successor is already under way.

Appeals Court OK's Court-Ordered Meeting of Church Members

In Hawkins v. St. John Missionary Baptist Church of Bakersfield, California, (CA App., March 15, 2017), a California state appellate court upheld a trial court's determination that it could use neutral principles of state non-profit corporation law to order a church's Board of Deacons to call a meeting of members to vote on whether to remove the church's pastor. The appeals court said in part:

[T]he court may apply neutral principles of law based on the church’s own constitution, bylaws and rules, and relevant California statutes.... Thus, a court may determine whether an election in which a pastor was removed was properly conducted according to the church’s bylaws, rules and regulations. In other words, the court may assist the church in acting within its proper sphere under its own rules and regulations to protect civil and property rights.

At the meeting, overseen by a court-appointed referee, those favoring removal of the pastor prevailed by 1 vote. The appeals court concluded that the referee had wrongly excluded the votes of 3 members, and remanded the case for the trial court to redetermine the election results after counting those votes.

Hawaii Federal Court Bars Enforcement of Key Provisions of Second Travel Ban

Today a Hawaii federal district court issued a nationwide temporary restraining order prohibiting enforcement of Section 2  (90 day ban on entry into U.S. of nationals of six Muslim-majority nations) and Section 6 (120 day suspension of entry of refugees) of President Trump's second "travel ban" Executive Order.  The Executive Order was scheduled to go into effect tomorrow. (See prior posting.)  The lawsuit was brought by the state of Hawaii and by the Imam of the Muslim Association of Hawai‘i.  In State of Hawaii v. Trump, (D HI, March 15, 2017), a Hawaii federal district court concluded that:

Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.

The court explained its conclusion in part as follows:

The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.... The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.”... The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry.

According to Hawaii News Now,  President Trump reacted to the ruling during a rally in Nashville, saying in part:

This is, in the opinion of many, an unprecedented judicial overreach. This ruling makes us look weak, which by the way, we no longer are, believe me.  We're going to fight this terrible ruling. We're going to fight this case as far as it needs to go, including all the way up to the Supreme Court.

Washington Post reports on today's decision. Josh Blackman's Blog has a lengthy post reviewing cases on the application of the Establishment Clause to immigration law matters and reaching a different conclusion than did the Hawaii court about the Executive Order's constitutionality..

NYC Arrangement On Controversial Circumcision Method Apparently Is Not Working

In September 2015, the New York City Board of Health repealed its largely unenforced regulations that required parental consent forms be signed in cases of ritual circumcision using the direct oral suction technique (metzitzah b'peh). The original regulations were adopted to prevent passage of the herpes simplex virus to infants.  In exchange for the repeal, the Orthodox Jewish community was to cooperate in banning mohels  who are found to have infected an infant. (See prior posting.) The New York Post reported Monday that since the the 2015 arrangement by the DeBlasio administration, there have been six case of herpes.  However only two of the six mohels involved have been identified, and those two were not removed, but merely advised not to use the controversial direct oral suction method.  Mayor DeBlasio says the city is reviewing the situation.

City's Settlement of Mosque Litigation Challenged By New Lawsuit

As previously reported, last month the city of Sterling Heights, Michigan reached settlements in two related lawsuits challenging the city's denial of a land use application filed by an Islamic group that wants to construct a mosque on five adjoining lots in the city. Now several individuals have filed a federal lawsuit challenging the settlement.  The complaint (full text) in Youkhana v. City of Sterling Heights, (ED MI, filed 3/13/2017), seeks a declaration that the settlement is invalid and unenforceable. It contends that the city violated plaintiffs' 1st, 4th and 14th Amendment rights, including the Establishment Clause, in the procedures used at the City Council meeting considering the settlement.  It also claims a violation of the Michigan Open Meetings Act. the complaint describes the procedures used at the meeting as follows:

The City ... (1) adopted an ad hoc rule that limited speakers wanting to address the Consent Judgment agenda item to just 2 minutes, thereby severely limiting Plaintiffs’ right to express their views at this public hearing, even though the Mayor allowed other speakers addressing less controversial matters that evening to speak at great length; (2) prohibited certain views based on their content and viewpoint (i.e., no one was permitted to mention religion or even hint at it when discussing the Consent Judgment matter, and certainly no one was permitted to make any statement that might be deemed critical of Islam); (3) directed the City police to seize individuals and escort them out of the meeting if the Mayor opposed what they were saying about the Consent Judgment matter; and (4) ordered the citizens out of the public meeting when it came time to actually vote on the Consent Judgment.

Detroit News reports on the lawsuit.

Recent Prisoner Free Exercise Cases

In Robinson v. Superintendent Houtzdale SCI, (3d Cir., March 6, 2017), the 3rd Circuit affirmed the dismissal of an inmate's complaint that he was unable to participate in the sex offender’s treatment program because it requires him to "confess" to a therapist, and as a Christian the Bible only permits him to confess to God.

In Adams v. Scott, 2017 U.S. Dist. LEXIS 28966 (CD IL, March 1, 2017), an Illinois federal district court dismissed a complaint by several civilly committed individuals that their nondenominational Christian religious beliefs were not accommodated.

In Carawan v. McLarty, 2017 U.S. Dist. LEXIS 29485 (ED NC, March 2, 2017), a North Carolina federal district court dismissed an inmate's claim that his free exercise rights were infringed when authorities confiscated his mail which contained postage stamps donated to him by Muslim inmates practicing zakat.

In Ayers v. Esgrow, 2017 U.S. Dist. LEXIS 30124 (WD NY, March 1, 2017), a New York federal district court allowed an inmate to move ahead with his complaint that a correctional officer vindictively seized his personal religious property, removed him from his religious clerk position and filed a falsified misbehavior report against him.

In Barros v. Wetzel, 2017 U.S. Dist. LEXIS 30498 (MD PA, March 2, 2017), a Pennsylvania federal magistrate judge recommended allowing a Muslim inmate to move ahead with his complaint that authorities refused to provide him with a medically prescribed therapeutic diet tray during the Ramadan fast.

European Court of Justice Upholds Neutral Employment Rules Barring Religious Dress

The Court of Justice of the European Union today decided two cases raising the question of whether private employers may prohibit Muslim employees from wearing a headscarf at work.  In a case from Belgium, Achbita v. G4S Secure Solutions NV, (CJEU, March 14, 2017), the Court's Grand Chamber ruled:

Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of that directive.

By contrast, such an internal rule of a private undertaking may constitute indirect discrimination within the meaning of Article 2(2)(b) of Directive 2000/78 if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, and the means of achieving that aim are appropriate and necessary, which it is for the referring court to ascertain.

In a case from France, Bougnaoui v. Micropole SA,  (CJEU, March 14, 2017), however, the Court's Grand Chamber held that where an employer does not have a general rule on dress:

Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of that provision.

The Court issued a press release summarizing the decisions. The Guardian reports on the decision.

7th Circuit Upholds Enhanced Sentence For Hajj Fraud Defendant

In United States v. Minhas, (7th Cir., March 10, 2017), the U.S. 7th Circuit Court of Appeals upheld the 114 month prison sentence imposed on a travel agent convicted in two separate cases of wire and mail fraud. One of the cases involved selling 54 customers purported Hajj travel packages when defendant was unable to provide the necessary visas for travel to Saudi Arabia.  The district court imposed sentence enhancement under the Sentencing Guidelines because the offense resulted in substantial financial hardship to the victims.  The appeals court upheld the district court's consideration of victims as a group rather than individually in making this determination.  The court added:

It is also worth noting that the district court understood that, at least in the Lightstar Hajj case, the harm was not just the loss of money, but was also a spiritual injury inflicted when it became impossible for the victim to make the hajj.... While being deprived of this opportunity (for a year at the very least) may not constitute a financial loss in the traditional sense of losing dollars from a bank account, it is a significant alteration in life circumstances, as are many of the factors pertinent to interpreting “substantial financial hardship”....

11th Circuit: Title VII Does Not Bar Sexual Orientation Discrimination

In Evans v. Georgia Regional Hospital, (11th Cir., March 10, 2017), the U.S. 11th Circuit Court of Appeals in a 2-1 decision held that Title VII of the 1964 Civil rights Act does not protect against employment discrimination on the basis of sexual orientation. Jude Martinez, in his majority opinion, held:

Our binding precedent forecloses such an action. Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)4 (“Discharge for homosexuality is not prohibited by Title VII . . . .”). “Under our prior precedent rule, we are bound to follow a binding precedent in this Circuit unless and until it is overruled by this court en banc or by the Supreme Court.”

Judge Pryor concurring wrote in part:

I write separately to explain the error of the argument of the Equal Employment Opportunity Commission and the dissent that a person who experiences discrimination because of sexual orientation necessarily experiences discrimination for deviating from gender stereotypes.  Although a person who experiences the former will sometimes also experience the latter, the two concepts are legally distinct. And the insistence otherwise by the Commission and the dissent relies on false stereotypes of gay individuals.

Judge Rosenbaum, dissenting in part, wrote:

Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be—specifically, that women should be sexually attracted to men only. And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. That is discrimination “because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1), and it clearly violates Title VII under Price Waterhouse [v. Hopkins, 490 U.S. 228 (1989)].

Atlanta Journal Constitution reports on the decision.

Recent Articles of Interest

From SSRN:

• Khaled A. Beydoun, Acting Muslim, (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 53, Forthcoming).
• Jaakko Husa, Hindu Law - Stateless Law?, (Scandinavian Studies in Law, Vol. 62, 2017).
• Lama Abu-Odeh, Religious Difference in a Secular Age: The Minority Report by Saba Mahmoud (2016) Book Review, (Feminist Dissent (Forthcoming)).
• Bronwyn Conwell Roantree , Challenging Statutory Accommodations for Religiously Affiliated Daycares: An Application of the Third Party Harm Doctrine, (January 1, 2017).
• Anthony Michael Kreis, Amputating Rights-Making, (Hastings Law Journal, Vol. 69).
• Jerg Gutmann & Stefan Voigt, The Rule of Law and Islam, (Edward Elgar Handbook on the Rule of Law, Forthcoming).
• Harold Anthony Lloyd, Why Originalism Cannot Work: Lessons from Logic, Scripture, and Art, (March 5, 2017).
• Mary Ziegler, The New Negative Rights: Abortion Funding and Constitutional Law after Whole Woman's Health, (March 9, 2017).
• Miranda Perry Fleischer, Subsidizing Charity Liberally, (San Diego Legal Studies Paper No. 17-261 (2017)).

From SSRN (Marriage):

• Anthony Michael Kreis, Stages of Constitutional Grief: Democratic Constitutionalism and the Marriage Revolution, (University of Pennsylvania Journal of Constitutional Law, Vol. 20).
• Kerry Abrams, The Rights of Marriage: Obergefell, Din, and the Future of Constitutional Family Law, (March 7, 2017).

Utah Legislature Passes Changes to Polygamy Ban

As reported by AP and CNN, the state legislature late last night gave last minute final passage to HB 99 (full text) amending the state's bigamy law.  It is unclear whether Gov. Gary Herbert will sign the bill.  The bill narrows the definition of bigamy, but increases the penalties if the person prosecuted is also convicted of fraud, abuse or trafficking.  The bill required purporting to marry and cohabiting where either party is already married for a person to be guilty of bigamy.  Current law requires only one of those. Reactions to the law vary.  Sponsors say the change is necessary to protect against constitutional challenges and to focus on those plural marriages which are most problematic.  Opponents say the bill will drive polygamy even further underground.

New South Dakota Law Protects Religious Child-Placement Agencies

ACLU reports that on March 10, South Dakota Governor Dennis Daugaard  signed SB 149 (full text) into law.  The new law protects adoption and foster care agencies that act in accordance with religious or moral beliefs in placing children, providing in part:

No child-placement agency may be required to provide any service that conflicts with, or provide any service under circumstances that conflict with any sincerely-held religious belief or moral conviction of the child-placement agency.

It also explicitly bars any adverse action by the state against a child placement agency that acts in accordance with its religious or moral principles, except it does not authorize discrimination on the basis of race, ethnicity or national origin.  One of the primary effects of the legislation is to allow agencies to refuse to permit adoptions by same-sex couples.

Dakota Free Press reported on February hearings on the bill in which an ACLU witness pointed out that the bill would allow agencies to exclude adoptions or foster care placements by

not only same-sex couples, but also people who have a different religion [from] the agency, single parents, interfaith couples… families that don’t attend church weekly, service members or gun owners… based on the agency’s moral conviction regarding pacifism, all while children in need of homes languish in foster care and await permanent families. This bill even authorizes agencies to deny a child placement with a close relative and instead place that child with strangers if that relative is of the wrong religion….

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.

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.

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.

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.]

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.)

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.

Recent Articles and Book of Interest

From SSRN:

• Edward A. Zelinsky, Churches' Lobbying and Campaigning: A Proposed Statutory Safe Harbor for Internal Church Communications, (Rutgers Law Review, Forthcoming).
• Jared A. Goldstein, Unfit for the Constitution: Nativism and the Constitution, from the Founding Fathers to Donald Trump, (Roger Williams Univ. Legal Studies Paper No. 174 (2017)).
• Jonathan P. Kuhn, The Religious Difference: Equal Protection and the Accommodation of (Non)-Religion, (Washington University Law Review, Vol. 94, No. 1, 2016).
• Jerrold A. Long, The Origins of a Rebellion: Religion, Land, and a Western Environmental Ethic, (February 26, 2017).
• Timothy Lubin, Custom in the Vedic Ritual Codes as an Emergent Legal Principle, (Journal of the American Oriental Society 136.4 (2016): 669–687).
• Roger Colinvaux, The Importance of a Participatory Charitable Giving Incentive, (Tax Notes, Vol. 154, No. 5, 2017).

From SmartCILP:

• Cathleen Kaveny & Kevin L. Flannery, Response and Rejoinder: On Voting, Intrinsic Evil, and Ranking of Political Issues, [Abstract], 61 American Journal of Jurisprudence 259-273 (2016).
• Nicole Buonocore Porter, Accommodating Everyone, 47 Seton Hall Law Review 85-136 (2016).
• Samuel D. Brunson, Taxing Utopia, 47 Seton Hall Law Review 137-196 (2016).
• Robin Maril & Sarah Warbelow, Finding an End to Federally Sanctioned Discrimination: A Call to Rescind the 2007 OLC World Vision Memo, 24 American University Journal of Gender Social Policy & Law 445-467 (2016).
• Haider Ala Hamoudi, Resurrecting Islam or Cementing Social Hierarchy?: Reexamining the Codification of "Islamic" Personal Status Law, 33 Arizona Journal of International & Comparative Law 329-382 (2016).
• David L. Gregory, Is Religious Liberty the Ultimate Management Prerogative?: Some Reflections on Pacific Lutheran University and Service Employees International Union, Local 925, [Abstract], 33 Hofstra Labor & Employment Law Journal 207-240 (2016).
• Jonathan D. Colan, The Supreme Court's Talmudic Debate on the Meanings of Guilt, Innocence, and Finality, 73 Washington & Lee Law Review 1243-1294 (2016).
• Vol. 1, Issue 1 of Buddhism Law & Society has appeared.

Recent Book:

• Patrick M. Brennan &William S. Brewbaker III, Christian Legal Thought: Materials and Cases, (Foundation Press, 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."

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.  

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.

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.

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.

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.

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). 

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.

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.

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.)

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.