More Recent Prisoner Free Exercise Cases

[Note to readers: A unusually large number of prisoner free exercise cases have been decided in recent weeks, so Religion Clause will summarize them in postings more frequent than the usual once-per-week post on such cases until the backlog is covered.]

In Brooks v. Walsh, 2017 U.S. Dist. LEXIS 40484 (D NV, March 20, 2017), a Nevada federal district court dismissed an inmate's claim that his free exercise rights were infringed when authorities refused to correct a mistaken designation of his chosen religion, which led to him being denied a kosher diet and participation in Hebrew-Israelite religious services.

In Higgins v. Rodriguez, 2017 U.S. Dist. LEXIS 40700 (ED CA, March 21, 2017), a California federal magistrate judge recommended dismissing a suit by a Muslim inmate who alleged that his halal food tray at various times had missing or incomplete food items.

In Harrell v. California Forensic Medical Group, Inc., 2017 U.S. Dist. LEXIS 40819 (ED CA, March 21, 2017), a California federal magistrate judge dismissed an inmate's claim that denial of treatment for Hepatitis with a new drug violated his free exercise rights and his right to procreate because he cannot have a child without giving that child Hepatitis.

In Becker v. Reddish, 2017 U.S. Dist. LEXIS 41163 (MD FL, March 22, 2017), a Florida federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that prison officials confiscated his prayer shawl, tulasi bead necklace, and krsna pendant.

In Bayadi v. Clarke, 2017 U.S. Dist. LEXIS 41244 (WD VA, March 22, 2017), a Virginia federal district court allowed a Muslim inmate to continue with his complaint that pork-free Common Fare meal trays are not kept properly separated from meal trays containing pork products.

In Al-Azim v. Everett, 2017 U.S. Dist. LEXIS 41570 (ED VA, March 22, 2017), a Virginia federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 41716, March 3, 2017) and dismissed two inmates' suit complaining that they did not receive a diet consistent with Nation of Islam beliefs.

In Russell v. Pallito, 2017 U.S. Dist. LEXIS 42009 (D VT, March 23, 2017), a Vermont federal district court, rejecting a magistrate's contrary conclusion (2016 U.S. Dist. LEXIS 185274, Aug. 9, 2016), interpreted 42 USC 1997e(e) as allowing an inmate to recover damages for violation of his Free Exercise rights even though he did not suffer any physical injury.  At issue was prison policy to provide Muslim inmates kosher meals instead of halal meals.

Recent Prisoner Free Exercise Cases

In Orwig v. Chapdelane, 2017 U.S. Dist. LEXIS 38875 (D CO, March 17, 2017), a Colorado federal district court allowed an inmate to proceed with some of his claims complaining he was prohibited from carrying his pocket Bible outside of his POD (other to and from religious services), thus compelling him to give up his prison work and incur punishment for doing so. The magistrate's recommendation is at 2017 U.S. Dist. LEXIS 38874, Feb. 16, 2017.

In Christian Separatist Church Society v. Mohr, 2017 U.S. Dist. LEXIS 38902 (SD OH, March 17, 2017), an Ohio federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 38901, Jan. 30, 2017) and allowed an inmate to proceed with his RLUIPA complaint that members of the Christian Separatist Church are not permitted to conduct their own communal worship services separate from other Protestant services.

In Staples v. New Hampshire State Prison, 2017 U.S. Dist. LEXIS 39615 (D NH, March 17, 2017), a New Hampshire federal district court dismissed a complaint by a Taoist inmate that he was penalized for not complying with the prison's beard policy and was denied access to Taoist resources.

In Strickland v. Godinez, 2017 U.S. Dist. LEXIS 39707 (SD IL, March 20, 2017), an Illinois federal district court dismissed a complaint by an inmate who practices  Asatru/ Odinism that he was denied various religious items, celebration of religious holidays and group services.

In Leshowitz v. Collins, 2017 U.S. Dist. LEXIS 39877 (WD WA, March 20, 2017), a Washington federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 39885, Feb. 10, 2017) and dismissed an inmate's complaint that his Bible calendar was thrown away.

In Avery v. Beard, 2017 U.S. Dist. LEXIS 39895 (SD CA, March 20, 2017), a California federal district court allowed an inmate to move ahead with his complaint about the lack of a separate outdoor spiritual area for practitioners of the Wiccan and Odinist/Asatru religions.  The court also granted a 90 stay so plaintiff could exhaust administrative remedies on his complaint that Wiccans should have access to a sweat lodge.

Montana Diocese Files for Bankruptcy

As reported by the Great Falls Tribune, the Diocese of Great Falls-Billings (Montana) yesterday filed for Chapter 11 bankruptcy.  The filing grows out of settlement negotiations in a suit that was filed in 2012 by 72 survivors who suffered sexual abuse as minors from priests over the course of several decades. A press release from the Diocese says in part:

On March 31, 2017, the Diocese is filing a chapter 11 reorganization case before the United States Bankruptcy Court for the District of Montana to fulfill a pre-bankruptcy mediated negotiated agreement with known abuse survivors and the Diocese’s liability insurance carrier.

Bishop Michael W. Warfel and the Diocese have chosen a pastoral approach which provided the basis for its having entered this confidential mediation process. The recent mediation resulted in the beginning stages of general parameters of proposed settlements with the victims and the insurance carrier. The details of that comprehensive agreement are still being worked on by the parties. Under the supervision and ultimate approval of the Bankruptcy Court, the diocese and its insurance carrier would both contribute to that comprehensive settlement, which would compensate the currently identified victims. There will be additional settlement funds for additional and unknown victims. The process of obtaining Bankruptcy Court approval included the opportunity for victims and creditors to vote on the proposed settlement. The Diocese expects that its reorganization will be expedited by the pre-bankruptcy negotiations with all the affected parties.

Fired Hospice Chaplain Loses Title VII Claim In 9th Circuit

In Blair v. Shulkin, (9th Cir., March 28, 2017), the U.S. 9th Circuit Court of Appeals agreed with the district court that a Title VII religious discrimination claim against the Department of Veterans Affairs should be dismissed. Plaintiff, Carmen Blair, claimed that she was fired from her position as a chaplain because of her Christian religious beliefs, alleging that her dismissal stemmed from discriminatory and biased attitudes on the part of her hospice team towards her as a conservative Charismatic Christian.  The court accepted the VA's explanation that the firing was because Blair was unable to integrate into the hospice unit team.  It pointed out that "the very basis upon which Blair claims she was
discriminated against—her Christian faith—was a prerequisite for her initial employment."  Courthouse News Service reports on the decision.

North Carolina Repeals "Bathroom Law", But Pre-Empts Local Regulation

North Carolina Governor Roy Cooper yesterday signed into law House Bill 142 (full text), a compromise bill that repeals H.B. 2, the state's controversial "bathroom law" that restricted use of restrooms and locker rooms in public schools and government offices by transgender individuals. (See prior posting.) The new law also repeals Session Law 2016-99, and thus apparently eliminates any private action under state law for employment discrimination. The new law prohibits local governments, state universities and state agencies from enacting their own regulation of access to multiple occupancy restrooms, showers, or changing facilities.  It also prohibits local governments until Dec. 1, 2020 from enacting or amending any ordinance regulating private employment practices or public accommodations.  In his remarks (full text) in signing H.B. 142, Gov. Cooper said in part:

This law I’m signing today is not just about North Carolina’s reputation – or jobs and sports. It’s about working to end discrimination. Under HB2, North Carolina had zero LGBT protections. Today’s law not only provides for LGBT protections, but opens the door for more.

 This is not a perfect deal or my preferred solution. It stops short of many things we need to do as a state.

 In a perfect world, we would have repealed HB2 today and added full statewide protections for LGBT North Carolinians. Unfortunately, our supermajority Republican legislature will not pass these protections. But this is an important goal that I will keep fighting for.

Washington Post reports on these developments.

Ecclesiastical Abstention Leads To Dismissal of Suit By Expelled Student For Priesthood

In Doe v. Pontifical College Josephinum, (OH App., March 30, 2017), an Ohio appellate court applied the ecclesiastical abstention doctrine to dismiss a suit by a former student who was dismissed from an academic program designed to prepare him to become a priest.  The student was dismissed after the school's Vice Rector determined that there was a "credible accusation of homosexual activity."  The student sued for breach of contract, intentional infliction of emotional distress, unauthorized disclosure of confidential educational records, and unjust enrichment. In an internal canon law appeal of his dismissal, the student was unable to prepare a defense because he could not obtain relevant records from the school.  The court affirmed the trial court's dismissal of the lawsuit, saying in part:

Although appellant argues that the trial court could resolve his claims without addressing ecclesiastic issues, it is clear that the alleged unjust dismissal lies at the core of each claim. Therefore, evaluating those claims would require the common pleas court to consider issues related to the Josephinum's disciplinary process and the dismissal. 

Challenge To Boca's Zoning For Chabad Again Dismissed For Lack of Standing

As previously reported, last July a Florida federal district court dismissed on standing grounds a challenge by residents and taxpayers of Boca Raton to zoning changes by the city that permitted a Chabad (Hasidic Jewish) group to construct a religious center.  Plaintiffs, who identified themselves as Christians, claim that the city's actions violated the Establishment clause, the equal protection and due process clauses, and the Florida Constitution. Subsequently plaintiffs filed an amended complaint attempting to find standing by describing plaintiffs as citizens and residents of the United States residing in Boca Raton, and as members of the Christian religion.  In Gagliardi v. City of Boca Raton, 2017 U.S. Dist. LEXIS 46805 (SD FL, March 27, 2017), the court again found that plaintiffs lack standing, saying in part:

Far from the particularized and concrete injury required to confer standing, Plaintiffs have simply reasserted, again and again, a list of conjectural injuries to the whole of the area surrounding the proposed Chabad site, and potentially beyond.

Recent Prisoner Free Exercise Cases

In Crawley v. Parsons, 2017 U.S. Dist. LEXIS 36572 (WD VA, March 14, 2017), a Virginia federal district court allowed an inmate who was a member of the House of Yahweh faith to move ahead in his suit against the chaplain (but not against others) for failure to grant his request to participate in Passover meals.

In Delk v. Younce, 2017 U.S. Dist. LEXIS 36581 (WD VA, March 14,2017), a Virginia federal district court dismissed complaints about his religious diet raised by a Wiccan/ Pagan inmate.

In Carter v. Fleming, 2017 U.S. Dist. LEXIS 36644 (WD VA, March 15, 2017), a Virginia federal district court dismissed a complaint by a Nation of Islam inmate that halal and Kosher foods were served on the regular as well as the Common Fare menu.

In Simpson v. Director., Texas Department of Criminal Justice- Correctional Institutions Division, 2017 U.S. Dist. LEXIS 37419 (ED TX, March 16, 2017), a Texas federal district court dismissed a Jewish inmate's complaint that officers confiscated material he used for religious study while searching his housing unit.

In Cochran v. Sherman, 2017 U.S. Dist. LEXIS 38165 (ED CA, March 15, 2017), a California federal magistrate judge allowed an inmate to move ahead with his claim against two defendants for refusing to allow him to obtain a religious name change.

In Dorsey v. Shearin, 2017 U.S. Dist. LEXIS 38483 (D MD, March 17, 2017, a Maryland federal district court refused to dismiss a Native American inmate's complaint regarding the unavailability of religious services to him while in Max II housing.

Pastor's Suit Dismissed Under Ecclesiastical Abstention Doctrine

In Speller v. St. Stephen Lutheran Church of Drayton Plains, (MI App., March 28, 2017), the Michigan Court of Appeals applied the ecclesiastical abstention doctrine to dismiss a suit brought by a Lutheran pastor challenging actions that forced his resignation from St. Stephen's Lutheran Church. He claims this led to his "blacklisting" in the church and his inability to practice his profession.  The court rejected plaintiff's argument that it should decide the case using neutral principles of law, instead of dismissing it, saying in part:

His tort and breach of contract claims arose in the context of St. Stephen’s decision whether to retain plaintiff as its pastor and the LCMS and Reverend Maier’s decision whether to retain plaintiff as a minister on the LCMS synodical roster. Resolution of these claims would necessarily require the trial court to inquire into the propriety of those decisions and defendants’ conduct relative to those decisions, which clearly relate to internal church matters, including church discipline, church governance, and plaintiff’s employment as a Lutheran pastor. These issues would require the court to impermissibly stray into ecclesiastical polity.

Hawaii Federal District Court Converts TRO Against Travel Ban To Preliminary Injunction

Yesterday a Hawaii federal district court granted the state of Hawaii's motion to convert its prior temporary restraining order against President Trump's second travel ban Executive Order into a temporary injunction. In State of Hawai'i v. Trump, (D HI, March 29, 2017), the court concluded that "Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim...."  The court said in part:

The Court determined in its TRO that the preliminary evidence demonstrates the Executive Order’s failure to satisfy Lemon’s first test.... As no new evidence contradicting the purpose identified by the Court has been submitted by the parties since the issuance of the March 15, 2017 TRO, there is no reason to disturb the Court’s prior determination.

Instead, the Federal Defendants take a different tack. They once more urge the Court not to look beyond the four corners of the Executive Order.... No binding authority, however, has decreed that Establishment Clause jurisprudence ends at the Executive’s door.

High Schooler Sues Over School's Transgender Policy

A suit was filed last week in a Pennsylvania federal district court on behalf of a high school student who contends that his privacy rights, as well as his rights under Title IX, were infringed when his high school permitted transgender students to use locker rooms and rest rooms consistent with their gender identity rather than their biological features.  The complaint (full text) in Doe v. Boyertown Area School District, (ED PA, filed 3/21/2017) alleges that when plaintiff found himself sharing a locker room with a partially undressed individual who was anatomically female, he suffered embarrassment, humiliation, degradation and loss of dignity.  ADF issued a press release announcing the filing of the lawsuit.

Recent Prisoner Free Exercise Cases

In Blankenship v. Setzer, (4th Cir., March 16, 2017), the 4th Circuit held that a Christian inmate adequately alleged RLUIPA and 1st Amendment claims when he objected to the refusal by authorities to allow him to bring his Bible with him on the transport van on several trips from his confinement facility to the county jail.

In Fonseca v. Spearman, 2017 U.S. Dist. LEXIS 33245 (ED CA, March 8, 2017), a California federal magistrate judge dismissed with leave to amend a Jewish inmate's complaint that his request to change his name for religious reasons was refused.

In Clover v. Smith, 2017 U.S. Dist. LEXIS 34248 (SD IN, March 10, 2017), an Indiana federal district court dismissed on qualified immunity grounds a Muslim inmate's complaint over a change in time for Muslim Friday Jummah prayer services.

In Diaz v. Kessler, 2017 U.S. Dist. LEXIS 34936 (ND CA, March 10, 2017), a California federal district court, denying summary judgment, concluded that a genuine dispute remained as to whether an inmate's removal from Jewish religious services was for a legitimate penological reason.

In White v. York, 2017 U.S. Dist. LEXIS 35526 (ND NY, March 10, 2017), a NewYork federal magistrate judge recommended dismissing a Rastafarian inmate's complaint that he was not receiving a religious diet that included unprocessed meats.

In Jones v. Malin, 2017 U.S. Dist. LEXIS 35599 (SD NY, March 13, 2017), a New York federal district court allowed a Muslim inmate to move ahead with his complaint that he was prevented from attending separate Shi'a Jumu'ah prayer services. Three other claims of interference with his religious practice were dismissed.

Russian Officials Forcing Sochi's Rabbi To Leave The Country

Interfax reports that Rabbi Ari Leib Edelkopf who has led the Jewish community in the Russian city of Sochi is being forced to leave Russia.  Edelkopf, a U.S. citizen since 1978, obtained a Russian temporary resident permit in 2015. The next year he applied for Russian citizenship.  In December of 2016 the Krasnodar Territory police carried out a background check in processing the application and received information, still undisclosed publicly or to Edelkopf, that led police to cancel his temporary resident permit on the ground of "his actions creating a threat to Russia's security." The Sochi's Central District Court upheld the decision, as did the appellate collegium of the Krasnodar Territory Court. At the 18-minute appellate hearing, officials refused to disclose the basis for the action against Edelkopf, claiming it is a state secret.

Judge Sued Over Opening Prayers In Courtroom

Freedom From Religion Foundation filed suit last week in a Texas federal district court against a Montgomery County, Texas Justice of the Peace who opens his court sessions with a chaplain-led prayer.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Mack, (SD TX., filed 3/21/2017), contends that the practice violates the Establishment Clause. FFRF issued a press release announcing the filing of the lawsuit. (See prior related posting.)

Suit Claims Forced Baptism of Child Facilitated By Guardian Ad Litem

The Cleveland Plain Dealer reported on this week's filing in an Ohio federal district court of a lawsuit  alleging that a court-appointed CASA volunteer acting as guardian ad litem for a developmentally disabled child recruited a mentor who in turn had the child baptized against his parent's wishes.  The complaint (full text) in Defiaugh v. Big Brothers/ Big Sisters of Northeast Ohio Board of Trustees, (ND OH, filed 3/27/2017), alleges that in doing so, defendants committed various torts and also violated plaintiffs' free exercise rights.  A press release from American Atheists describes the allegations in the lawsuit.

The lawsuit alleges that V’s court-appointed guardian ad litem, Margaret Vaughan, repeatedly proselytized to V’s parents, April and Gregg DeFibaugh, and their children and told them that “families need God to raise children.” Despite complaining multiple times to Vaughan’s supervisors, no corrective action was taken by the agency. In 2015, Vaughan recruited David Guarnero, a member of her church, to act as a mentor for V through the Big Brothers and Big Sisters of Northeast Ohio (BBBS).

According to the suit, despite explicit instructions from the DeFibaughs to refrain from religious activities with V, Guarnero would frequently discuss religion with V. On August 28, 2016, Guarnero took V to a picnic at his church, the Morning Star Friends Church in Chardon, and, along with the church pastor, Matthew Chesnes, forcibly baptized V, pushing him under water. Since the incident, V has suffered anxiety and extreme emotional distress.

Kentucky, Nebraska Enacts New Protections For Religion In Schools

Two states this month have enacted legislation aimed at enhancing free exercise rights in the public school context. In Kentucky, on March 16 Governor Matt Bevin signed SB 17 which protects the expression of religious and political opinions in public schools and colleges. The law assures that students can voluntarily express religious or political viewpoints in their assignments; bars schools from altering remarks of student speakers; provides equal access for religious organizations; allows students to display religious messages on clothing; allows public school teachers to teach about religion using the Bible or other scripture without providing religious instruction, and to teach about religious holidays in a secular manner, and allows schools to sponsor artistic or theatrical programs that advance knowledge of society's cultural and religious heritage. It also effectively bars public colleges from limiting speakers outdoors on campus to free speech zones.  An ADF press release has more on the new law.

In Nebraska, on March 27 Governor Pete Ricketts signed LB 62 eliminating a longstanding ban on teachers wearing religious garb in public schools.  Blog from the Capital has more.

Virginia Federal Court OK's Trump's Second Travel Ban EO

While federal district courts in Hawaii and Maryland have issued nationwide injunctions barring enforcement of President Trump's second travel ban Executive Order finding that it violates the Establishment Clause, a Virginia federal district court has now reached an opposite conclusion.  In Sarsour v. Trump, (ED VA, Marc 24, 2017), the court said in part:

Given the revisions in EO-2, the question is now whether the President's past statements continue to fatally infect what is facially a lawful exercise of presidential authority. In that regard, the Supreme Court has held that "past actions [do not] forever taint any effort on [the government's] part to deal with the subject matter. . . ." This Court is no longer faced with a facially discriminatory order coupled with contemporaneous statements suggesting discriminatory intent. And while the President and his advisors have continued to make statements following the issuance of EO-1 that have characterized or anticipated the nature of EO-2, the Court cannot conclude for the purposes of the Motion that these statements, together with the President's past statements, have effectively disqualified him from exercising his lawful presidential authority under Section 1182(f). In other words, the substantive revisions reflected in EO-2 have reduced the probative value of the President's statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose.

The Hill reports on the decision.

Religious Exemptions In ACA and FICA Upheld

In Olson v. Social Security Administration, 2017 U.S. Dist. LEXIS 41469 (D ND, March 22, 2017), a North Dakota federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 41468, March 3, 2017) and dismissed plaintiff's challenge to the constitutionality of the religious exemptions in the Affordable Care Act and FICA.  In rejecting plaintiff's Establishment Clause claim, the magistrate judge said in part:

Religious sects whose members qualify for the ACA's religious exemption have made reasonable provision for their dependent members for a substantial period of time; that is designed to protect other taxpayers, not to improperly favor or target any religion.

Another Suit Challenges Trump's Latest Travel Ban Executive Order

Last week, another suit was filed challenging President Trump's latest travel ban Executive Order on, among others, Establishment Clause and equal protection grounds.  The suit was brought by the largest organization of Shi’a Muslims in the United States,as well as by a Yemeni couple living in the United States. The complaint (full text) in Universal Muslim Association of America, Inc. v. Trump, (D DC, filed 3/23/2017), seeks a nationwide injunction barring the government from enforcing the sections of the Executive Order that temporarily bar or make more difficult travel into the U.S. by nationals of certain majority-Muslim nations.  As explained by a press release from Americans United:

There are two sets of plaintiffs in the case. They include the Universal Muslim Association of America (UMAA), the country’s largest organization of Shi’a Muslims, whose members are being deprived of religious learning, worship and services because their religious scholars almost exclusively hail from Iran, Iraq and Syria.  One of their scholars has already been denied entry under the first Muslim ban executive order, and he and other scholars are likely to be denied entry again.  The second set of plaintiffs are John and Jane Doe -- parents blocked from bringing their children home from Yemen.

Supreme Court Hears Oral Arguments In ERISA "Church Plan" Cases

The U.S. Supreme Court today heard consolidated oral arguments in three cases raising the question of when pension plans of religiously affiliated health care systems qualify for the "church plan" exemption under ERISA.  The three cases are Advocate Health Care v. Stapleton, St. Peter's Health Care v. Kaplan and Dignity Health v. Rollins. The full transcript of the oral arguments are available from the Supreme court's website.  A fuller explanation of the issues involved is set out in this prior posting.  AP reports on the arguments. Huge dollar amounts of potential underfunding are at stake nationwide.

5th Circuit Upholds Student Invocations At School Board Meetings

In American Humanist Association v. McCarty, (5th Cir., March 20, 2017), the U.S. 5th Circuit Court of Appeals upheld a school board's practice of opening its meetings with presentations from students, which often involves a prayer.  As described by the court:

Since 1997, two students have opened each session—with one leading the Pledge of Allegiance and the Texas pledge and the other delivering some sort of statement, which can include an invocation. Those student presenters, typically either elementary- or middle-school students, are given one minute. [School board] officials do not direct them on what to say but tell them to make sure their statements are relevant to school-board meetings and not obscene or otherwise inappropriate. At a number of meetings, the student speakers have presented poems or read secular statements. But ... they are usually an invocation in the form of a prayer, with speakers frequently referencing “Jesus” or “Christ.”

Upholding the practice, the court said that the  in part:

The key question ... is whether this case is essentially more a legislative-prayer case or a school-prayer matter....We agree with the district court that “a school board is more like a legislature than a school classroom or event.” The BISD board is a deliberative body, charged with overseeing the district’s public schools, adopting budgets, collecting taxes, conducting elections, issuing bonds, and other tasks that are undeniably legislative....

In a press release, the American Humanist Association indicates that it will file a petition to seek an en banc rehearing in the case.

Religion Clause To Take A Publication Break

Dear Readers:

Religion Clause will be going on a publication break until approximately the end of March.  Check back for my resumption of postings at that time.

Howard Friedman

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.