Challenge To Pennsylvania Legislative Prayer Practices Survives Motion To Dismiss

In Fields v. Speaker of  the Pennsylvania House of Representatives, (MD PA, April 28, 2017), a Pennsylvania federal district court in a 33-page opinion refused to dismiss on the pleadings an Establishment Clause challenge to the Pennsylvania House of Representatives invocation policy.  House members may nominate "guest chaplains" to deliver an invocation at the beginning of a House session.  However House rules, as administered by the Speaker, do not permit non-theists to serve as guest chaplains. Plaintiffs are atheists, agnostics, secular humanists and freethinkers who have been denied the opportunity to deliver an invocation.  According to the court:

Plaintiffs plead a policy of religious discrimination sufficient to state a First Amendment claim.

Whether history and tradition sanctify the House‟s line of demarcation between theistic and nontheistic chaplains is a factual issue for a later day. Establishment Clause issues are inherently fact-intensive, and we must resist the academic intrigue of casting the salient inquiry too narrowly at this juncture. To the extent the parties‟ arguments evoke more nuanced constitutional questions— e.g., whether plaintiffs practice “religion” and are capable of “praying,” or whether tradition dictates that legislative prayer address a “higher power”—any such determination demands, and deserves, a fully developed record. As it stands, plaintiffs‟ challenge to the House‟s legislative prayer policy survives Rule 12 scrutiny.

The court also permitted two of the plaintiffs to move ahead with their challenge to the requirement that members of the public in attendance stand during the invocation.  On one occasion the Speaker publicly singled out plaintiffs for remaining seated.

The Court dismissed Free Exercise, Free Speech and Equal Protection challenges to the prayer policy, finding that legislative prayer is "government speech."

Arkansas Disorderly Conduct Law Upheld Against Abortion Protesters

In Duhe v. City of Little Rock, Arkansas, (ED AR, April 27, 2017), an Arkansas federal district court upheld the constitutionality of Arkansas' disorderly conduct statute in a suit by two participants in a pro-life event known as Operation Save America. One of the participants was president of a Christian organization, Spirit One. The participants interfered with traffic flow in a clinic parking lot, while using a microphone and loudspeaker to present their views.  Their activity disturbed businesses in the area.  The court held that the disorderly conduct statute under which the two men were charged is neither vague nor overbroad, and is a permissible content-neutral time, place and manner regulation.

India's Supreme Court To Hear Constitutional Challenge To Personal Status Laws

NewsClick yesterday carried a lengthy article surveying the background and importance of the Shayara Bano case which will be heard by a 5-judge panel of India's Supreme Court next month.  At issue is whether laws involving personal status which are governed in India by separate legal codes for different religious groups are subject to the fundamental rights protections of India's Constitution.  In this case, the issue is whether Muslim divorce through "Triple Talaq", a practice invoked pursuant to the Muslim Personal Law (Shariat) Application Act (1937), violates women's rights to equality, life and dignity. The article summarizes in part:

In the triple talaq case the Supreme Court is confronted with this question yet again and it remains to be seen if they will decide the question or dodge it by saying that Islam itself does not recognize triple talaq and hence, there is no need to decide the larger issue of whether personal laws are amenable to constitutional checks and challenges. What is at stake is not just Muslim Personal Law but all laws governing marriage and divorce, including Hindu Law. Will the ruling party that is moving towards a Hindutva State, allow such a challenge is the question. For now the Union of India has committed itself to the challenge but may remain content with the striking down on the ground that it is un-Islamic as some groups have argued. There is a lot riding on this case, not just talaq. The issues are fundamental to constitutional gender justice for all women.

Roy Moore Announces Run For U.S. Senate Seat From Alabama

In Alabama this week, Roy Moore who has been suspended for the rest of his term as Chief Justice of the Alabama Supreme Court because of his defiance of same-sex marriage rulings (see prior posting) announced that he will formally resign from his judicial position in order to run for the United States Senate.  The Republican primary for the seat is scheduled for August (with a potential run off in September). The special election itself is scheduled for December 12.  The Senate seat initially opened up when former Senator Jeff Sessions was appointed U.S. Attorney General. According to AL.com, Moore will face several opponents in the primary, including incumbent Sen. Luther Strange who was appointed on an interim basis to Sessions' seat by Alabama Gov. Robert Bentley, and Dr. Randy Brinson, president of the Christian Coalition of Alabama.  In his announcement, Moore said in part: "My position has always been God first, family then country. I share the vision of President Donald Trump to make America great again."

In Spain, 3 Women Face Trial On Charge of Insulting Religious Sentiments of Catholics

The Telegraph reports that in Spain, three women will be tried on charges of  insulting the religious sentiments of Catholics.  The charges grow out of the women's participation in a May Day parade in 2014 in which they carried a giant plastic vagina through the streets of Seville on a platform imitating the way in which women carry the image of the Virgin Mary in Good Friday parades.  Allegedly they also mocked Catholic prayers. The three women, part of a group calling itself "Sisterhood of the Blessed Rebellious Vagina to the Exploitation of Precariousness," were protesting discrimination against women in the workplace. An appeals court last week rejected the women's free speech defenses. While the women face the potential of fines and an 18 month prison sentence, any prison time is likely to be suspended.

Alabama Legislature Passes Protections For Faith-Based Adoption Agencies

On Tuesday, the Alabama legislature gave final passage to HB 24, the  Alabama Child Placing Agency Inclusion Act (full text).  The bill protects religiously affiliated adoption and foster care agencies that refuse to provide, facilitate or refer for placement in a manner that conflicts with their sincerely held religious beliefs.  The protections only apply to agencies that receive no state or federal funds.  The state may not refuse to license, discriminate or take adverse action against such agencies because they act on their religious beliefs. The bill now goes to Gov. Kay Ivey who must sign it before it becomes law. AL.com reports on the legislature's action. [Thanks to Tom Rutledge for the lead.]

UPDATE: Gov. Ivey signed the bill into law on May 3. (Jurist).

USCIRF Issues 2017 Annual Report

Yesterday the U.S. Commission on International Religious Freedom released its 2017 Annual Report (full text).  The report reviews religious freedom concerns in numerous countries and includes recommendations to the State Department for designation under the International Religious Freedom Act of 16 countries as "countries of particular concern"-- i.e. the most egregious violators of religious freedom.  Those countries are: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, Tajikistan, Turkmenistan, and Uzbekistan-- all already designated by the State Department-- as well as Central African Republic, Nigeria, Pakistan, Russia, Syria, and Vietnam.  The Report explains:

USCIRF’s 2017 CPC recommendations include, for the first time, the recommendation that Russia be designated as a CPC. Based on improvements in religious freedom conditions in Egypt and Iraq, USCIRF does not recommend those two countries for CPC designation in 2017, as it had for Egypt since 2011 and for Iraq since 2008.

The addition of Russia stems in part from its use of its anti-extremism law to restrict religious liberty, most recently of Jehovah's Witnesses. The report also places 12 countries on its Tier 2 list of nations where serious religious freedom concerns exist.  This year's Report begins with this grim introduction:

The state of affairs for international religious freedom is worsening in both the depth and breadth of violations. The blatant assaults have become so frightening—attempted genocide, the slaughter of innocents, and wholesale destruction of places of worship—that less egregious abuses go unnoticed or at least unappreciated. Many observers have become numb to violations of the right to freedom of thought, conscience, and religion.

8th Circuit Rejects RFRA Defense To Heroin Distribution Charges

In United States v. Anderson, (8th Cir., April 28, 2017), the U.S. 8th Circuit Court of Appeals rejected Timothy Anderson's claim that his indictment on charges of heroin distribution should have been dismissed because the decision to prosecute him violated his rights under the Religious Freedom Restoration Act.  Anderson claimed that as a student of Esoteric and Mysticism studies he created a religious non-profit organization to distribute heroin to "the sick, lost, blind, lame, deaf, and dead members of Gods' Kingdom."  The court held that even if Anderson's religious beliefs were sincerely held, the government here chose the least restrictive means to achieve its compelling interest in preventing distribution of heroin to others for non-religious uses. Vox reports on the decision.

New Kentucky Law Authorizes Bible Courses In Schools

On April 11, Kentucky Governor Matt Bevin signed HB 128 (full text) which requires the Kentucky State Board of Education to create courses on the Hebrew Scriptures (Old Testament), the New Testament, and on both. The law provides that the purposes of these courses are to teach students the biblical content, characters, poetry, and narratives required to understanding contemporary society and culture, including literature, art, music, mores, oratory, and public policy. [Thanks to Tom Rutledge for the lead.]

China Bans Islamic Names For Uighur Children

The New York Times reported yesterday that China has taken further steps to "curb religious fervor" among Uighurs in the western region of Xinjiang.  It has banned parents from giving their children names that can be seen as encouraging Islamic extremism.  According to Radio Free Asia last week:

Islam, Quran, Mecca, Jihad, Imam, Saddam, Hajj, and Medina are among dozens of baby names banned under ruling Chinese Communist Party's "Naming Rules For Ethnic Minorities," an official confirmed on Thursday.

An employee who answered the phone at a police station in the regional capital Urumqi confirmed that "overly religious" names are banned, and that any babies registered with such names would be barred from the "hukou" household registration system that gives access to health care and education.

Trump Justice Department Wants Further Extension In Remanded Contraceptive Mandate Cases

Last May the U.S. Supreme Court remanded to the Third, Fifth, Tenth, and D. C. Circuits a group of cases brought by religious non-profit institutions challenging the contraceptive mandate coverage accommodation worked out by the Obama administration.  The Supreme Court, apparently split evenly on the case, urged the parties to work out a compromise. (See prior posting.)  In a letter (full text) sent to the Catholic Leadership Conference by the Trump Campaign last October, Trump said that, if elected: "I will make absolutely certain religious orders like The Little Sisters of Poor are not bullied by the federal government because of their religious beliefs." However on Monday in a Status Report (full text) filed with the 5th Circuit Court of Appeals, the Justice Department asked for the cases to be held in abeyance for another 60 days, arguing:

the new Administration has been in place for only a few months. The regulations at issue here are jointly administered by three Departments—the Department of Health & Human Services, the Department of Labor, and the Department of the Treasury—and are the subject of numerous other lawsuits being handled by the Department of Justice. The nominee to be Secretary of Labor has not yet been confirmed, and numerous subcabinet positions at the Departments have not yet been filled. The issues presented by the Supreme Court’s remand order are complex; for example, the original accommodation took more than a year to develop with input from interested parties.

NBC News reports on developments.

Indiana Legislature Passes Law Protecting Student Religious Expression In Schools

After final passage, yesterday the Indiana legislature sent HB 1024 (full text) to Gov. Eric Holcomb for his signature.  The bill authorizes public high schools to offer an elective course surveying religions of the world. The course must include historical, cultural and literary study, and must be "neutral, objective and balanced."  In a separate section, the Act prohibits public schools from discriminating against a student or the student's parent on the basis of religious viewpoint or religious expression. It provides that students may express their beliefs about religion in homework, artwork, and other written and oral assignments, which are to be judged by ordinary academic standards of substance and relevance.

The Act provides that public school students may pray or engage in religious activities or religious expressions before, during, and after the school day in the same manner and to the same extent that students may engage in nonreligious activities or expression. They may wear wear clothing, accessories, and jewelry that display religious messages or religious symbols in the same manner and to the same extent that other types of clothing, accessories, and jewelry that display messages or symbols are permitted.Religious groups are to be given the same access to school facilities as other non-curricular groups. Liberty Counsel issued a press release announcing the passage of the legislation.

Suit Says Indiana Charter School Act Violates Establishment Clause

Indiana's Charter School Act names, among the institutions that may authorize public charter schools, some 30 non-profit colleges and universities-- public, private and religious. Charter schools they authorize must be non-sectarian and non-religious.  Yesterday a non-profit advocacy organization supporting public schools filed suit against Indiana education officials contending that the Charter School Act violates the Establishment Clause as well as the no-aid cause of Indiana's constitution. The complaint (full text) in Indiana Coalition for Public Education v. McCormick, (SD IN, filed 4/25/2017) focuses on the authorization of a charter for Seven Oaks Classical School by Grace College and Seminary, an evangelical Christian college. It contends that the Act violates the Establishment Clause by delegating government power to authorize charter schools to a religious institution and by authorizing payment of public funds as an administrative fee to that religious institution. Indiana Lawyer reports on the lawsuit.

Presidential Proclamations On Yom HaShoah and Meds Yeghern

Yesterday, which was Yom HaShoah, President Trump signed a Proclamation (full text):

ask[ing]  the people of the United States to observe the Days of Remembrance of Victims of the Holocaust, April 23 through April 30, 2017, and the solemn anniversary of the liberation of Nazi death camps, with appropriate study, prayers and commemoration, and to honor the memory of the victims of the Holocaust and Nazi persecution by internalizing the lessons of this atrocity so that it is never repeated.

The text of the Proclamation has been posted on Trump's Facebook page, but has not yet appeared on the White House website.

Yesterday the President also signed a Proclamation (full text) marking Armenian Remembrance Day. As pointed out by Hurriyet, consistent with past practice the Proclamation uses the Armenian term Meds Yeghern (Great Calamity) and avoids referring to the atrocities as a "genocide."

UPDATE: And here is the full text of President Trump's speech on Tuesday at the United States Holocaust Memorial Museum National Days of Remembrance.

Israel Appoints First Woman As Judge On Muslim Religious Court

Haaretz reports that Israel has for the first time in the country's history appointed a woman to serve as a judge (qadi) in a Muslim religious court.  Government appointed religious courts in Israel have jurisdiction over personal status matters, particularly marriage and divorce.  The appointment of Hana Khatib, a family lawyer, was confirmed unanimously today by Israel's Judicial Appointments Committee.

UPDATE: Haaretz (4/27) has an interesting background piece on the appointment.

Pakistan Paper Surveys Mob Violence Following Blasphemy Accusations

Pakistan's Express Tribune today surveys Pakistan's growing problem of mob violence following accusations of blasphemy.  There have been two such incidents in the past 11 days.  According to the paper:

Between 1947 – the year of Pakistan’s creation – and 1985, only 14 cases of blasphemy were registered by law enforcement agencies. In 1986, the military regime of General Ziaul Haq made blasphemy a capital offence and broadened its classification. Since that year, over 4,000 such cases have been registered....

On March 7, 2017, an Islamabad High Court judge ... went on a diatribe against online ‘blasphemy’, declaring it a form of terrorism and demanding that the government initiate a crackdown immediately. Following this, the Pakistan Interior Minister ... condemned online ‘blasphemers’ and ordered that action be taken against them. Since then, four people have been arrested on charges of blasphemy and Facebook has managed to shut down 85% of the pages deemed blasphemous.

These developments have also encouraged certain televangelists and social media activists who have embarked on a campaign to identify individuals they deem to be offending religious sensitivities.

The lynch mobs of today have not occurred in isolation. They are no natural expressions or consequences of the Islamic faith but a direct consequence of politicians and other national institutions weaponising religion and utilising it as a political tool – a tool that recruits militants for proxy warfare in Afghanistan and Indian-occupied Kashmir and brings in conservative votes during elections.

Female Teenage Boxer Gets Religious Dress Accommodation

According to yesterday's Rochester MN Post-Bulletin, USA Boxing, the organization that oversees amateur boxing in the United States, has granted a religious accommodation to a Muslim teenager.  Amaiya Zafar will be permitted to wear a hijab and cover her arms and legs in her first sanctioned competition.

Pew Study: Global Hostility To Religion Grew In 2015

Earlier this month, the Pew Research Center released its annual study (full text) of global restrictions on religion. The 79-page report covers the year 2015 and concludes:

Government restrictions on religion and social hostilities involving religion increased in 2015 for the first time in three years....

The share of countries with “high” or “very high” levels of government restrictions – i.e., laws, policies and actions that restrict religious beliefs and practices – ticked up from 24% in 2014 to 25% in 2015. Meanwhile, the percentage of countries with high or very high levels of social hostilities – i.e., acts of religious hostility by private individuals, organizations or groups in society – increased in 2015, from 23% to 27%.  Both of these increases follow two years of declines in the percentage of countries with high levels of restrictions on religion by these measures.

When looking at overall levels of restrictions in 2015 – whether resulting from government policies and actions or from hostile acts by private individuals, organizations or social groups – the new study finds that 40% of countries had high or very high levels of restrictions, up from 34% in 2014.

Court Says Disaffiliated Church's Property Belongs To Local Congregation, Not PCUSA

In Presbytery of the Twin Cities Area v. Eden Prairie Presbyterian Church, Inc., (MN Ct. App., April 24, 2017), a Minnesota state appeals court held that it was proper to apply the "neutral principles of law"approach, rather than applying the ecclesiastical abstention doctrine, to decide ownership of property of a congregation which had disaffiliated from the Presbyterian Church USA.  Affirming the trial court, the Court of Appeals held that the property belongs to the local congregation despite the trust clause in PCUSA's Book of Order.

Criminal Complaints Filed Against JCC Bomb Threat Perpetrator

The Department of Justice announced that on Friday criminal complaints were filed against Michael Kadar, a dual American-Israeli citizen living in Israel, who allegedly telephoned bomb threats to Jewish institutions around the U.S. earlier this year. According to the Criminal Complaint filed in federal district court in Florida:

Beginning on January 4, 2017, and continuing until March 7, 2017, an individual, later identified as KADAR, made at least 245 threatening telephone calls involving bomb threats and active shooter threats. A significant portion of the threats targeted Jewish community centers ("JCCs"), and other historically Jewish institutions such as Jewish schools and Anti-Defamation League offices.

A Criminal Complaint was also filed against Kadar in a Georgia federal district court charging him with making a series of "swatting" calls to public schools and residences in Athens, Georgia.  The Forward reports on developments. [Thanks to Michael Lieberman for the lead.]

UPDATE: In Israel today, Kadar was charged in a Tel Aviv Magistrate's Court with various other crimes, including an attempt to extort a U.S. Senator, Ernesto Lopez. (Haaretz).

Recent Articles of Interest

From SSRN:

• Valeriano Diviacchi, Why Tolerate Law? (April 7, 2017).
• Eric Owusu Boahen & Emmanuel C. Mamatzakis, The Moderating Effect of Legal Environment on Culture and Religiosity Towards Classification Shifting Behaviour – Global Evidence, (April 9, 2017).
• Cameron Rode, Faith, Football, and the First Amendment: Threading the Needle between Establishment and Free Exercise, (November 21, 2016).
• Carl H. Esbeck, Do Discretionary Religious Exemptions Violate The Establishment Clause?, (University of Missouri School of Law Legal Studies Research Paper No. 2017-13 (2017)).
• Heidi Brady & Robin Fretwell Wilson, The Future of Religious Liberty Protections in Illinois: Harmonizing Religious Exercise and Legitimate Government Concerns, (Chapter 2, In: An Illinois Constitution for the Twenty-First Century, 2017).
• Amos A. Israel-Vleeschhouwer, Introducing Jews' Law Through the Study of Genocide and Rape, (Jewish Law Association Studies XXVI (2016), 70-109).
• Elizabeth Hubertz, Loving the Sinner: Evangelical Colleges and Their LGB Students, (35 Quinnipiac Law Review 147 (2017)).
• Michael J. Bazyler, The Holocaust at Nuremberg: What the Record Reveals, (Loyola of Los Angeles International and Comparative Law Review, Vol. 39, 2017).
• Iain T. Benson, Getting Religion and Belief Wrong by Definition: Why Atheism and Agnosticism Need to Be Understood as Beliefs and Why Religious Freedom Is Not 'Impossible': A Response to Sullivan and Hurd, (April 20, 2017).

From SSRN (Legal Issues and Islam):

• Ahmed A. Altawyan, Rethinking Gender Equality in the Workplace, (Review of Integrative Business and Economics Research, Vol. 6, No. 2, pp.142-146, April 2017).
• Andrea Pin, Is There a Place for Islam in the West? Adjudicating the Muslim Headscarf in Europe and the United States, (Notre Dame Law Review, Forthcoming).
• Lucas Newbill, A Nurse's Face: The Burqa in the Hospital, (North Carolina Central Law Review. Vol. 39, Pg. 33, 2017).

Recent Prisoner Free Exercise Cases

In Jenkins v. Campose, (9th Cir., April 21, 2017), the 9th Circuit, reversing the ditrict court in part, held that defendants failed to show that a prohibition on wudhu in one of the prison restrooms is rationally related to a legitimate and neutral governmental objective.

In Nevels v. Chapman, 2017 U.S. Dist. LEXIS 59530 (ED AR, April 19, 2017), an Arkansas federal district court adopted a magistrate 's recommendation (2017 U.S. Dist. LEXIS 59620, March 28, 2017) and dismissed an inmate's complaint that on one occasion his lunch tray contained pork which he will not eat for religious reasons

In Goddard v. Alexakos, 2017 U.S. Dist. LEXIS 57951 (ED KY, April 17, 2017), a Kentucky federal district court allowed an inmate to proceed with his complaint that authorities do not permit The Way (a non-Protestant Christian group) to hold separate worship services.

In Wright v. Hauffman, 2017 Pa. Commw. Unpub. LEXIS 285 (PA Commw., April 21, 2017), a Pennsylvania appellate court reversed the dismissal of an inmate's claim that Nation of Islam group religious services were not available.

In Hill v. Skrah, 2017 U.S. Dist. LEXIS 57279 (D OR, April 11, 2017), an Oregon federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 57430, March 14, 2017) and dismissed on qualified immunity grounds an inmate's complaint that he was not given kosher meals.

In Smith v. Wildermuth, 2017 U.S. Dist. LEXIS 57318 (ND NY, April 14, 2017), a New York federal district court permitted a Muslim inmate to move ahead with his retaliation claim (but not his free exercise claim) stemming from his refusal to interrupt his prayer to respond to a corrections officer.

3 Indicted In Detroit On Charges of Female Genital Mutilation

On Thursday, the U.S. Attorney's Office for the Eastern District of Michigan announced the arrest of a Detroit physician and his wife on charges of violating the federal ban on female genital mutilation. (Full text of criminal complaint.) Fakhruddin Attar and his wife Farida were charged with conspiring with Dr. Jumana Nagarwala who was arrested earlier this month in Detroit and ordered detained on pending trial. (Press release and criminal complaint in Nagarwala case.) As reported yesterday in a background article in the Detroit Free Press:

All three defendants  belong to a small, Indian-Muslim community known as the Dawoodi Bohra, whose members say genital cutting is a deeply entrenched social and cultural norm, with some women viewing it as normal as having a period. Celebration parties are held after the cuttings, and the women and girls are supposed to keep it a secret. One of the key reasons for the procedure, victims say, is to curb a woman's sexuality.

According to an earlier Detroit Free Press report:

Nagarwala has claimed through her lawyer that she did not engage in any actual cutting, but rather that she removed a membrane from the genital area using a "scraper" and gave it to the parents to bury in the ground as part of a religious custom within  the Dawoodi Bohra community.

On Friday, Anjuman-e-Najmi Detroit, an umbrella organization for the Dawoodi Bohra community in Detroit, issued a statement reading in part:

The Dawoodi Bohras do not support the violation of any U.S. law, local, state or federal.  We offer our assistance to the investigating authorities. Any violation of U.S. law is counter to instructions to our community members.  It does not reflect the everyday lives of the Dawoodi Bohras in America.

Apparently these are the first defendants charged under 18 USC 116 prohibiting female genital mutilation.

Pence In Jakarta Praises Moderate Islam

Vice President Mike Pence's comments at his press conference in Jakarta, Indonesia on Thursday led Haaretz to run an article titled Pence's Visit to Indonesia Another Strike in Internal White House Battle Over Islam.  In his remarks to the press (full text), Pence said in part:

As the second and third largest democracies in the world, our two countries share many common values -- including freedom, the rule of law, human rights, and religious diversity.

 The United States is proud to partner with Indonesia to promote and protect these values, the birthright of all people....

Later today I’m greatly humbled to have the privilege to visit Indonesia’s national mosque, where I’ll have the opportunity to speak with leaders of many faiths.

And, Mr. President, I’m very much looking forward to that visit and that honor.  

 As the largest majority Muslim country, Indonesia’s tradition of moderate Islam, frankly, is an inspiration to the world.  And we commend you and your people. 

In your nation, as in mine, religion unifies -- it doesn’t divide.  It gives us hope for a brighter future, and we are all grateful for the great inspiration that Indonesia provides for the world.

Pence Meets With Interfaith Leaders In Indonesia

Yesterday, as part of his trip to Asia, Vice President Mike Pence met with interfaith religious leaders in Indonesia.  The White House readout on the meeting (full text) in addition to listing the 17 participants said:

Today, Vice President Mike Pence participated in an interfaith dialogue with faith leaders of Islam, Buddhism, Christianity, Hinduism, and Confucianism at the conclusion of his tour of the Istiqlal Mosque in Jakarta, Indonesia. Vice President Pence expressed appreciation to Indonesia for its shared commitment to religious freedom and reaffirmed that the United States will continue to defend this fundamental freedom, at home and abroad.

9th Circuit Judge John Noonan Dies At Age 90

Ninth Circuit Senior Judge John T. Noonan, Jr. died on April 17 at the age of 90. A News Release from the 9th Circuit described Noonan as "a distinguished jurist and an eminent scholar with a particular focus on the historical development of moral concepts." Before he was appointed to the bench, Noonan was a law professor at Notre Dame and then at Boalt Hall.  He was also a prolific scholar, as pointed out by the same News Release:

His major publications include 13 books, most notably “Bribes,” a magisterial historical study of bribery published in 1984; “The Lustre of Our Country: The American Experience of Religious Freedom,” a 1998 tome tracing the origins of religious freedom back to the Founders; and “Contraception: A History of Its Treatment by the Catholic Theologians and Canonists.” Published in 1966, “Contraception” is said to have influenced Pope Paul VI to create a commission to study the issue, to which Judge Noonan served as an advisor.

Canadian Provinces May Not Fund Non-Catholic Students In Catholic Schools

Canada's Constitution Act of 1867 (Sec. 93) guarantees Catholics and Protestants in the three Canadian provinces of Alberta, Saskatchewan and Ontario the right to petition the provincial government to create a separate denominational school for them when they comprise a minority in a school attendance area. In Good Spirit School Division No. 204 v. Christ the Teacher Roman Catholic Separate School Division No. 212, (QB Sask., April 20, 2017), a Saskatchewan trial court in a 230-page opinion held that it is a violation of Canada's Charter of Rights and Freedoms for the provincial government to provide funding for non-Catholic students at government-supported Catholic schools.  The court held that Catholic separate schools have no constitutional right to receive funding for non-Catholic students and that it violates the province's duty of religious neutrality, as well as guarantees of equality, to fund non-minority faith students in denominational schools.  Global News reports on the decision.

Woman Sues Claiming Her Firing Was For Not Being Christian Enough

Suit was filed earlier this week in a Texas trial court by a managerial employee of Gulf Winds International who alleges that she was fired because she was not Christian enough.  The complaint (full text) in Thomson v. Gulf Winds International, Inc., (TX  Dist. Ct., filed 4/18/2017) alleges that the company "discriminated and retaliated against Plaintiff based on religion and because of her opposition of forced religious material in the work place in violation of the Texas Commission on Human rights Act...." Courthouse News Service reports on the lawsuit.

Russian Supreme Court Judge Bans Jehovah's Witness Organizations As Extremist Groups

According to Forum 18, in Russia yesterday, after six days of hearings Supreme Court Judge Yury Ivanenko declared the Jehovah's Witness national headquarters in St. Petersburg and all 395 of its local organizations to be "extremist" organizations.  The judgment bans all their activity and orders their property seized by the state. According to Tass, the full text of the judge's decision will be furnished to the parties within five days.  Jehovah's Witnesses now have 30 days to appeal the decision to a 3-judge appellate panel of the Supreme Court.  If that panel affirms the decision, Jehovah's Witnesses plan to appeal to the European Court of Human Rights. If the judgement is ultimately upheld, it will be illegal for Jehovah's Witnesses to engage in any kind of missionary activity in Russia.

Defense Department Expands List Of Recognized Faith and Belief Groups

Section 533 of the National Defense Authorization Act of 2013 called on the military to accommodate the conscience and moral beliefs, as well as religious beliefs, of members of the Armed Forces.In a Memorandum dated March 27, 2017, the Pentagon, after review by the Armed Forces Chaplains Board, issued an expanded list of faith and belief groups, expanding on a list (at pg. 46) last updated in 2013.  The new list includes Pagan and Humanist, as well as listing separately a number of religions that were previously consolidated under a broader classification. The American Humanist Association this week issued a press release "applaud[ing] the Department of Defense (DoD) for recognizing Humanism as a belief system protected by the Department’s ethical standards."

Christian Solidarity Worldwide Recognized BY UN As NGO

According to AP, yesterday the United Nations Economic and Social Council voted 28-9 (with 12 abstentions) to accredit the British-based Christian Solidarity Worldwide as a non-governmental organization, giving it consultative status. Christian Solidarity is an organization that promotes religious freedom. The grant of consultative status will give the group the right to attend meetings at the Geneva-based U.N. Human Rights Council.  The organization had originally applied for accreditation in 2009, but ECOSOC's 19-member accreditation committee repeatedly deferred action on the bid.  Wednesday's full ECOSOC vote granted an appeal against a further delay recommended in February by the accreditation committee. Christian Solidarity worldwide issued a press release on the matter.

Catholic Hospital Sued Over Refusal Of Gender Reassignment Surgery

A transgender male filed suit this week in a California state trial court against Dignity Heath.  Following Ethical and Religious Directives for Catholic Health Care Services that prohibit direct sterilization, Dignity Health's Mercy San Juan Medical Center refused to perform a hysterectomy as part of plaintiff's treatment for gender dysphoria. The complaint (full text) in Minton v. Dignity Health, (CA Super. Ct., filed 4/19/2017), contend that the refusal constitutes discrimination on the basis of sex in violation of the Unruh Civil Rights Act.  ACLU issued a press release announcing the filing of the lawsuit. Sacramento Bee reports on the suit.

9th Circuit Hears Oral Arguments In Falun Gong's Suit Against Cisco

On Tuesday, the U.S. 9th Circuit Court of appeals heard oral arguments (video of full arguments) in Doe v. Cisco Systems, Inc.  In the case, a California federal district court dismissed a lawsuit by Falun Gong practitioners that claimed Cisco aided and abetted and conspired with the Chinese Communist Party and Public Security officers in committing human rights abuses against Falun Gong. (See prior posting.) Courthouse News Service reports on the oral arguments.

Assistant Principal Sues Over Christian Parents' Objections To Yoga

Atlanta Journal Constitution yesterday reported on a lawsuit filed in federal district court in Georgia by Bonnie Cole, an assistant principal in the Cobb County schools, who says she was forced out of the school in which she originally served after Christian parents objected to her introduction of yoga as a method of calming disruptive students. The paper recounts:

Cole, who says she is a Christian, says school leaders and ultimately the school board buckled under pressure from parents who held a prayer rally at Bullard “for Jesus to rid the school of Buddhism.” The next day, two women put their hands on Cole’s office window and prayed.

“Not only was the capitulation and transfer a humiliating and public demonstration of the district’s lack of support of Ms. Cole, it made clear to the community that religious activities will be allowed as long as they are part of the “accepted” religion of Christianity,” her lawsuit says.

Alabama Supreme Court Affirms Suspension of Chief Justice Over Defiance of Same-Sex Marriage

Yesterday, a specially composed panel of judges sitting as the Supreme Court of Alabama unanimously affirmed the judgment of the Alabama Court of the Judiciary suspending Alabama Supreme Court Chief Justice Roy Moore for the remainder of his term. Six judges joined in the court's opinion, while one judge concurred only in the result. In Moore v. Alabama Judicial Inquiry Commission, (AL Sup. Ct., April 19, 2017), the court in a 66-page opinion agreed that Moore violated various provisions of the Code of Judicial Ethics when he issued directions to Alabama judges to refuse to issue marriage licenses to same-sex couples despite federal court decisions and orders to the contrary, including the Supreme Court's Obergefell decision.  AL.com reports that Moore remains defiant

Supreme Court Hears Arguments In Trinity Lutheran; Transcript Available

Today, the U.S. Supreme Court heard oral arguments in Trinity Lutheran Church of Columbia, Inc. v. Comer.  The transcript of the full oral arguments is now available. At issue was the refusal by Missouri's Department of Natural Resources of a grant application by Trinity Church for a grant that would allow it to resurface a playground at its day care and preschool facility on church premises. In refusing the grant, the Department pointed to Missouri Constitution, Art. I Sec. 7, that prohibits public funds from being spent "in aid of any church, section or denomination of religion." (See prior posting.)  Amy Howe at SCOTUSblog reports on the oral arguments.

8th Circuit: Abuse Victim's Defamation Suit Is Untimely

In Couzens v. Donohue, (8th Cir., April 18, 2017), the U.S. 8th Circuit Court of Appeals affirmed dismissal on statute of limitations grounds of a defamation suit against the Catholic League for Religious Liberty.  In the suit, plaintiff alleged that defendants published false information to discredit and humiliate him in retaliation his public allegations that he was sexually abused by priests. The court likewise affirmed dismissal of plaintiff's invasion of privacy and negligent infliction of emotional distress claims. Kansas City Star reports on the decision.

Suit Says Clerk Harassed Same-Sex Couples Seeking Marriage Licenses

A suit was filed earlier this week in a West Virginia federal district court contending that personnel in the Gilmer County Clerk's Office harassed same-sex couples applying for marriage licenses.  The complaint (full text) in Brookover v. Gilmer County, (D WV, filed 4/17/2017), alleges in part:

When Deputy Clerk Debbie Allen saw that a same-sex couple was applying for a marriage license, she ... launched into a tirade of harassment and disparagement. She slammed her paperwork down on her desk, screaming that the couple was an “abomination” to God and that God would “deal” with them.... Another clerk joined in ... by shouting “it’s [Allen’s] religious right” to harass same-sex couples while performing the official state duties of the Clerk’s office.

Americans United issued a press release announcing the filing of the lawsuit.

Court Enters Housing and Policing Injunctions Against FLDS-Dominated Towns

In United States v. Town of  Colorado City, Arizona, (D AZ, April 18, 2017), an Arizona federal district court took major steps to attempt to normalize the housing and policing situation in the FLDS-controlled twin towns of Colorado City, Arizona and Hilldale, Utah.  The Justice Department sued the towns under the Fair Housing Act and the Policing Act (42 USC §14141).  In introducing its 54-page opinion setting out detailed injunctive relief, the court said;

The constitutional right to free exercise of religion, on the one hand, and the statutory right to housing and constitutional policing, on the other hand, are vitally important to a viable, peaceful community.... Denial of housing rights and lawful policing to some residents at the behest of the Fundamentalist Church of Jesus Christ of Latter Day Saints ... has cost the cities dearly – millions of dollars – in the past.

.... It is now time for the citizens of Colorado City and City of Hildale to come together and accept the fact that communal ownership of residential property in the Defendant Cities is a thing of the past. All residents of the Defendant Cities must be afforded equal access to housing and residential services, to nondiscriminatory law enforcement, and to free exercise of their religious preferences that are not contrary to law. By this judgment and decree, the court hopes to assist the Defendant Cities and their residents in advancing the protection of civil rights to which they are entitled.

The court ordered the cities to engage an independent monitor to assure housing compliance and hiring of an outside consultant to aid in reorganization and policy changes in the Colorado City Marshall's Office.

Note To Religion Clause Readers

You may have noticed that postings have not appeared in recent days.  I hope to be able to get back to blogging regularly before the end of the month. Please stay tuned.

British Controversy Over Name of Easter Egg Hunt

Washington Post last week reported that in England, Prime Minister Theresa May and the Church of England harshly criticized a move by the National Trust (a charity that promotes conservation) to rebrand its annual Easter Egg Hunt as merely the "Great British Egg Hunt" in order to attract non-Christian children as well. The event is co-sponsored with the candy maker Cadbury whose chocolate eggs are used in the event. Prime Minister May, during her trip to Jordan, said: "I think what the National Trust is doing is frankly just ridiculous. Easter’s very important. It’s important to me, it’s a very important festival for the Christian faith for millions across the world." After the criticism, the National Trust added the word Easter to the description of the event on its website. [Thanks to Scott Mange for the lead.]

Trump Will Host White House Passover Seder

Times of Israel reports that President Donald Trump will host a White House Passover Seder tonight, continuing a tradition begun by President Barack Obama in 2009.

Recent Articles of Interest

From SSRN:

• Sohail Wahedi, Council of State of Belgium and the Ban on Wearing Religious Symbols at Public Schools (The Headscarves Judgement), (Oxford Journal of Law and Religion (2016) 5 (3): 624-625).
• Luke Beck, The Australian Constitution's Religious Tests Clause as an Anti-Discrimination Provision, (Monash University Law Review, Vol. 42, No. 3, pp. 545-578, 2017).
• Corey L. Brettschneider, Praying for America: The Constitutional Ban on Animus-Based and Theocratic Reasoning in the Establishment, Free Exercise and Equal Protection Clauses, (March 1, 2017).
• Maarc O. DeGirolami, The Bloating of the Constitution: Equality and the U.S. Establishment Clause, (The Social Equality of Religion or Belief (Alan Carling ed. 2016)).
• Stephen R. Munzer, The German Circumcision Controversy — And Beyond, (University of Pennsylvania Journal of International Law Online (2017)).
• Shauna Van Praagh, Welcome to the Neighbourhood: Religion, Law and Living Together, (D. Newman, ed., Religious Freedom and Communities (Markham: Lexis Nexis, 2016)).
• Muhammad Masum Billah, Agency Contract under Conventional Law and Islamic Law as Manifested in the Civil Code of Oman: A Comparative Analysis, (Electronic Journal of Islamic and Middle Eastern Law, Vol. 4 (2016), pp. 109-126).
• Ian Ramsay & Miranda Webster, Registered Charities and Governance Standard 5: An Evaluation, (Australian Business Law Review, Vol. 45, No. 2, pp. 127-158, 2017).

From SmartCILP:

• Joseph Kary, Judgments of Peace. Montreal's Jewish Arbitration Courts, 1914-1976, 56 American Journal of Legal History 436-489 (2016).
• Kyle C. Velte, All Fall Down: A Comprehensive Approach to Defeating the Religious Right’s Challenges to Antidiscrimination Statutes, 49 Connecticut Law Review 1-54 (2016).
• John Boersma, The Accreditation of Religious Law Schools in Canada and the United States, 2016 BYU Law Review 1081.
• Barry W. Bussey, The Legal Revolution Against the Place of Religion: The Case of Trinity Western University Law School, 2016 BYU Law Review 1127.
• David Little, Human Rights, Religious Freedom, and Peace, 2016 BYU Law Review 1215.
• Michael Quinlan, When the State Requires Doctors to Act Against their Conscience: The Religious Freedom Implications of the Referral and the Direction Obligations of Health Practitioners in Victoria and New South Wales, 2016 BYU Law Review 1237.
• Andrew L. Milne, Sharia and Anti-Sharia: Ethical Challenges for the Cross-Cultural Lawyer Representing Muslim Women, [Abstract], 57 South Texas Law Review 449-468 (2016).
• R.H. Helmholz, The Church and Magna Carta, 25 William & Mary Bill of Rights Journal 425-436 (2016).

Recent Prisoner Free Exercise Cases

In Matzke v. Heyns, 2017 U.S. Dist. LEXIS 44880 (WD MI, March 28, 2017), a Michigan federal district court adopted in part a magistrate's recommendation and held that authorities are entitled to qualified immunity as to claims by a Wiccan inmate for additional group meetings to celebrate the thirteen lunar Esbats.

In Reed v. Bryant, 2017 U.S. Dist. LEXIS 45013  (WD OK, March 28, 2017), an Oklahoma federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 45715, Feb. 6, 2017), and dismissed an inmate's complaint that he was not provided his religious Kosher diet on one occasion and was removed from the Kosher diet for a violation of rules.

In Fernandez-Torres v. Watts, 2017 U.S. Dist. LEXIS 46841 (SD GA, March 29, 2017), a Georgia federal district court supplemented and adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 48167, Jan. 30, 2017) and dismissed an inmate's complaint that he was not permitted to obtain Santeria bead necklaces from outside sources rather than through the prison's approved vendor catalog.

In Munt v. Minnesota Department of Corrections, 2017 U.S. Dist. LEXIS 47991 (D MN, March 29, 2017), a Minnesota federal district court, adopting in part a magistrate's recommendation (2017 U.S. Dist. LEXIS 48082, Jan. 27, 2017), denied preliminary relief to a Christian inmate who objected on religious grounds to rules that prevent him from hanging a privacy sheet in his cell.

In Sterling v. Sellers, 2017 U.S. Dist. LEXIS 48700 (MD GA, March 31, 2017), a Georgia federal district court, rejecting parts of a magistrate's recommendations (2017 U.S. Dist. LEXIS 49095, Feb. 28, 2017), allowed a Muslim inmate to proceed with various claims as to denial of congregational prayer, inability to celebrate the Eid, and retaliation.

In Horacek v. Heyns, 2017 U.S. Dist. LEXIS 48778 (WD MI, March 31, 2017), a Michigan federal district court adopted a magistrate's recommendations and allowed a Jewish inmate to move ahead with his claim that his religious beliefs require that he eat meat or fish on Saturdays and holy days.  In deciding this, the court held that RLUIPA applies even though the prison's food service program did not separately receive federal financial assistance; it is enough that the Department of Corrections does.

No 1st Amendment Bar To Deciding Catholic College's Student Expusion

In Chestnut Hill College v. Pennsylvania Human Relations Commission, (PA Commnwlth. Ct., April 7, 2017), the Pennsylvania Commonwealth Court (an appellate court) held that a Catholic college’s decision to expel a student is reviewable by the Pennsylvania Human Relations Commission.  The college expelled an African American student a few weeks before his scheduled graduation, allegedly because the student retained some of the proceeds from events that were held for a charitable cause.  The student claimed this was a pretext for racial discrimination.

The court held that Catholic colleges and universities are "public accommodations" under the state's Human Relations Act.  It held that adjudicating the claim would not involve unconstitutional entanglement between church and state, saying:

Student’s claims do not require the Commission to construe religious doctrine. Importantly, College did not identify any Catholic doctrine as grounds for Student’s expulsion.

The court also emphasized that the college "did not cite any religious doctrine based defense to Student’s racial discrimination claims."

European Court Says German Church Taxes Do Not Violate Religious Freedom

In Case of Klein and Others v. Germany, (ECHR, April 6. 2017), the European Court of Human Rights in a Chamber Judgment held that Germany's church taxes do not violate Article 9 (freedom of religion) of the European Convention on Human Rights.  The holding is summarized in the press release on the case issued by the Court:

[I]n these cases the taxes/fees had been levied not by the State, but by the applicants’ churches – which the applicants were free to leave under German law. As such, in most of the cases the levying and calculation of the taxes/fees had been an autonomous church activity, which could not be attributed to the German State.

However, in one case the State had been involved in levying a special church fee on an applicant who was not a member of the relevant church. This was because the fee which had been levied on the applicant’s wife had been subtracted directly from the applicant’s tax reimbursement claim by way of an off-set – therefore subjecting the applicant to his wife’s financial obligations towards her church. However, this off-set had arisen because the couple themselves had chosen to file a joint tax assessment....

DOJ Gives New Emphasis To Combating Religious Hate Crimes

Attorney General Jeff Sessions yesterday issued a Memo (full text) to U.S. Attorney’s Offices and Department of Justice component heads giving an update on DOJ's Task Force on Crime Reduction and Public Safety. The Task Force will work through a number of subcommittees, one of which is a Hate Crimes Subcommittee. The Memo reads in part:

We must also protect the civil rights of all Americans, and we will not tolerate threats or acts of violence targeting any person or community in this country on the basis of their religious beliefs or background.  Accordingly, the Hate Crimes Subcommittee will develop a plan to appropriately address hate crimes to better protect the rights of all Americans.  As with many other areas of the Task Force's work, we are already making significant progress toward our goal of a safer America.  Recently, the Federal Bureau of Investigation, working with law enforcement partners in Israel and elsewhere, helped secure the arrest of a man believed to be responsible for the recent surge in threats of violence against Jewish community centers and synagogues.  I commend their outstanding efforts.

CNN reports on the Sessions Memo.

Objectors To Assisted Suicide Lack Standing To Challenge Vermont Law

In Vermont Alliance for Ethical Health Care, Inc. v. Hoser, (D VT, April 5, 2017), a Vermont federal district court dismissed for lack of standing a suit challenging Vermont's law which protects physicians who prescribe a lethal dose of medication to terminally ill patients who meet specified requirements.  Plaintiffs, two organizations whose members are healthcare providers holding religious and ethical opposition to assisted suicide, sought injunctions shielding from professional disciplinary action healthcare providers who for religious or ethical reasons refuse to inform patients that assisted suicide is an available option.  the court said in part:

The prospect of imminent harm through the filing of disciplinary proceedings in the future is highly unlikely. The parties largely agree on a solution to their dilemma which satisfies both sides. They agree that making a false statement or ignoring a patient's inquiry is wrong. Both agree that directing a patient to a website explaining the conditions under which assisted suicide might be available will neither violate religious principles nor fall short of the physician's obligation to provide information to the patient.

Recent Prisoner Free Exercise Cases

In Williams v. Bedison, 2017 U.S. Dist. LEXIS 42553 (ND TX, March 23, 2017), a Texas federal district court adopted in part a magistrate's recommendations (2017 U.S. Dist. LEXIS 42629, March 3, 2017) and dismissed an inmate's complaint that no separate services are held for Moorish Science Temple of America members.

In Chichakli v. Cheatham, 2017 U.S. Dist. LEXIS 43408 (SD FL, March 22, 2017), a Florida federal magistrate judge recommended dismissing an inmate's complaint that an officer insulted his Jewish faith, and that he was denied access to his prayer book, bible and tefillin for 42 days while he was in segregated detention.

In Moir v. Amdahl, 2017 U.S. Dist. LEXIS 43462 (SD IL, March 24, 2017), an Illinois federal district court permitted an inmate who was a member of the Al-Islam faith to move ahead with a claim that on two occasions he was prevented from attending Jumah services and was targeted for harassment because of his race and religion.

In Kugler v. Rao, 2017 U.S. Dist. LEXIS 44044 (CD IL, March 24, 2017), an Illinois federal district court rejected religious objections to taking psychtropic drugs raised by a civilly committed inmate, finding that forcible administration did not violate his rights under RLUIPA. Plaintiff was a Satanist who followed the Ninth Enochian Key.

In Seagraves v. Treachler, 2017 U.S. Dist. LEXIS 44210 (D NJ, March 27, 2017), a New Jersey federal district court permitted an inmate to file an amended complaint charging the warden with denying Muslim inmates' requests for vegetarian meals.

In Koch v. Carlisle, 2017 U.S. Dist. LEXIS 43141 (WD OK, March 24, 2017), an Oklahoma federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 44531, March 2, 2017) and allowed a Satanist inmate to move ahead with his complaint that he was denied the right to celebrate the Festival of the Winter Solstice on the proper date.

UN Experts Urge Russia to Drop Extremism Suit Against Jehovah's Witnesses

Yesterday, in anticipation of today's hearing before Russia's Supreme Court, the United Nations Office of the High Commissioner on Human Rights issued a press release urging the Russian Federation to drop a suit brought under Russia's anti-extremism legislation against all Jehovah's Witnesses congregations. According to the press release, which quotes three UN human rights experts:

"This lawsuit is a threat not only to Jehovah’s Witnesses, but to individual freedom in general in the Russian Federation...."

"The use of counter-extremism legislation in this way to confine freedom of opinion, including religious belief, expression and association to that which is state-approved is unlawful and dangerous, and signals a dark future for all religious freedom in Russia...."　

The condemnation follows a lawsuit lodged at the country’s Supreme Court on 15 March to declare the Jehovah’s Witnesses Administrative Centre ‘extremist’, to liquidate it, and to ban its activity. 　

A suspension order came into effect on that date, preventing the Administrative Centre and all its local religious centres from using state and municipal news media, and from organizing and conducting assemblies, rallies and other public events.

5th Circuit Hears Arguments On Mississippi's Conscience Protection Law

The U.S. 5th Circuit Court of Appeals on Monday heard oral arguments (audio of full arguments) in Barber v. Bryant.  In the case, a Mississippi federal district court issued a preliminary injunction against enforcement of Mississippi House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act.  The law protects a wide variety of conduct, or refusals to provide goods and service, based on a religious or moral belief that: (1) marriage is a union of one man and one woman; (2) sexual relations should be reserved to heterosexual marriage; and (3) gender is an immutable characteristic determined by anatomy and genetics at the time of birth. (See prior posting.)  Buzzfeed has extensive coverage of the oral arguments.

7th Circuit En Banc: Title VII Bars Sexual Orientation Discrimination

In an important decision handed down yesterday, the U.S. 7th Circuit Court of Appeals sitting en banc held in an 8-3 decision that under title VII of the 1964 Civil Rights Act, discrimination on the basis of sexual orientation is a form of sex discrimination.  In Hively v. Ivy Tech Community College of Indiana, (7th Cir., April 4, 2017), Chief Judge Wood in her majority opinion stated in part:

The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.

The lawsuit was filed by an adjunct professor who was rejected for full time positions and whose part-time contract was not renewed. She believes these actions were taken because she is a lesbian.

Judge Posner filed an interesting concurring opinion focusing on the issue of originalism in statutory interpretation.  He said in part:

It is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII. I had graduated from law school two years before the law was enacted. Had I been asked then whether I had ever met a male homosexual, I would have answered: probably not; had I been asked whether I had ever met a lesbian I would have answered “only in the pages of À la recherche du temps perdu.” Homosexuality was almost invisible in the 1960s. It became visible in the 1980s as a consequence of the AIDS epidemic; today it is regarded by a large swathe of the American population as normal. But what is certain is that the word “sex” in Title VII had no immediate reference to homosexuality; many years would elapse before it could be understood to include homosexuality.

A diehard “originalist” would argue that what was believed in 1964 defines the scope of the statute for as long as the statutory text remains unchanged, and therefore until changed by Congress’s amending or replacing the statute. But as I noted earlier, statutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning.

Judge Flaum joined by Judge Ripple also filed a concurring opinion.

Judge Sykes, joined by Judges Bauer and Kanne dissented, saying in part:

The majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion. So does Judge Posner in his concurrence. Neither is faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted. The result is a statutory amendment courtesy of unelected judges. Judge Posner admits this; he embraces and argues for this conception of judicial power. The majority does not, preferring instead to smuggle in the statutory amendment under cover of an aggressive reading of loosely related Supreme Court precedents. Either way, the result is the same: the circumvention of the legislative process by which the people govern themselves.

Advocate reports on the decision.

Court Dismisses Fanciful Suit Designed To Discredit Same-Sex Marriage

A Kentucky federal district court has dismissed a rather fanciful lawsuit filed by opponents of same-sex marriage designed to emphasize plaintiffs' belief that only traditional marriage should be recognized.  In Sevier v. Bevin, (ED KY, March 31, 2017), the court describes plaintiffs' claims:

They identify themselves as "machinist" and "zoophile", respectively, and, together, allege the Commonwealth violated the following constitutional rights by denying Sevier's request for a marriage license permitting him marry his laptop and Ording's request for a marriage license permitting her to many an animal: (1) the right to due process; (2) the right to equal protection; (3) the right to freedom of association; and ( 4) the right to travel. They also claim that the denial of their request for a marriage license is a violation of the Supremacy and Establishment Clauses of the United States Constitution, and also amounts to discrimination on the basis of race.

The court concluded that: "The Plaintiffs' Complaint or Amended Complaint fail to establish any plausible entitlement to relief. "  In a press release on the decision, Liberty Counsel's Mat Staver said: "To marry a laptop computer or a parrot is nonsense, but the same was said about same-sex marriage, and yet there are now five lawyers on the U.S Supreme Court who pulled that rabbit out of a hat."

Case Charging HUD With Antisemitism In Investigation Moves Ahead

In Township of Lakewood, New Jersey v. Castro, (D NJ, April 3, 2017), a New Jersey federal district court refused to dismiss on the pleadings a lawsuit against the Department of Housing and Urban Development alleging that its investigation of the housing assistance program in Lakewood, New Jersey reflected hostility toward Jews and the practice of Orthodox Judaism. Among other things, the court found that "Plaintiffs’ allegations plausibly suggest HUD’s conduct imposed a substantial burden on Plaintiffs’ exercise of their faith, in violation of the RFRA...." HUD's action ultimately resulted in administration of housing funds being transferred away from Lakewood.

Recent Articles of Interest

From SSRN:

• Rafael Domingo, God and the Secular Legal System: Introduction, (Cambridge University Press, 2016).
• Ronald J. Krotoszynski Jr., Agora, Dignity, and Discrimination: On the Constitutional Shortcomings of 'Conscience' Laws that Promote Inequality in the Public Marketplace, (Lewis & Clark Law Review, Vol. 20, 2017).
• Rafael Domingo, Why Tolerate Religion? A Response to Brian Leiter, (March 21, 2017).
• Jonathan R. Cohen, A Genesis of Conflict: The Zero-Sum Mindset, (17 Cardozo Journal of Conflict Resolution 427 (2016)).
• Ioana Cismas, Reflections on the Presence and Absence of Religious Actors in Transitional Justice Processes: On Legitimacy and Accountability, (Roger Duthie and Paul Seils, eds., Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies (ICTJ, 2017), pp. 302-343.
• Nuno Ferreira, Commentary on the Re-Written Judgment in R (on the Application of Begum) V. Governors of Denbigh High School, (Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore, Children’s Rights Judgments, Hart, 2017 (Forthcoming)).
• Anthony Michael Kreis, Against Gay Potemkin Villages: Title VII and Sexual Orientation Discrimination, (96 Texas Law Review Online (2017).
• Thomas Wooden, Indigenous Sacred Sites as Cultural Property, (RUMLAE Research Paper No. 17-05 (2017).
• Peter J. Smith & Robert W. Tuttle, Civil Procedure and the Ministerial Exception, 86 Fordham Law Review (Forthcoming).

From SSRN (Legal History):

• Nico Schröter, Nico, Order, Authority, and Law: On the Development of Modern Conceptions of Political Order, Legitimate Rule, and Law and How They are Challenged, (LSE Law Review vol. 2 (2017), pp. 24-44).
• M.C. Mirow, Juan Solórzano Pereira,(in Rafael Domingo and Javier Martinez-Torron, Great Christian Jurists in Spanish History (Cambridge University Press, 2017)).
• C.G. Bateman, Supreme Court of the Roman Empire: Constantine's Bishops,(March 21, 2017).

From SmartCILP:

• Nathalie Martin, Right Scholarship and the Goddesses of Commercial Law, 34 Columbia Journal of Gender & Law 124-158 (2016).
• Kim E. Clark, Critical Race Theory, Transformation and Praxis, 45 Southwestern Law Review 795-823 (2016).
• James G. Wilson, Bridging the Secular-Religious Divide with Assistance from the Buddha, [Abstract], 45 Southwestern Law Review 861-895 (2016).
• Stacy A. Scaldo, Seditious Acts of Faith: God, Government, Conscience, and Boiling Frogs, 29 Regent University Law Review 87-121 (2016-2017).
• Chief Judge Glen A. Huff, Repairing Our Foundation Through Christian Scholarship, 29 Regent University Law Review 123-132 (2016-2017).
• Eric G. Osborne & Michael D. Bush, Rethinking Deference: How the History of Church Property Disputes Calls Into Question Long-Standing First Amendment Doctrine, 69 SMU Law Review 811-842 (2016).
• Allan W. Vestal, Fixing Witness Oaths: Shall We Retire the Rewarder of Truth and Avenger of Falsehood?, [Abstract], 27 University of Florida Journal of Law & Public Policy 443-504 (2016).

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.