Trump In Israel Calls For End To Sectarian Conflict In Middle East

During his trip to the Middle East, yesterday President Trump delivered an address (full text) at the Israel Museum in which he framed a call for a political settlement in religious terms.  The President said in part:

Today, gathered with friends, I call upon all people -- Jews, Christians, Muslims, and every faith, every tribe, every creed -- to draw inspiration from this ancient city, to set aside our sectarian differences, to overcome oppression and hatred, and to give all children the freedom and hope and dignity written into our souls. 

Earlier this week, I spoke at a very historic summit in Saudi Arabia.  I was hosted by King Salman -- a very wise man.  There, I urged our friends in the Muslim world to join us in creating stability, safety and security.  And I was deeply encouraged by the desire of many leaders to join us in cooperation toward these shared and vital goals.  

Conflict cannot continue forever.  The only question is when nations will decide that they have had enough -- enough bloodshed, enough killing.  That historic summit represents a new opportunity for people throughout the Middle East to overcome sectarian and religious divisions, to extinguish the fires of extremism, and to find common ground and shared responsibility in making the future of this region so much better than it is right now.

Priest Sex Abuse Suit Filed Against Guam Archdiocese

On Monday, a 49-year old man filed suit in a Guam federal district court against the Catholic Archdiocese of Agana seeking $5 million in damages for sexual abuse he suffered in a Guam church in 1982 when he was an altar boy.  The offending priest, Fr. John Niland, died in 2009.  The complaint (full text) in Charfauros v. Roman Catholic Archbishop of Agana, (D GU, filed 5/22/2017), alleges in part:

12. ... [D]isguising the scheme to have sexual access to young boys was the ritual of requiring altar boys to spend the night at the church rectory, ostensibly to facilitate preparation for the following morning church services.... These seemingly routine practices ... served the predatory priests with a steady supply of victims under the auspices and pretense of formal church protocol, which allowed the Church to continually operate a veritable harem of young boys who were readily available to pedophiles who utilized the stature of the church into deceiving the community to regard them as high-level officials.

13. The systematic and ongoing pattern of sexual abuse of young children was characteristic of an internal society within ... [the] Archdiocese ... whose norms were based on pedophilic conduct disguised by the rituals and pageantry of liturgical services ... which caused Catholic parishioners.to place the highest level of confidence and trust in the church and its clergy. This internal society of sexual corruption sustained itself through a conspiratorial arrangement between priests and higher officials in the Agana Archdiocese whereby they all understood and agreed to remain quiet about each others sexual abuse misconduct....

Pacific News Center reports on the lawsuit. As reported by Crux, last year Pope Francis in effect replaced Agana Archbishop Anthony Apuron after allegations that the Archbishop sexually abused altar boys in the 1960's and 1970's.

Church Awarded $1.35M For Loss Stemming From Overbroad Zoning Restriction

In Riverside Church v. City of  St.Michael, (D MN, May 22, 2017), a Minnesota federal district court awarded damages of $1,354,595 to a church which was prevented by city zoning ordinances from acquiring a vacant movie theater building and use it for worship services.  The court concluded that the church's free speech rights were infringed because the zoning ordinance, while addressing significant government interests relating to traffic control, was not narrowly tailored.  Ultimately the city amended its zoning ordinance to allow purchase of the theater building, but by then its purchase price had increased by $1.29 million, a price which the church could not afford to pay.  The court refused to award the church damages against the city for defamation. (See prior related posting.)

Texas Legislature Passes Conscience Protections For Adoption, Foster Care, Counseling Services

The Texas legislature yesterday gave final passage to HB 3859 (full text), a bill that prohibits any governmental agency from discriminating or taking adverse action against a child welfare service provider that refuses to provide adoption, foster care, counseling or other services that conflict with the agency's religious beliefs.  The bill, which now goes to the governor for signature, also protects agencies that place children with providers who will give the children a religious education. Where an agency refuses to serve a client, it must refer the client to, or to a listing of, other agencies that can serve them.  AP, reporting on the bill, says:

The private foster care and adoption organizations, which are paid by the state to place children with families, make up about 25 percent of the agencies working in Texas. Those groups say they face a threat of lawsuits for exercising their religious beliefs if they don’t get specific state legal protection.  Many Texas adoption agencies admit they don’t work with adoptive parents who are single, gay or non-Christian, and the bill could keep them from being sued.

[Thanks to Scott Mange for the lead.]

Suit Challenges Ordinance Barring Discrimination On Basis of Reproductive Health Services

In February 2017, the St. Louis (MO) Board of Aldermen enacted Ordinance 70459 which added to the city's existing laws against discrimination in employment and housing a prohibition on discrimination "because of ... reproductive health decisions or pregnancy status (including childbirth or a related medical condition)".  Yesterday suit was filed in a Missouri federal district court challenging the Ordinance which the lawsuit says was represented as barring discrimination against those who have had, or are planning to have, an abortion.  The complaint (full text) in Our Lady's Inn v. City of St. Louis, (ED MO, filed 5/22/2017) contends that in fact the Ordinance is much broader, saying in part:

Ordinance 70459 forbids Plaintiffs and others from making adverse employment, housing or realty decisions based on an individual or entity being an abortion activist, advocate or provider....  Thus, the Ordinance forbids Plaintiffs from refusing to sell or rent real property to individuals and corporate organizations that promote or provide abortions....

The complaint alleges that the Ordinance violates the speech and religion clauses of the 1st Amendment,  the due process and equal protection clauses of the 14th Amendment as well as various provisions of state law.  Thomas More Society issued a press release announcing the filing of the lawsuit.

Texas Governor Signs Bill Protecting Sermons From Subpoena By Government

On Friday, Texas Governor Greg Abbott signed SB24 (full text).  The new law protects sermons delivered by religious leaders from being subpoenaed by any governmental unit in litigation or in administrative proceedings.  The legislation is a reaction to controversy over the city of Houston's attempt in 2014 to subpoena sermons of 5 members of the clergy as part of the city's defense in a lawsuit challenging its rejection of petitions seeking repeal of the city's Equal Rights Ordinance. (See prior posting.)  Houston Chronicle reports that the governor and lieutenant governor on Sunday preached sermons at a Houston area church before a second signing of the bill.

Recent Articles of Interest

From SSRN:

• Wojciech Sadurski, Illicit Legislative Intentions in the Separation of State and Religion: Comparative Constitutional Insights, (Sydney Law School Research Paper No. 17/39 (2017)).
• Elena Falletti, Religious Roots of the Duty of Marital Fidelity and the Evolution of Italian Family Law, (May 11, 2017).
• Antje von Ungern-Sternberg, Religious Profiling, Statistical Discrimination and the Fight Against Terrorism in Public International Law, (Forthcoming, Robert Uerpmann-Wittzack (ed.), Religion and International Law, Brill 2017). 
• Robert K. Vischer, How Should a Law School's Religious Affiliation Matter in a Difficult Market?, (University of Toledo Law Review, Vol. 48, No. 2, 2017).
• Andreas Follesdal, Religion and the State – the European Court of Human Rights and the ‘Lautsi' Case About Crucifixes in Italian Class Rooms, (April 23, 2017).
• Blair A. Major, TWU Law: The Boundaries and Ethos of the Legal Community, (Alberta Law Review, Vol. 55, No. 1 [Forthcoming]).
• Mathilde Cohen, The Comparative Constitutional Law of Cows and Milk — India and the United States, (Indian Journal of Constitutional Law, Forthcoming).

From SSRN (Islamic Law):

• Ifzal Mehmood & Muhammad Abdullah Fazi, The Right to Marry in Islam: Scrutinizing the Customs of Marriages in the Pashtun Belt of Pakistan, (Pakistan Annual Research Journal, Vol. 52, 2016).
• Ahmar Afaq & Prateep Sarkar, Safeguards to Prisoners of War in International Law: Revisiting From Islamic Law Perspective, (Tabish Eqbal, Ali Faran Gulrez et. al. (eds.) Contemporary Legal Issues: Prospects and Challenges, 8 (2016)).
• Mohammed Alzahrani & William L. Megginson, Finance as Worship: A Survey of Islamic Finance Research, (CEIF Discussion Paper (4/2017)).

From SmartCILP:

• Kim Treiger Bar-Am, Copyright and Positive Freedom: Kantian and Jewish Thought on Authorial Rights and Duties, [Abstract], 63 Journal of the Copyright Society of the U.S.A. 551-571 (2016).

Suit By Cannabis Church To Enjoin Prosecution Is Dismissed

In Armstrong v. Kilmartin, (D RI, May 17, 2017), a Rhode Island federal district court dismissed a suit to enjoin a state court criminal prosecution against clergy of the "Healing Church" which uses cannabis in its rituals. Plaintiffs say they are trying to protect a religious cannabis garden from law enforcement officials.  The suit claimed that the state and state officials engaged in religious discrimination and infringed free exercise rights of church leaders. The court dismissed this part of the lawsuit under the Younger abstention doctrine.  The court also refused to exercise ancillary jurisdiction to decide a separate claim against a religious leader over the ownership of a religious painting.

Full Transcript of President Trump's Speech To Leaders of Muslim Nations

President Donald Trump today delivered a highly-anticipated speech in Riyadh, Saudi Arabia to leaders of Mulim nations. Here is the full transcript of the speech in which he said in part:

This is not a battle between different faiths, different sects, or different civilizations. This is a battle between barbaric criminals who seek to obliterate human life, and decent people of all religions who seek to protect it. This is a battle between Good and Evil.

When we see the scenes of destruction in the wake of terror, we see no signs that those murdered were Jewish or Christian, Shia or Sunni. When we look upon the streams of innocent blood soaked into the ancient ground, we cannot see the faith or sect or tribe of the victims – we see only that they were Children of God whose deaths are an insult to all that is holy.

But we can only overcome this evil if the forces of good are united and strong – and if everyone in this room does their fair share and fulfills their part of the burden. Terrorism has spread across the world. But the path to peace begins right here, on this ancient soil, in this sacred land. America is prepared to stand with you – in pursuit of shared interests and common security.

But the nations of the Middle East cannot wait for American power to crush this enemy for them. The nations of the Middle East will have to decide what kind of future they want for themselves, for their countries, and for their children.

It is a choice between two futures – and it is a choice America CANNOT make for you. A better future is only possible if your nations drive out the terrorists and extremists. Drive. Them. Out.

DRIVE THEM OUT of your places of worship. DRIVE THEM OUT of your communities. DRIVE THEM OUT of your holy land, and DRIVE THEM OUT OF THIS EARTH.

Here is the Washington Post's coverage of the speech.

Recent Prisoner Free Exercise Cases

In Ashley-Drake v. Russell, 2017 U.S. Dist. LEXIS 73984 (D NJ, May 16, 2017), a New Jersey federal district court dismissed an inmate's complaint that he was prohibited from attending group religious services while in disciplinary detention.

In Brooks v. Corrections Corporation of America, 2017 U.S. Dist. LEXIS 74369 (D AZ, May 15, 2017), an Arizona federal district court dismissed an inmate's complaint that he was not permitted to participate in the Ramadan fast when staff should have known he wished to participate.

In Al-Bukhari v. Department of Correction, 2017 U.S. Dist. LEXIS 74939 (D CT, May 17, 2017), a Connecticut federal district court allowed an inmate to move ahead with his complaint that his rights under the 1st Amendment and RLUIPA were infringed when he was denied his Qur'an and other religious books.

In Sears v. Thomas, 2017 U.S. Dist. LEXIS 75375 (SD FL, May 15, 2017), a Florida federal district court, rejecting a magistrate's recommendation (2017 U.S. Dist. LEXIS 56953, April 12, 2017), allowed an inmate to move ahead with his claim that a chain and crucifix he possessed were improperly seized because he had prior authorization for them.

In Little v. Guice, 2017 U.S. Dist. LEXIS 76593 (WD NC, May 19, 2017), a North Carolina federal district court dismissed, for failure to exhaust administrative remedies, an inmate's claim that he was disciplined for being a gang member because of his identification as "Moorish American."

Oklahoma Supreme Court Rejects Challenge To Driver's License Photo

In Beach v. Oklahoma Department of Public Safety, (OK Sup. Ct., May 16, 2017), the Oklahoma Supreme Court held that under the Oklahoma Religious Freedom Act, plaintiff must make a prima facie showing of a substantial burden on his or her free exercise of religion before the government needs to demonstrate a compelling government interest and least restrictive means.  The court concluded that plaintiff here failed to make a prima facie showing supporting her allegation that her sincere religious beliefs prohibit her, in obtaining a driver's license, from allowing a biometric photo to be taken and placed into a database that is accessible by other countries or international organizations.  The court also concluded that plaintiff's complaint is moot because plaintiff had already submitted biometric photos and fingerprints in the past. Two justices concurred only in the result and one dissented in part, saying that the case is moot.

Civil Rights Suit By Student Alarm-Clock Maker Dismissed

In Mohamed v. Irving Independent School District, (ND TX, May 18, 2017), a Texas federal district court dismissed the civil rights claims brought on behalf of an African-American Muslim high school student who was arrested and suspended from school for 3 days when a home-made clock he brought to school was mistaken by his teachers for a bomb. (See prior posting.) The incident received national attention. Plaintiff (the student's father) alleged violations of the Equal Protection clause, the 4th and 5th Amendments, and Title VI of the 1964 Civil Rights Act. WDBO News reports on the decision.

New Study Analyzes Impact of Tax Reform Proposals On Giving To Religious Organizations

The Indiana University Lily Family School of Philanthropy yesterday released a report titled Tax Policy and Charitable Giving Results (full text).  The report attempts to estimate the impact on charitable giving of the proposed 2014 Tax Reform Act.  That bill is similar to the current tax reform proposals by the White House and House of Representatives. The report examines various combinations of 3 proposals-- increase in the standard deduction, decrease in the top marginal tax rate, and universal charitable deduction.  It analyzes the impact of combinations of these on giving to religious congregations and giving to other charities. Religion News Service reports on the data.

Italy's Top Court Upholds Kirpan Ban

Last Monday, Italy's Court of Cassation upheld a fine that had been imposed for carrying a kirpan in public.  According to The Local:

The Italian judges on Monday rejected the appeal of a Sikh who had been fined €2,000 in 2015 for carrying an 18cm-long kirpan in Goito, a town in Lombardy. He argued that the ban was unfair as the kirpan was a religious symbol rather than a weapon, but the court upheld the original sentence.

"Attachment to values which violate the laws of the host country is intolerable, even if they are lawful in the country of origin," the court said, adding that "public safety is an asset to be protected".

$20M Awarded In Sexual Abuse Suit Against Rabbi and His Yeshiva

The New Haven Register reports that yesterday a federal district court jury in Hartford, Connecticut awarded $15 million in compensatory damages and $5 million in punitive damages to plaintiff for sexual abuse he suffered from 2001 to 2005 while a student at Yeshiva of New Haven, an Orthodox Jewish day school. The jury found both Rabbi Daniel Greer and his Yeshiva liable.  According to the lawsuit, the abuse began when plaintiff was 15 and Greer was in his 60's.

Justice Alito Speaks On Faith and Religious Freedom

As reported by KYW Newsradio, yesterday U.S. Supreme Court Justice Samuel Alito received an honorary degree from Saint Charles Borromeo Seminary in Wynnewood, Pennsylvania. Alito spoke to graduates of the Schools of Philosophy and Theology.  A blog on the school's website also published Faith, Family, and Religious Freedom: A Conversation with Justice Samuel Alito conducted in anticipation of his visit.

Bahamas Constitution Protects Muslim Military Officer From Mandatory Christian Prayer

In Commodore Royal Bahamas Defence Force v Laramore, (Privy Council, May 8, 2017), the UK Judicial Committee of the Privy Council (a court of final appeal from Bahamas courts) held it unconstitutional under the Bahamian constitution to require a Muslim member of the Royal Bahamian Defence Force to participate in Christian prayers. At issue are the "ceremonial prayers" in regular weekly colours parades.  From 1993 to 2006, non-Christians could fall out during the prayers. A 2006 Memorandum ended that accommodation. Law & Religion UK has more on the decision.

EEOC Sues Over Refusing To Accommodate Jewish Employee's Holiday Observance

The EEOC announced on Tuesday that it has filed a Title VII lawsuit against XPO Last Mile, Inc., a delivery company, for rescinding a job offer to Tzvi McCloud who refused to report for his first day of work on Rosh Hashanah.  A company vice president allegedly told McCloud that if he gave him a religious accommodation for his Jewish religious beliefs, he would have to extend accommodations to other employees as well.

1st Amendment Requires Dismissal of Some Priest Sexual Abuse Allegations

In Roy v. Norwich Roman Catholic Diocesan Corp., 2017 Conn. Super. LEXIS 774 (CT Super., April 24, 2017), plaintiff sued claiming that from 1990 to 1996 when he served as an altar boy at a Pomfret, Connecticut Catholic church he was sexually assaulted hundreds of times by a now-deceased priest, Fr. Paul Herbert.  While the trial court permitted plaintiff to move ahead on a number of his claims, it dismissed three of them on the ground that these would impermissibly entangle the court in matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law. The allegations that were dismissed were that the church failed to adequately evaluate the mental fitness of Herbert to serve as a Catholic priest, and the allegation that plaintiff suffered emotional and spiritual loss, substantially affecting his belief in his faith. The court held that plaintiff's other claims, such as the failure to adequately train and supervise Herbert, can be decided by applying neutral principles of law.

Organization Announces Campaign To Promote Graduation Prayer

Liberty Counsel this week announced its annual "Friend or Foe Graduation Prayer Campaign," saying in part:

Liberty Counsel will educate and, if necessary, litigate to ensure that prayer and religious views are not suppressed during graduation ceremonies across the Nation.

Liberty Counsel is making available red prayer wristbands which students can wear as a reminder to pray at graduation and all throughout the school year.... Students have the constitutional right to wear religious jewelry and to pray during noninstructional times while at school. Liberty Counsel also has a free legal memo on graduation prayer.

Juror Removed For Religious Statement Made In Deliberations

According to FirstCoast News, in a Jacksonville, Florida federal district courtroom earlier this month, a jury found former Congresswoman Corrine Brown  guilty on 18 counts of fraud and corruption. The jury's decision came a day after the judge removed one of the jurors  (referred to as Juror 13) from the panel. The judge took action against Juror 13 after another juror sent the judge a letter complaining about Juror 13's religious remarks. Near the beginning of deliberations, Juror 13 told the others that the Holy Spirit had told him Congresswoman Brown was not guilty on all charges. The full transcript of the judge's questioning Juror 13 before deciding to remove him from the jury makes interesting reading.

Court Dismisses California Law Challenge To Chabad's Kapparot Ceremony

In United Poultry Concerns v. Chabad of Irvine, (CD CA, May 12, 2017), a California federal district court dismissed a suit by an animal rights organization claiming that the annual Kapparot ceremony conducted by an Orthodox Jewish organization violates California's Unfair Competition Law.  The UCL provides civil remedies for “any unlawful, unfair or fraudulent business act or practice.” The complaint alleges that the ritual as implemented by Chabad of Irvine violates the state's ban on "intentional and malicious killing of animals" other than for use as food (California Penal Code Sec. 597(a), 599c).  Chabad charges $27 to each person for furnishing and disposing of the chicken used in the pre-Yom Kippur ceremony. (See prior posting.)

In dismissing the lawsuit, the court said:

The Court cannot find, and Plaintiff does not cite a single case in which the acceptance of a donation in connection with the performance of religious ritual has been treated as a “business act” under the UCL. Moreover, the Court finds that Defendant Chabad of Irvine does not participate nor compete as a business in the commercial market by performing a religious atonement ritual that involves donations. For these reasons, the Court finds that Plaintiff fails to state a claim against Chabad of Irvine for a violation of the Unfair Competition Law (B.P.C. § 17200 et seq.)

First Liberty Institute issued a press release announcing the decision.  Jewish Press reported on the decision.

State Department Implements Expanded "Mexico City Policy"

Yesterday the State Department took steps to implement an earlier Memorandum from President Trump that reinstated the "Mexico-City Policy" that bars U.S. foreign aid dollars from going to nongovernmental organizations that offer abortion counseling or  advocate the right to seek abortions in their home countries.(See prior posting).  In a Fact Sheet and a Background Briefing the State Department elaborated on its new plan called "Protecting Life in Global Health Assistance" which expands on the Mexico City Policy as applied in prior Republican administrations.  According to the briefing:

...[G]lobal health assistance includes funding for international health programs, such as those for HIV/AIDS, maternal and child health, malaria, global health security, family planning, and reproductive health. Protecting Life in Global Health Assistance applies to global health assistance to or implemented by foreign NGOs, including those to which a U.S. NGO makes a sub-award with such assistance funds.

Global health assistance to national or local governments, public international organizations, and other similar multilateral entities is not subject to this policy. Also excluded is humanitarian assistance, including State Department migration and refugee assistance activities, USAID disaster and humanitarian relief activities, and U.S. Department of Defense disaster and humanitarian relief. At any time, in consultation with the Secretary of Health and Human Services, the Secretary of State may authorize additional case-by-case exemptions to the policy....

Protecting Life in Global Health Assistance applies to approximately $8.8 billion in funds appropriated to the Department of State, the U.S. Agency for International Development, and the Department of Defense. Previously, the policy applied only to family planning assistance provided by USAID and the Department of State.

.... Departments and agencies will reprogram to other organizations any funding they would have awarded to NGOs that do not agree to the terms of Protecting Life in Global Health Assistance.

New York Times reports on the policy expansion. Liberty Counsel issued a press release with additional information on the new policy.

9th Circuit Hears Oral Arguments On Second Trump Travel Ban Executive Order

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments (video of full arguments) in State of Hawaii v. Trump, (Docket No. 17-15589).  In the case, a Hawaii federal district court issued a nationwide temporary injunction against enforcement of key portions of  President Trump's second "travel ban" Executive Order. (See prior posting.) As reported by the New York Times, at issue in the arguments are whether the Executive Order can be considered a "Muslim ban" that violates the Establishment Clause.

N.J. Governor Conditionally Vetoes Total Ban On Marriage of Minors, Citing Religious Traditions

New Jersey Governor Chris Christie on May 11 vetoed Assembly Bill 3091 which would have placed an absolute ban on issuing of marriage or civil union licenses to persons under 18 years of age. His Conditional Veto message (full text) sent the bill back with recommendations for reconsideration.  the message said in part:

New Jersey law currently permits the issuance of these licenses to 16 and 17 year-olds with parental consent and to persons below age 16 with both parental consent and judicial approval....

I am recommending that this bill be amended so that a marriage license no longer be issued for a person under the age of 16.

I also would require judicial approval for the issuance of a marriage license to persons who are age 16 and 17....

An exclusion without exceptions would violate the cultures and traditions of some communities in New Jersey based on religious traditions. Judicial oversight would permit consideration of these factors in the 16 and 17 year old timeframe.

According to Politico, "almost 3,500 marriages involving at least one partner under 18 took place in New Jersey from 1995 to 2012. Of those, 163 involved at least one spouse 15 or younger. Most were religious arranged marriages."

Egyptian Muslim Cleric Accused of "Contempt of Religion"

In Egypt last Thursday, members of the Egyptian Parliament filed a lawsuit against Muslim cleric and former deputy minster in the Endowments Ministry, Salem Abdel Galil.  According to Egypt Daily News, the suit, and another one filed by different complainants, accuse Galil of contempt of religion and threatening national unity because of statements he made on May 3 during his television show "Muslims Ask."  In explaining a verse from the Qur'an, he said that Christians and Jews follow corrupt religions and are non-believers.  In a statement on his Facebook page, Galil apologized for "hurting Christians’ feelings," but said he would never apologize for his religion. Al-Mehwar TV has canceled Galil's contract, and Minister of Endowments Mokhtar Gomaa said that Galil would not be allowed to lead Friday prayers unless he retracted his comments.

Court Rejects Challenge To State's Use of Religiously Affiliated Child Placement Agency

In In re R.M., (KS Ct. App., May 12, 2017), the Kansas Court of Appeals rejected an argument that the state violated the Establishment Clause by contracting with  Saint Francis Community Services, an Episcopalian organization, to provide childcare services on behalf of the state.  The issue was raised by a mother who was contesting the state's termination of her parental rights to her two children.  The court said in part:

Mother has shown no evidence that Saint Francis encouraged, let alone coerced, her children into participating in religious activities or conditioned their receipt of any benefits on such participation. None of the case plans or court orders contains any reference to religious acts or beliefs or requires Mother or her children to do anything of a religious nature. Mother has not shown anything of a religious nature in the homes her children have been placed in.

Recent Articles of Interest

From SSRN:

• Madalyn Doucet Vicry, That Kind of Girl: Effects of Homeschooling on the Sexual Health of Women and Girls, (Georgetown Journal of Gender and the Law, Vol. 18, No. 103, 2017).
• Wojciech Sadurski, Judicial Review and Public Reason, (Comparative Judicial Review, Rosalind Dixon, Erin F. Delaney, eds, Edward Elgar, UK, 2017, Forthcoming).
• Caroline Mala Corbin, A Free Speech Tale of Two County Clerk Refusals, (Ohio State Law Journal, Forthcoming).
• Elaine Rene Elizabeth Panter, Tanya Primiani, Tazeen Hasan & Eduardo Calderon Pontaza, Antidiscrimination Law and Shared Prosperity: An Analysis of the Legal Framework of Six Economies and Their Impact on the Equality of Opportunities of Ethnic, Religious, and Sexual Minorities, (World Bank Policy Research Working Paper No. 7992 (March 3, 2017)).
• Robin Bradley Kar, Transformational Marriage: How to End the Culture Wars Over Same-Sex Marriage, (The Contested Place of Religion in Family Life (Cambridge University Press 2017)).
• Robin Elliot & Michael Elliot, 'Striking the Right Balance: Rethinking the Contest between Freedom of Religion and Equality Rights in Trinity Western University v. The Law Society of British Columbia', (Forthcoming in the University of British Columbia Law Review, (2017) Volume 50:3).
• Clifford Rosky, Still Not Equal: A Report from the Red States, (After Marriage Equality: The Future of LGBT Rights pgs. 73-101 (2016)).

SSRN (Islamic Law)

• Hae Won Bang, Production of Islamic Knowledge in the European Diaspora: A Case Study of Digital Texts from a British Muslim Halal Certifier, (May 30, 2016).
• Mmaphuti David Tuba, Lodhi 5 Properties Investments CC v Firstrand Bank Limited [2015] 3 All SA 32 (SCA) and the Enforcement of Islamic Banking Law in South Africa ,(Potchefstroom Electronic Law Journal, Vol. 20, 2017).

From SmartCILP:

• Symposium: Law and Religion in an Increasingly Polarized America. Articles by Kathleen A. Brady, Marc O. DeGirolami, Kent Greenawalt, B. Jesse Hill, Andrew Koppelman, Ronald J. Krotoszynski, Jr., Ira C. Lupu, Robert W. Tuttle, James M. Oleske, Jr. and Robin Fretwell Wilson. 20 Lewis & Clark Law Review 1093-1458 (2017).
• Allan W. Vestal, Regarding Oaths of Office, 37 Pace Law Review 292-325 (2016).

New Tennessee Law Requires Religious Holy Day Accommodation For School Athletics

On May 2 (bill history), Tennessee Governor Bill Haslam signed Senate Bill 1012, as amended, which gives students' religious observances priority over athletic schedules.  The new law provides:

A local education agency, local school board, school, educator, or employee or the employee's representative may not require a student to attend a school athletic event, or event related to participation on a school athletic team, if the event is on an official school holiday, observed day of worship, or religious holiday. The parent or legal guardian of a student participating in a school athletic event may provide written notice that the student will not be in attendance to the coach or administrator of the athletic event at least three (3) full school days prior to the event. Prior written notice to the coach or administrator of the school athletic event may not be required if the absence is due to an unforeseen emergency.

In comments published by Forbes after the bill's enactment, the sponsor of the parallel measure in the state House of Representatives appears to understate the mandatory excusal requirement of the law, saying:

What we're trying to do is bring awareness and realization to athletic programs that the school and administration have leeway when it comes to answering the needs of families. It provides a platform for discussion to take place.

Recent Prisoner Free Exercise Cases

In Jones v. Johnson, 2017 U.S. Dist. LEXIS 69634 (D CT, May 8, 2017), a Connecticut federal district court dismissed a Muslim inmate's complaint that he was denied congregate religious services while confined in the Administrative Segregation Program.

In Greenhill v. Clarke, 2017 U.S. Dist. LEXIS 70937 (WD VA, May 10, 2017), a Virginia federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 71291, March 20, 2017) and denied a preliminary injunction to a Muslim inmate who complained that he was precluded from observing weekly Jum'ah services because inmates in segregation can watch a tape of such services only if they purchase their own television set.

In Kitchen v. Leach, 2017 U.S. Dist. LEXIS 71144 (WD MI, May 10, 2017), a Michigan federal district court dismissed a Muslim inmate's claim that a vegan diet imposes a substantial burden on his religious beliefs and his complaint that his meal trays were marked kosher.  However it allowed him to move ahead with his claim that the vegan menu causes him gastrointestinal distress that interferes with his religious practices.

In Bishop v. Mohave Mental Health Inc., 2017 U.S. Dist. LEXIS 71368 (D AZ, May 10, 2017), an Arizona federal magistrate judge dismissed with leave to amend plaintiff complained that he was not allowed to attend religious services on March 24, 2013, without prior permission from his probation officer.

In Griffin v. Lopez, 2017 U.S. Dist. LEXIS 72315 (ED CA, May 11, 2017), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's complaint that he was denied religious meals on one day during Ramadan, and that defendant has a custom of denying Ramadan meals.

Fragmented Decision Upholds Business' Refusal to Print LGBT Pride T-Shirts

In a 2-1 decision yesterday, the Kentucky Court of Appeals concluded that a business which prints customized T-shirts was not in violation of a county's public accommodation law when it refused to print T-shirts for a local LGBT Pride Festival. At issue in Lexington Fayette Urban County Human Rights Commission v. Hands On Originals, Inc., (KY Ct. App., May 12, 2017), was the policy of a business which prints customized t-shirts, mugs, pens, and other accessories "to refuse any order that would endorse positions that conflict with the convictions of the ownership."

Chief Judge Kramer, writing the court's opinion, held that the business, Hands On Originals (HOO), never refused goods or services to a customer on the basis the customer's sexual orientation or gender identity because the order was placed by an organization which has no sexual orientation of gender identity. Neither did HOO deny goods or services because the customer was engaging in conduct engaged in exclusively or predominantly by a protected class of people. Judge Kramer explained, saying in part:

The acts of homosexual intercourse and same-sex marriage are conduct engaged in exclusively or predominantly by persons who are homosexual. But anyone—regardless of religion, sexual orientation, race, gender, age, or corporate status—may espouse the belief that people of varying sexual orientations have as much claim to unqualified social acceptance as heterosexuals. Indeed, the posture of the case before us underscores that very point: this case was initiated and promoted by Aaron Baker, a non-transgendered man in a married, heterosexual relationship who nevertheless functioned at all relevant times as the President of the GLSO.

Judge Lambert concurred only in the result and filed a separate opinion contending that HOO is protected in its conduct because of the Kentucky Religious Freedom Restoration Statute.  She said in part:

HOO refused to print the shirts because the HOO owners believe the lifestyle choices promoted by GSLO conflict with their Christian values.

Judge Taylor dissented, saying in part:

The majority takes the position that the conduct of HOO in censoring the publication of the desired speech sought by GLSO does not violate the Fairness Ordinance. Effectively, that would mean that the ordinance protects gays or lesbians only to the extent they do not publicly display their same gender sexual orientation. This result would be totally contrary to legislative intent and undermine the legislative policy of LFUCG since the ordinance logically must protect against discriminatory conduct that is inextricably tied to sexual orientation or gender identity. Otherwise, the ordinance would have limited or no force or effect.

 Lexington Herald Leader reports on the decision.

Suit Over War Memorial Depicting Cross Is Settled

The American Humanist Association announced on Thursday that a settlement has been reached in  American Humanist Association v. Borough of Roselle Park.  In the case, plaintiffs brought an Establishment Clause challenge to a war memorial on public property depicting a soldier kneeling over a grave marked by a Christian cross. (See prior posting.) The city took down the memorial after the lawsuit was filed.  Under the settlement agreement, the city agreed it will not erect the same display or a similar one in the future.

Pence At Conference On Persecution of Christians Says ISIS Is Guilty of Genocide

Vice President Mike Pence delivered a nearly 25-minute speech yesterday in Washington, D.C. at the first-ever World Congress of Persecuted Christians. (Full text of remarks). (Press release from Liberty Counsel.) The event is sponsored by the Billy Graham Evangelistic Association.  At one point in his prepared remarks, he said:

I believe ISIS is guilty of nothing short of genocide against people of the Christian faith, and it is time the world called it by name.

It is not clear whether he was announcing a formal labeling of ISIS activities as "genocide" which would then trigger obligations under the 1948 Convention on the Prevention and Punishment of Genocide.

Here are additional excerpts from the Vice President's speech:

I’m here on behalf of the President as a tangible sign of his commitment to defending Christians and, frankly, all who suffer for their beliefs across the wider world.  I stand here today as a testament to President Trump’s tangible commitment to reaffirm America’s role as a beacon of hope and light and liberty to inspire the world....

The reality is, across the wider world, the Christian faith is under siege.  Throughout the world, no people of faith today face greater hostility or hatred than the followers of Christ.  In more than 100 countries spread to every corner of the globe –- from Iran to Eritrea, Nigeria to North Korea –- over 215 million Christians confront intimidation, imprisonment, forced conversion, abuse, assault, or worse, for holding to the truths of the Gospel.  And nowhere is this onslaught against our faith more evident than in the very ancient land where Christianity was born....

In Iraq, at the hands of extremists, we’ve actually seen monasteries demolished, priests and monks beheaded, and the two-millennia-old Christian tradition in Mosul virtually extinguished overnight.  In Syria, we see ancient communities burned to the ground.  We see believers tortured for confessing Christ, and women and children sold into the most terrible form of human slavery.

Know today with assurance that President Trump sees these crimes for what they are: vile acts of persecution animated by hatred -- hatred for the Gospel of Christ.  And so too does the President know those who perpetrate these crimes.  They are them the embodiment of evil in our time.  He calls them by name -- radical Islamic terrorists....

But to be clear, adherents of other religions across the world have not been spared.  And we will speak for them and pray for them as well.  For as history attests, persecution of one faith is ultimately the persecution of all faiths.

Arson Awareness Week Focuses On Arson Prevention At Houses of Worship

The U.S. Fire Administration has designated May 7-13, 2017 as National Arson Awareness Week, and has made the theme for this year "Arson Prevention at Houses of Worship."

4th Circuit Hears Oral Arguments On North Carolina's Magistrate Recusal Law

The U.S. 4th Circuit Court of Appeals on Wednesday heard oral argument (audio of full arguments) in Ansley v. Warren (Docket No. 16-2082). In the case, a North Carolina federal district court dismissed for lack of standing an Establishment Clause challenge to North Carolina's S.B. 2 that allows magistrates who have religious objections to performing same-sex marriages to recuse themselves from performing any marriages. (See prior posting.)  AP reports on the oral arguments.

Court Rejects Commerce Clause Challenge To Dylann Roof's Church Shooting Conviction

A South Carolina federal district court has rejected challenges by Dylann Roof to his conviction in the widely publicized 2015 killing of 9 individuals in a Bible study class at Mother Emanuel AME Church in Charleston, South Carolina.  In United States v. Roof, (D SC, May 10, 2017), the court upheld against a commerce clause challenge Roof's conviction for violating 18 USC §247 which prohibits obstructing by force a person's free exercise of religion where the offense is in or affects interstate or foreign commerce. The court said in part:

Defendant argues that because his offense was noneconomic, because he did not travel in interstate commerce to commit it, and because he used items purchased in South Carolina, the Government failed to establish that the offense-- that is, the intentional, forcible obstruction of the free exercise of religion-- was in or affected interstate commerce....

Defendant used the internet to conduct research and identify Mother Emanuel as his target, a telephone to contact the church directly, and GPS navigation satellites to navigate interstate highways on his multiple trips to and from the vicinity of the church. He used a Russia-based service to host the online manifesto he posted shortly before the attack at Mother Emanuel, which explained his motives. In preparation for the attack, Defendant purchased hollow-point bullets, magazines, and a firearm that had all travelled in interstate commerce. Defendant entered Mother Emanuel carrying the firearm and loaded magazines in a tactical pouch that had travelled in interstate commerce. Inside the church, Defendant used the items he procured to kill nine parishioners....

Defendant argues that the proper test is whether the offense was in interstate commerce, not whether the items used to commit the offense were in interstate commerce.... The Court finds that argument unpersuasive.

Indonesian Governor Sentenced To 2 Years In Jail for Blasphemy

In Indonesia on Tuesday, Jakarta's outgoing governor, a Christian, was convicted of blasphemy and sentenced to two years in jail.  Comments about a verse in the Qur'an made during the campaign by the governor, Basuki Tjahaja Purnama (also known as "Ahok"), played a major role in his defeat by a Muslim candidate.  According to The Atlantic:

While on a work trip late last year, Purnama claimed that Jakarta’s Islamic leaders were misrepresenting a principle in the Koran for political gains. The verse in question, which comes from the fifth chapter of the Koran, suggests that Muslims should not have non-Muslim leaders. Purnama implied that his opponents were using the verse to discriminate against Christian candidates like himself. He later apologized for the comments, but did not admit to any wrongdoing.

Suit Challenges Zoning Laws As Discriminatory Against Orthodox Jews

Agudath Israel of America filed suit this week in a New Jersey federal district court contending that zoning ordinances enacted this year by the Township of Jackson, New Jersey were motivated by discriminatory animus against the Orthodox Jewish community and were designed "to prevent that community from being able to have the necessary educational institutions to teach their youth, and to discourage that community from residing in Jackson Township."  The complaint (full text) in Agudath Israel of America v. Township of Jackson, New Jersey, (D NJ, filed 5/8/2017), alleges in part:

The Ordinances are the latest action taken by the Township in a long campaign to erect a wall on its border with Lakewood Township, where many Orthodox Jews live, in order to discourage them from moving into Jackson. Its Mayor has told residents “Don’t sell” to the Orthodox Jewish community, its Township Council President said that a suggestion that Orthodox Jews move into communities such as Jackson was “reprehensible”....

The Lakewood Scoop reports on the lawsuit.

Creationist Scientist Sues National Park Service

A suit was filed this week in  an Arizona federal district court by Dr. Andrew Snelling, who is employed by the Christian apologetics organization Answers in Genesis, challenging his treatment by the National Park Service.  The complaint (full text) in Snelling v. U.S. Department of Interior, (D AZ, filed 5/9/2017), alleges that National Park Service officials denied, and then limited, plaintiff's permit to undertake research at four sites in the Grand Canyon "because of Dr. Snelling’s Christian faith and scientific viewpoints informed by his Christian faith." The complaint alleges violations of the 1st and 5th Amendments as well as RFRA.  ADF issued a press release announcing the filing of the lawsuit.

Missouri Legislature Restores Employment Discrimination Exemption For Religious Hospitals and Colleges

The Missouri legislature on Monday gave final passage to SB 43 (full text) which, among other things, restores the exemption for religiously affiliated hospitals and colleges from the state's employment discrimination law.  The existing version of the state's employment discrimination law excludes from the definition of "employer" any corporation or association "owned and operated by religious or sectarian groups." In a 2013 decision the Missouri Supreme Court in Farrow v. St. Francis Medical Center held that a Catholic hospital did not qualify for the exclusion because, while it may have been operated by a religious organization, it was not "owned" by a religious group. The statute just passed by the legislature (Sec. 213.010(8)) now provides an exclusion for "corporations and associations owned or operated by religious or sectarian organizations." The Pathway reporting on the bill says that Gov. Eric Greitens is expected to sign the bill in the near future.

Suit Claims Bishop Tried To Coerce Withdrawal of Clergy Abuse Charge

A suit was filed this week in a Minnesota state trial court against the Catholic Diocese of Crookston and its Bishop Michael Hoeppner.  The complaint (full text) in Vasek v. Diocese of Crookston, (MN Dist. Ct., filed 5/8/2017) alleges that plaintiff, who was studying to be a deacon, was told by Bishop Hoeppner that he must withdraw his previous charges of decades-old sexual abuse that he had previously made against an Ohio priest.  Hoeppner allegedly told plaintiff that if he did not, "the Bishop would have difficulty ordaining Plaintiff as a deacon for the Diocese of Crookston and that Plaintiff s son's priesthood in the Diocese of Crookston would be negatively impacted." Minneapolis Star Tribune reports on the lawsuit.

West Virginia Supreme Court: Sexual Orientation Not Covered By Civil Rights Law

In State of West Virginia v. Butler, (Sup. Ct. WV, May 9, 2017), the West Virginia Supreme Court of Appeals in a 3-2 decision held that "sex" in the state's civil rights statute does not include sexual orientation.  At issue is defendant's indictment for assaulting a same-sex couple.  The Court said in part:

In 1987, our Legislature exercised its right to define crimes when it enacted West Virginia Code § 61-6-21(b) through which it became a felony to violate a person’s civil rights by threat, intimidation and/or injury to another person or another person’s property because of specifically enumerated characteristics, including the victim’s “sex.” W.Va. Code § 61-6-21(b). In determining what is meant by the word “sex,” we are mindful that “‘[w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.’ 

Justice Workman joined by Justice Davis filed a dissenting opinion.

California Supreme Court Interprets "Day of Rest" Statute

In Mendoza v. Nordstrom, Inc., (CA Sup. Ct., May 8, 2017), the California Supreme Court issued an opinion answering questions certified to it by the U.S. 9th Circuit Court of Appeals on the meaning of California's "Day of Rest" statute.  At issue is the meaning of California Labor Code §551 which provides: "Every person employed in any occupation of labor is entitled to one day's rest therefrom in seven."  Looking at the history of the provision, the Court said:

Given that religious days of rest, though they vary between denominations, typically recur on the same day each week, the statute could be understood as extending a guarantee of a day of rest every week, on a day of the individual‘s choosing, or, equally, a day of rest at least every seventh day.

The Court concluded that the statute guarantees a day of rest sometime in each work week, so that an employee might work for more than 7 consecutive days. It also concluded that "An employer is not ... forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest."

Bermuda Court Legalizes Same-Sex Marriage

In a 49-page opinion handed down last week, a Bermuda trial court judge legalized same-sex marriage in the island nation (which is classified as a British Overseas Territory).  In Godwin v. Registrar General, (Bermuda Sup. Ct., May 5, 2017), the court held that the Registrar General violated the Human Rights Act of 1981 (HRA) when it denied a  marriage license to a same-sex couple. The court concluded that the provision of the HRA that prohibits discrimination on the basis of sexual orientation in the provision of services applies to the Registrar General's action.  The Royal Gazette reports on reaction to the ruling.

Good News Club Claims Unequal Treatment By School District

A suit was filed in an Indiana federal district court yesterday against the Pike County, Indiana School District by the Good News Clubs alleging discriminatory treatment by the school district. The complaint (full text) in Child Evangelism Fellowship of Indiana, Inc. v. Indiana Metropolitan School District of Pike County, (SD IN, filed 5/8/2017), alleges that the school district charged Good News Clubs a fee for after-school use of elementary school facilities while waiving the fee for other community organizations. It also contends that Good News Clubs were denied the right to distribute literature through the schools while other community groups with whom the school partnered were permitted to do so. The suit asserts violations of the 1st and 14th Amendment. Liberty counsel issued a press release announcing the filing of the lawsuit.

4th Circuit En Banc Hears Oral Arguments On Trump's Second Travel Ban

Today the U.S. 4th Circuit Court of appeals sitting en banc  (13 judges) heard oral arguments (audio of oral arguments from C-Span) in International Refugee Assistance Project v. Trump.  In the case, a Maryland federal district court granted a nationwide preliminary injunction barring enforcement of Section 2(c) of President Trump's second travel ban executive order. That section of the Executive Order imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen.  The district court concluded that there is a likelihood that the travel ban violates the Establishment Clause. (See prior posting.) Washington Post reports on the oral arguments, saying in part:

... [J]udge after judge during an extraordinary two-hour hearing asked Acting Solicitor General Jeffrey B. Wall about statements during the presidential campaign and afterward in which Trump talked about a Muslim ban.

Wall said the order for a 90-day ban on foreign travelers from certain countries was simply to protect the country by increasing the vetting of those who are potentially dangerous. That is not only within the president’s authority, Wall said, it is his responsibility.

But Judge Barbara Milano Keenan said that could mean a candidate for president could call for a Muslim ban every day for a year, enact a cleverly worded plan that accomplished that on his first day in office, and have courts ignore whether that was his real purpose.

Under intense questioning, Wall acknowledged it could violate the Constitution to single out a religion for adverse treatment, but said Trump’s revised executive order was neutral.

Recent Articles of Interest

From SSRN:

• Russell G. Pearce, Adam Winer & Emily Jenab, A Challenge to Bleached out Professional Identity: How Jewish Was Justice Louis D. Brandeis?, (Touro Law Review, Vol. 33, No. 335, 2017).
• Linda C. McClain, The Intersection of Civil and Religious Family Law in the U.S. Constitutional Order: A Mild Legal Pluralism, (Religion, Secularism & Constitutional Democracy (Jean L Cohen and Cécile Laborde, Columbia University Press 2016), pp. 379-399).
• Michael V. Hernandez, In Defense of Pluralism: Religiously Affiliated Law Schools, Olympianism, and Christophobia, (University of Toledo Law Review, Vol. 48, 2017).
• Linda C. McClain, Reading Deboer and Obergefell through The ‘Moral Readings versus Originalisms’ Debate: From Constitutional ‘Empty Cupboards’ to Evolving Understandings, (11 Problema: Anuario de Filosofía y Teoria del Derecho 85-130 (Dec. 2017) ).

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

• George Baylon Radics & Yee Suan Poon, Amos Yee, Free Speech, and Maintaining Religious Harmony in Singapore, (University of Pennsylvania Asian Law Review, Vol. 12, No. 2, 2016).
• Michael M. Karayanni, Multiculturalism As Covering: On the Accommodation of Minority Religions in Israel, (American Journal of Comparative Law, Forthcoming).
• Andrea Quinn, After Şahin v. Turkey and S.A.S. v. France: Scarves, Strategy and State Actors, (May 4, 2017).
• Ben Saul, Minorities and Counter-Terrorism Law, (European Yearbook of Minority Issues, Forthcoming).
• Karin Carmit Carmit Yefet, Synagogue and State in the Israeli Military: A Story of 'Inappropriate Integration', (10 Journal of Law & Ethics of Human Rights 223 (2016)).
• Benjamin Geva, The Medieval Hawale: The Legal Nature of the Suftaj and Other Islamic Payment Instruments, (Osgoode Legal Studies Research Paper No. 42/2017).

From SmartCILP:

• Marvin Lim, Epistemology in Uncertainty: Distinguishing Science and Faith in the Quantum Age, [Abstract], 53 California Western Law Review 1-47 (2016).

Courthouse Renovation Discovery Creates Church-State Concern

A church-state controversy may be in the making in Nelson County, Virginia where $5 million renovation of a century-old historic courthouse has uncovered a religious inscription in the courtroom.  Today's Lynchburg News & Advance reports that as four coats of paint were stripped from the wood structure resting on columns supporting a courtroom balcony, the inscription "Virtus — Keep God’s Commandments — Veritas" was revealed.  Historians say the inscription may date from the 1830's when newly-formed Protestant denominations used the courthouse for worship services.

Recent Prisoner Free Exercise Cases

In Myrick v. Torres, 2017 Pa. Commw. Unpub. LEXIS 310 (Commonwealth Ct. PA, May 1, 2017), a Pennsylvania appeals court affirmed the dismissal with leave to amend by the trial court of an inmate's complaint that the number of choir practices for Seventh Day Adventist were reduced and that the Chaplain Program Director favored Latin music and services and replaced Christian ushers with Latin ushers.

In Chichakli v. Cheatham, 2017 U.S. Dist. LEXIS 66746 (SD FL, May 1, 2017), a Florida federal district court allowed an inmate to move ahead with his 1st Amendment (but not his RLUIPA) claim growing out of alleged denial of access to his prayer book, Bible, and Tefillin.

In Mitchell v. Robicheaux, 2017 U.S. Dist. LEXIS 66826 (ED CA, May 1, 2017), a California federal magistrate judge recommended revoking plaintiff's in forma pauperis status under the "3 strikes" provision in a suit alleging failure to provide plaintiff meals consistent with the religion of Islam.

In Vaughn v. Wegman, 2017 U.S. Dist. LEXIS 66839 (ED CA, May 1, 2017), a California federal magistrate judge recommended that an inmate be allowed to move ahead with his complaint that he was denied kosher meals and access to Jewish religious services.

In Sessing v. Sherman, 2017 U.S. Dist. LEXIS 67626 (ED CA, May 3, 2017), a California federal district court terminated an inmate's suit which challenged a now-discontinued policy that prohibited the construction of new worship grounds at his Substance Abuse Treatment Facility, preventing him from exercising his outdoor, fire-centric Odinist religion.

In Gordon v. Sniff, 2017 U.S. Dist. LEXIS 67753 (CD CA, May 2, 2017), a California federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 67757, April 28, 2017), and allowed an inmate to move ahead with most of his claims alleging that Muslim inmates were denied all religious services, while services were provided for all other religious beliefs.

In Brinkman v. Ryan, 2017 U.S. Dist. LEXIS 68293 (D AZ, May 3, 2017), an Arizona federal district court dismissed a Wiccan inmate's complaint that his religious practices were not accommodated.

In Wolcott v. Board of Rabbis of Northern & Southern California, 2017 U.S. Dist. LEXIS 68435 (ED CA, May 3, 2017), a California federal magistrate judge recommended dismissing a complaint by an inmate seeking to convert to Judaism that he is unable to obtain Tefillin and Tzittzit.

International Religious Freedom Provisions In Just-Signed Budget Act

H.R. 244, the Consolidated Appropriations Act, 2017 (full text), which President Trump signed into law yesterday contains a number of provisions relating to religious liberty. Among the provisions are the following that focus on international religious freedom initiatives:

SEC. 7033.

(a) International Religious Freedom Office And Special Envoy To Promote Religious Freedom.—

(1) Funds appropriated by this Act under the heading “Diplomatic and Consular Programs” shall be made available for the Office of International Religious Freedom, Bureau of Democracy, Human Rights, and Labor, Department of State, the Office of the Ambassador-at-Large for International Religious Freedom, and the Special Envoy to Promote Religious Freedom of Religious Minorities in the Near East and South Central Asia.... 

(2) Funds appropriated under the heading “Diplomatic and Consular Programs” and designated for the Office of International Religious Freedom shall be made available for the development and implementation of an international religious freedom curriculum.... 

(b) Assistance.—

(1) INTERNATIONAL RELIGIOUS FREEDOM PROGRAMS.—Of the funds appropriated by this Act under the heading “Democracy Fund” and available for the Human Rights and Democracy Fund (HRDF), not less than $10,000,000 shall be made available for international religious freedom programs: Provided, That the Ambassador-at-Large for International Religious Freedom shall consult with the Committees on Appropriations on the uses of such funds.

(2) PROTECTION AND INVESTIGATION PROGRAMS.—Of the funds appropriated by this Act under the heading “Economic Support Fund”, not less than $10,000,000 shall be made available for programs to protect vulnerable and persecuted religious minorities: Provided, That a portion of such funds shall be made available for programs to investigate the persecution of such minorities by governments and non-state actors and for the public dissemination of information collected on such persecution, including on the Department of State Web site.

(3) HUMANITARIAN PROGRAMS.—Funds appropriated by this Act under the headings “International Disaster Assistance” and “Migration and Refugee Assistance” shall be made available for humanitarian assistance for vulnerable and persecuted religious minorities, including victims of genocide designated by the Secretary of State and other groups that have suffered crimes against humanity and ethnic cleansing.... 

(4) TRANSITIONAL JUSTICE, RECONCILIATION, AND REINTEGRATION PROGRAMS IN THE MIDDLE EAST AND NORTH AFRICA REGIONS.—

(A) Not later than 90 days after enactment of this Act and after consultation with relevant central governments in the Middle East and North Africa regions, the Secretary of State shall submit to the Committees on Appropriations a plan for transitional justice, reconciliation, and reintegration programs for vulnerable and persecuted religious minorities in such regions.... 

(c) International Broadcasting.—Funds appropriated by this Act under the heading “Broadcasting Board of Governors, International Broadcasting Operations” shall be made available for programs related to international religious freedom, including reporting on the condition of vulnerable and persecuted religious groups.

(d) Atrocities Prevention.—Funds appropriated by this Act under the headings “Economic Support Fund” and “International Narcotics Control and Law Enforcement” shall be made available for programs to prevent atrocities and to implement the recommendations of the Atrocities Prevention Board....

(e) Designation Of Non-State Actors.—The President shall, concurrent with the annual foreign country review required by section 402(b)(1) of the International Religious Freedom Act of 1998 ... review and identify any non-state actors in such countries that have engaged in particularly severe violations of religious freedom, and designate, in a manner consistent with such Act, each such group as a non-state actor of particular concern for religious freedom operating in such reviewed country or surrounding region: Provided, That whenever the President designates such a non-state actor under this subsection, the President shall, as soon as practicable after the designation is made, submit a report to the appropriate congressional committees detailing the reasons for such designation.

FFRF Sues To Enjoin Executive Order's Directions On Johnson Amendment

Yesterday the Freedom From Religion Foundation filed suit in a Wisconsin federal district court challenging President Trump's Executive Order on Free Speech and Religious Liberty.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Trump, (WD WI, filed 5/4/2017) seeks an order declaring that the Executive Order violates the Establishment Clause and the equal protection element of the 5th Amendment by providing preferential treatment to churches, and that it exceeds the President's powers under Article II. The complaint also asks for an injunction preventing the Commissioner of Internal Revenue from implementing the Executive Order. The complaint quotes at length Presidential statements, particularly to Evangelical Christian audiences, promising to overturn the Johnson Amendment, and then contends:

The EO, with the President’s annotated interpretation and construction, makes clear that a relaxed and differential standard of enforcement of § 501(c)(3)’ electioneering restrictions shall be applied to churches and religious officials.

An FFRF press release announced the filing of the lawsuit. The suit came as the ACLU announced it would not sue over the Executive Order. (See prior posting).  [Thanks to Norman Buck for the lead.] 

FOIA Suit Seeks Information On Border Searches of Muslims

A Muslim advocacy organization this week filed a Freedom of Information Act suit in federal district court.  The complaint (full text) in Muslim Advocates v. U.S. Department of Homeland Security, (D DC, file 5/2/2017) alleges that plaintiff is seeking:

documents and information relating to the government’s border searches of electronic devices in the possession of persons from the seven Muslim-majority countries covered by President Donald Trump’s January 27, 2017 Executive Order, in addition to its border searches of electronic devices in the possession of persons – including U.S. citizens – whom U.S. Customs and Border Protection (“CBP”) agents perceived to be Muslim. As discussed widely in news reports, these searches – which may include the physical retention of an individual’s electronic devices and demand for their passwords – appear to have dramatically increased following the issuance of the Executive Order.

Courthouse News Service reports on the lawsuit.

ACLU Will Not Sue Over Religious Freedom Executive Order

The ACLU announced yesterday that after careful review of President Trump's new Executive Order on Free Speech and Religious Liberty, it has decided not to file suit. It said in part:

Today’s executive order signing was an elaborate photo-op with no discernible policy outcome. After careful review of the order’s text we have determined that the order does not meaningfully alter the ability of religious institutions or individuals to intervene in the political process. The order portends but does not yet do harm to the provision of reproductive health services.

President Trump’s prior assertion that he wished to ‘totally destroy’ the Johnson Amendment with this order has proven to be a textbook case of ‘fake news.’

Trump Issues Day of Prayer Proclamation and Religious Liberty Executive Order

Today President Trump issued a Proclamation (full text) designating today as National Day of Prayer. It reads in part:

We are also reminded and reaffirm that all human beings have the right, not only to pray and worship according to their consciences, but to practice their faith in their homes, schools, charities, and businesses    in private and in the public square    free from government coercion, discrimination, or persecution.  Religion is not merely an intellectual exercise, but also a practical one that demands action in the world.  Even the many prisoners around the world who are persecuted for their faith can pray privately in their cells.  But our Constitution demands more:  the freedom to practice one's faith publicly.

The President also marked the day by issuing an "Executive Order Promoting Free Speech and Religious Liberty" (full text) setting out four policy initiatives:

Section 1.... It shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom.....

Sec. 2....  All executive departments and agencies ... shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech. In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury....

Sec. 3.... The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code.

Sec. 4....  In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.

Magistrate Denies Bond In Female Genital Mutilation Prosecution

In Detroit yesterday a federal magistrate denied bond to two defendants charged with female genital mutilation (see prior posting), rejecting their attorney's claim that this is "part of a deeply held and longstanding religious tradition" of  the Indian-Muslim Dawoodi Bohra sect.  U.S. Magistrate Elizabeth Stafford commented that the defense is using religion "as a shield." The Detroit Free Press, reports:

The case involves  Dr. Fakhruddin Attar, 53, and his wife, Farida Attar, 50,  who were arrested April 21 at the Burhani Medical Clinic in Livonia, where prosecutors allege two Minnesota girls had their genitals cut in February. Attar is accused of letting another doctor use his clinic to perform the cuttings; his wife is accused of holding the girls' hands during the procedures to "comfort them."

The accused cutter is  Dr. Jumana Nagarwala, who was arrested April 12 and indicted last week in what is the the nation's first federal prosecution of genital cutting.  The FBI and prosecutors believe she has several more victims and claim that  she and her co-defendants have told others in their religious community to keep quiet about the secretive ritual.

MLive, reporting on the hearing, says:

Mary Chartier, the attorney for Fakhruddin Attar, said at Wednesday's hearing she intends to challenge the constitutionality of the 1997-passed federal law that bans genital mutilation on grounds that the ban is vague, overreaching and violates religious freedom. 

She noted that male circumcision, which also has religious origins -- but is seen by some as practical for hygienic reasons --  is legal while a similar procedure for girls is not.

Teacher's Defamation Verdict Against Archdiocese Upheld

In Gallagher v. Archdiocese of Philadelphia, 2017 Phila. Ct. Com. Pl. LEXIS 148 (PA Com. Pl., April 11, 2017), a Pennsylvania Common pleas court upheld a $508,000 jury verdict in a defamation suit by a 6th grade "lay teacher" in a Catholic school against the Archdiocese of Philadelphia.  The school administration had accused plaintiff Cindy Gallagher of unethical teaching practices in connection with a study guide she compiled to prepare her students for a standardized test. The court held that it was not required to defer to religious authorities because "the cheating incident was not conceived as an ecclesiastical matter only appropriate for religious resolution." It also concluded that the "ministerial exception" doctrine does not apply because Gallagher was a lay teacher, saying in part:

labeling Appellee as a minister of the church based on her role in prayer with her students and her participation in obtaining mandatory religious credits to be a teacher at the school would expand the scope of the ministerial exception beyond its intended purpose.

6th Circuit: Damage Action Against Kim Davis Is Not Moot

In Ermold v. Davis, (6th Cir., May 2, 2017), the U.S. 6th Circuit Court of Appeals reinstated a damage action against Rowan County, Kentucky Clerk Kim Davis brought by a same-sex couple who had been denied a marriage license by Davis.  The district court had dismissed the case because subsequent legislative action and an Executive Order by the governor assured that marriage licenses are now being issued to same-sex couples. The court held, however, that where a suit only seeks damages for past injury, a change in defendant's conduct does not moot the controversy.  Judge Siler also filed a concurring opinion emphasizing that the district court still might find that Davis was protected by Kentucky's Religious Freedom Restoration Act. [Thanks to Tom Rutledge for the lead.]

Senate Committee Holds Hearing on Religious Hate Crimes

Yesterday the U.S. Senate Judiciary Committee held a hearing on Responses to the Increase in Religious Hate Crimes.  Transcripts of the prepared statements presented by 5 witnesses as well as by Senator Chuck Grassley are available on the Committee's website.

Trump Administration Asks Court For Time To Reconsider Enjoined HHS Ruling on Transgender Rights

As previously reported, in December a Texas federal district court issued a nationwide preliminary injunction barring enforcement of a regulation issued by the Obama administration under the Patient Protection and Affordable Care Act that prohibits discrimination on the basis of gender identity or termination of pregnancy in health care programs that receive federal financial assistance. Yesterday the Department of Health and Human Services (HHS) filed a motion (full text) with the court asking that instead of moving ahead with briefing in the case, the court, while keeping its injunction in place, remand the matter to HHS for it to reconsider the rule.  The government argued in its motion that Trump Administration leadership should now "be given an opportunity to reevaluate the regulation and address the issues raised in this litigation."  Rewire reports on developments. This is one of a number of cases in the courts raising the question of whether civil rights laws that ban discrimination on the basis of "sex" cover discrimination on the basis of gender identity. (See prior posting.)

Suit Over Ownership of Astronauts' Bibles Is Settled

AP reports that last week, ahead of a hearing that had been scheduled by an Oklahoma state trial court for today, the Texas Department of Aging and Disability Services withdrew its claim of ownership to ten microfilm Bibles that Apollo 14 astronauts took with them into space in 1971.  The 6-year legal battle over ownership ended as the court last Friday awarded ownership to Tulsa author and businesswoman Carol Mersch who said the postage-stamp size Bibles had been given to her by NASA Chaplain John M. Stout while she was writing a book about the chaplain's work. Texas had claimed the Bibles should go to Stout's son who became a ward of the state in his later years.  Mersch says she will comply with Chaplain Stout's wishes and donate some of the Bibles to museums or seminaries around the world.

Namibian Court Says Members of Jehovah's Witness Order Are "Employees"

A Labour Court in Windhoek, Namibia last week held that members of the Worldwide Order of Special Full-Time Servants of Jehovah's Witnesses should be treated as "employees" under the country's Labour Act and Social Security Act.  Classifying the Congregation of Jehovah's Witnesses of Namibia as an employer means that it must provide maternity and sick leave payments for members of the Order. According to The Namibian yesterday:

Acting judge Unengu noted in his judgement that although the congregation and members of the order did not sign written employment contracts with each other, members of the order completed application forms to become a member in order to serve the church in a full-time capacity.

Once accepted as a member, they are also required to take a vow of obedience and poverty, which is taken to be an indication that they are prepared to live a modest lifestyle and to perform any tasks assigned to them by the order. Members of the order are also required to abstain from outside employment.

Acting judge Unengu further noted that members of the order had fixed hours of service from Mondays to Fridays and received a monthly allowance of about N$940.

Suit Challenges Funeral Home's LGBT Discrimination

A suit filed in March in a Mississippi state trial court against a Picayune, MS funeral home attracted attention yesterday after Lambda Legal issued a press release describing the case.  The complaint (full text) in Zawadski v. Brewer Funeral Services, Inc., (MS Cir. Ct., filed 3/7/2017), alleges that after the death of Robert Huskey, defendant funeral home backed out of its agreement to provide post-mortem transportation and cremation services for his body because it learned that he was a gay man whose next of kin was his lawful husband.  The funeral home's only explanation was that it did not "deal with their kind." The suit alleges infliction of emotional distress, breach of contract and misrepresentation.  Reporting on the lawsuit, WCYB News points out that Mississippi's Protecting Freedom of Conscience from Government Discrimination Act, which protects the refusal to provide goods or services on the basis of various religious and moral beliefs, has been enjoined while its constitutionality is litigated. The 5th Circuit heard arguments in the case last month. (See prior posting.)

Defamation Suit Against Minister Not Necessarily Barred By Ecclesiastical Abstention Doctrine

Lippard v. Holleman, (NC App., May 2, 2017) is a case in which plaintiff Kim Lippard who was fired as church pianist and vocalist in a Baptist church where she had served for 34 years sued the church's senior minister and its minister of music for defamation. Her husband also sued. Kim's firing ultimately went through the board of deacons, the church's personnel committee and then was referred to a meeting of the entire congregation.  It was alleged, among other charges, that at the meeting the senior minister read a "twenty page diatribe" against Kim and her husband.  In the case, the court of appeals vacated the trial court's dismissal of the suit, in part on procedural grounds.  But the court also refused to conclude that the ecclesiastical abstention doctrine required dismissal of the suit, saying in part:

Our courts have not yet considered whether a statement issued by a religious leader or made from the pulpit creates an actionable defamation claim capable of adjudication under neutral principles of tort law. However, several federal courts and out-of-state courts have confronted this question and concluded the First Amendment does not create a categorical bar to such defamation claims....

This line between an ecclesiastical and a secular dispute can be difficult to discern, and requires an intensive inquiry into the relevant facts and applicable laws. Defamation and religious questions are legally contextual. Libel may sometimes cloak itself in religious terminology, but that would not prevent civil adjudication of a claim.

Judge Recuses Himself Over Conscientious Objection To Gay Adoptions

The Louisville Courier Journal last week reported on Kentucky Family Court Judge W. Mitchell Nance who issued an order last Thursday stating that he will recuse himself from all adoption proceedings involving "homosexual parties." His order explains that "as a matter of conscience" he believes that "under no circumstance" would "the best interest of the child be promoted by the adoption by a practicing homosexual." He cited judicial ethics rules that require a judge to recuse himself when he has a personal bias or prejudice.

Satanic Temple Will Erect War Memorial In Park's Free Speech Zone

The Minneapolis Star Tribune last week reported on the controversy in Belle Plaine, MN over a war memorial in a city park. The memorial includes a 2-foot tall cross. After a complaint about the religious symbol on public property, the city initially ordered the cross removed. But then protesters who wanted the cross to remain occupied the park each day.  The city relented, but to meet constitutional objections it designated a small area in the park as a "free speech zone" where up to ten temporary memorials to honor veterans will be allowed. The first organization to apply was the Satanic Temple, and it will now erect a memorial to honor non-religious soldiers. The memorial be a black cube inscribed with inverted pentagrams with an upturned helmet on top.

Cert. Denied In Challenge To California Sexual Orientation Therapy Ban

The U.S. Supreme Court yesterday denied review in Welch v. Brown (Docket No., 16-845, cert. denied 5/1/2017). (Order List.) In the case, the 9th Circuit rejected facial free exercise and Establishment Clause challenges to California's ban on state-licensed mental health professionals providing "sexual orientation change efforts" for patients under 18. (9th Circuit's amended opinion dated Oct. 3, 2016). (SCOTUSblog case page.)