Trump Extends Effective Date of Travel Ban To Prevent Case From Becoming Moot

President Trump yesterday issued a Memorandum (full text) designed to prevent a dismissal on mootness grounds of the government's attempt to obtain Supreme Court review of the constitutionality of his second travel ban Executive Order.  The major provisions of the travel ban imposed a 90-day suspension of entry into the country of nationals of six Muslim-majority nations, and a 120-day suspension of the entry of refugees, both to be measured from the March 16, 2017 effective date of the Order.  The new Memorandum issued June 14 provides:

In light of questions in litigation about the effective date of the enjoined provisions and in the interest of clarity, I hereby declare the effective date of each enjoined provision to be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision.  To the extent it is necessary, this memorandum should be construed to amend the Executive Order.

Lyle Denniston has more on the President's action.

6th Circuit En Banc Hears Legislative Prayer Case

The U.S. 6th Circuit Court of Appeals sitting en banc yesterday heard oral arguments in Bormuth v County of Jackson (Docket No. 15-1869). (Audio of full oral arguments.)  In the case, a 3-judge panel of the 6th Circuit in a 2-1 decision held that the manner in which the Jackson County, Michigan Board of Commissioners opens its meetings with prayer violates the Establishment Clause.  (See prior posting.)

Hate Crimes In Canada Up In 2015

Statistics Canada yesterday released data on Police Reported Hate Crimes, 2015. According to the release from the government statistical agency:

Hate crimes rose by 5% in Canada in 2015, largely due to an increase in incidents targeting certain religious and ethno-cultural groups, specifically the Muslim population and Arabs or West Asians. For the year, police reported 1,362 criminal incidents that were motivated by hate in Canada, 67 more than the previous year....

Police-reported hate crimes targeting the Muslim population increased from 99 incidents in 2014 to 159 incidents in 2015, an increase of 61%. At the same time, the number of police-reported crimes targeting the Jewish population declined from 213 in 2014 to 178 in 2015. Hate crimes targeting the Jewish population accounted for 13% of all hate crimes, followed closely by hate crimes targeting the Muslim population (12%).

USCIRF Elects New Chair and Vice-Chairs

The U.S. Commission on International Religious Freedom yesterday elected Commissioner Daniel Mark as its new Chairman. (Press release). Mark is assistant professor of political science at Villanova University.  He succeeds Rev. Thomas J. Reese, S.J. whose term as chair has expired, but who remains on the Commission.  The Commission elected Sandra Jolley and Kristina Arriaga as new vice-chairs.

New Study: Clergy's Denomination Correlates Strongly With Political Party Affiliation

A Yale professor and Harvard graduate student this week posted a new study titled Partisan Pastor: The Politics of 130,000 American Religious Leaders.  Using a new data set, the researchers conclude that the religious denomination of a member of the clergy is much more likely to correlate with political party affiliation than is religious denomination of congregants. New York Times reports on the new study. [Thanks to Steven H. Sholk for the lead.]

British Court Says Disabled Care Home Resident Should Not Observe Muslim Customs

In Re: IH (Observance of Muslim Practice) (England & Wales Ct. Protection, June 12, 2017), a judge in Britain's Court of Protection (which has jurisdiction to make decisions in the best interest of those who lack capacity to do so for themselves) made his own findings about principles of Muslim religious law in denying a father's wishes for his 39-year old son who has a profound learning disability and resides in a care home. Relying on testimony of an expert witness in Islamic law, the court held that the son does not have an obligation to observe the practice of shaving or trimming pubic and underarm hair. The court had previously held that the son does not have an obligation to fast during Ramadan, and the father did not contest this ruling.  The Huddersfield Daily Examiner reports on the decision.

9th Circuit Hears Oral Arguments In Coach's Suspension For On-Field Prayer

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments (video of full arguments) in  Kennedy v. Bremerton School District.  In the case a Washington federal district court refused to enjoin the suspension of high school football coach Joe Kennedy.  The school took action against the coach because he insisted on praying at mid-field at the end of games. (See prior posting.) The Daily Caller yesterday reported on the case as the oral arguments approached.

9th Circuit Upholds Most Of Injunction Against Second Travel Ban Without Reaching Establishment Clause Issue

Yesterday in an 86-page per curiam opinion in State of Hawaii v. Trump, (9th Cir., June 12, 2017), the U.S. 9th Circuit Court of Appeals upheld most of the injunction previously issued by an Hawaii federal district court barring enforcement of the major provisions of President Trump's second travel ban Executive Order.  Summarizing its holding the 9th Circuit panel said:

we affirm the injunction as to Section 2(c), suspending entry of nationals from the six designated countries for 90 days; Section 6(a), suspending USRAP for 120 days; and Section 6(b), capping the entry of refugees to 50,000 in the fiscal year 2017.

However the court vacated the injunction to the extent that it prevented the government from conducting inter-agency reviews that do not impact third parties. The court also limited the injunction to government officials other than the President himself.

In its decision, the court did not reach the Establishment Clause arguments. Instead, it relied on statutory grounds:

we conclude that Plaintiffs have shown a likelihood of success on the merits at least as to their arguments that EO2 contravenes the INA by exceeding the President’s authority under § 1182(f), discriminating on the basis of nationality, and disregarding the procedures for setting annual admissions of refugees.

The 3 judges deciding the case were all Clinton appointees. The Justice Department previously asked the Supreme Court to suspend the district court's injunction as the case moves through the entire appellate process.

Trump Speaks To Faith & Freedom Coalition Conference

Last Thursday, President Trump delivered a nearly 35-minute speech (full text) to the Faith and Freedom Coalition's Road to Majority Conference held in Washington, D.C.  Much of the address focused on campaign promises that Trump had made to Christian evangelical groups as well as on more general campaign promises.  Here are a few excerpts from his address:

Your voices will resound across the halls of our Capitol, and across the world.  We recite today the words of Isaiah Chapter 1, Verse 17:  “Learn to do right; seek justice.  Defend the oppressed.  Take up the cause of the fatherless; plead the case of the widow.”

The entrenched interests and failed, bitter voices in Washington will do everything in their power to try and stop us from this righteous cause, to try to stop all of you.  They will lie.  They will obstruct.  They will spread their hatred and their prejudice.  But we will not back down from doing what is right.  Because, as the Bible tell us -- (applause) -- we know that the truth will prevail, that God’s glorious wisdom will shine through, and that the good and decent people of this country will get the change they voted for and that they so richly deserve.  (Applause.) ....

As long as I'm President, no one is going to stop you from practicing your faith or from preaching what is in your heart and from preaching -- and really, this is so important -- from the bottom of my heart -- from preaching from the people that you most want to hear and that you so respect.  So we have taken a very, very strong position, and you picked a winner.  (Applause.)   

So we want our pastors speaking out.  We want their voices in our public discourse.  And we want our children to know the blessings of God.  (Applause.)  Schools should not be a place that drive out faith and religion, but that should welcome faith and religion with wide, open, beautiful arms.  (Applause.)  Faith inspires us to be better, to be stronger, to be more caring and giving, and more determined to act in selfless and courageous defense of what is good and what is right.  It is time to put a stop to the attacks on religion.  (Applause.)....  

Last month, I traveled to Saudi Arabia to speak to the leaders of more than 50 Muslim and Arab countries, and to rally them in the common fight against the terrorism, which is a menace to people of all religions....

Finally, because my administration is deeply committed to the right of religious believers everywhere to be free from persecution, I called on these leaders to protect Muslims, and Christians, and Jews, and people of all faiths.  Because you know what’s going on there.  And it’s horrible -- horrible.  Terrorism is a threat, and it is a big threat to religious liberty around the world.  And all responsible nations must protect the right of people to live and worship according to their conscience.  (Applause.) 

Northern Ireland Court Says Humanist Wedding Ceremonies Must Be Recognized

According to Belfast News Letter, on Friday the Belfast, Northern Ireland High Court ruled that Humanist wedding ceremonies must be recognized, and that refusal to do so violates the European Convention on Human Rights.  The ruling came in the high profile planned marriage of football star Eunan O’Kane and model Laura Lacole. Authorities had told them that they would need a separate civil ceremony for legal recognition of their marriage.  The matter may not be finally settled however. Northern Ireland's Attorney General says he plans to appeal the High Court's decision.

In A First, Pakistan Imposes Death Sentence For Online Blasphemy

As reported by the Hindustan Times and The Sun, for the first time a Pakistani court has handed down a death sentence for blasphemy disseminated on social media. On Saturday, an Anti-Terrorism Court sentenced a 30-year old Shia Muslim who posted derogatory remarks about Sunni religious figures as well as about the Prophet Muhammad on Facebook.  Apparently the defendant engaged in a religious debate on Facebook and the person on the other side turned out to be a counter-terrorism agent. Defendant was charged under Pakistan Penal Code Section 295-C (use of derogatory remarks in respect of the Holy Prophet) and Sections 9 and 11W of the Anti-Terrorism Act (inciting sectarian hatred).

Recent Articles of Interest

From SSRN:

• Craig S. Lerner, The Tower of Babel Revisited: Global Governance as a Problematic Solution to Existential Threats, (North Carolina Journal of Law and Technology, Vol. 19, No. 1, 2017 Forthcoming).
• Yaniv Roznai, Negotiating the Eternal: The Paradox of Entrenching Secularism in Constitutions, (2017 Mich. St. L. Rev. 253).
• Derek Smith, Render Unto Caesar: The Constitutionality of Ontario's Effective Referral Requirement for Medical Assistance in Dying (June 7, 2017).
• Terry S. Kogan, Public Restrooms and the Distorting of Transgender Identity, (North Carolina Law Review, Vol. 95, No. 4, 2017).
• Alqahtani Suaad Muhammad, Western Feminism or Return to Authentic Islam? Jordanian Women in Faqir's Pillars of Salt and My Name Is Salma, (AWEJ for Translation & Literary Studies, Volume 1, Number 2, May 2017).

From SmartCILP:

• Paul Christopher Johnson, Possessed Persons and Legal Persons in Brazil, 31 Maryland Journal of International Law 180-216 (2016).
• Justin B. Richland. Paths In the Wilderness?: The Politics and Practices of Hopi Religious Freedom in Hopitutskwa, 31 Maryland Journal of International Law 217-243 (2016).
• Sara Movahed, Hope for the Hopi In a Post-Hobby Lobby World: The Supreme Court's Recent Interpretation of RFRA and Strengthening Native Americans' Religious-Based Land Rights Claims, 31 Maryland Journal of International Law 244-256 (2016).
• Andrew Forsyth, Book Review. Not Without Honor? Prophecy Without Contempt: Religious Discourse in the Public Square by Cathleen Kaveny, [Abstract], 29 Yale Journal of Law & Humanities 113-127 (2017).
• Charles Adside, III, Constitutional Damage Control: Same-Sex Marriage, Smith's Hybrid Rights Doctrine, and Protecting the Preacher Man After Obergefell, 27 George Mason University Civil Rights Law Journal 145-205 (2017).

New Trial Sought After Juror Dismissal For Hearing Holy Spirit

As previously reported, last month a Florida federal court jury found former Congresswoman Corrine Brown  guilty on 18 counts of fraud and corruption after the judge removed a juror who insisted the Holy Spirit had told him Congresswoman Brown was not guilty on all charges. Now a motion for a new trial has been filed (full text).  The motion in United States v. Brown, (MD FL, filed 6/8/2017), argues:

There is a substantial possibility the holy spirit was actually the juror's own mind or spirit telling him that one or more witnesses had not testified truthfully.

[Thanks to Ray Treadwell for the lead.]

Recent Prisoner Free Exercise Cases

In Kerry X v. Pennsylvania Department of Corrections, (3d Cir., June 6, 2017), the 3rd Circuit affirmed the dismissal of a suit by an inmate who practices a form of Islam known as Muhammad’sTemple of Islam who contended that he could not observe certain holy days.

In Bush v. Lackawanna County Prison, 2017 U.S. Dist. LEXIS 87494 (MD PA, June 7, 2017), a Pennsylvania federal district court dismissed for failure to prosecute a former inmate's commplaint that he had been unable to practice his Nation of Islam religion.

In Gadbury v. California, 2017 U.S. Dist. LEXIS 88422 (ED CA, June 7, 2017), a California federal magistrate judge dismissed an inmate's free exercise complaint that his vegetarian diet sometimes included fish or eggs.

Partisan Political Divide Impacts Religious Denominations

Two major newspapers today explore ways in which the severe political divide in the United States has impacted religious denominations.  The Wall Street Journal features an article: Russell Moore, Baptist Leader Who Shunned Trump, Splits the Faithful.  The New York Times reports: Religious Liberals Sat Out of Politics for 40 Years. Now They Want in the Game.

New USCIRF Report On Minority Religions In Kurdistan

Last week the U.S. Commission on International Religious Freedom released a 77-page report: Kurdistan Region of Iraq: New USCIRF Report on Religious Minorities in the KRI.  Here an excerpt from the Report's Executive Summary:

In recent years the Kurdistan Region of Iraq (KRI) has been a haven for minorities fleeing the turmoil and sectarian violence in the south of Iraq. The KRI offers religious freedoms that are comparatively robust as compared to those of its regional neighbors. Even so, troubling issues related to discrimination and even violence targeting ethnic and religious minorities exist, exacerbated by the KRI’s strained resources and security situation. Such issues must not be disregarded just because of the security situation in Iraq, or because of the KRI’s successes as compared with the wider region.

Missouri Governor Calls Special Legislative Session To Enact Pro-Life Bills

Missouri Governor Eric Greitens on Wednesday issued a Proclamation (full text) calling a Special Session of the state legislature for June 12 in order to enact legislation to respond to two pro-abortion developments.  One was the enactment by the City of St. Louis of of an Ordinance barring discrimination in employment and housing because of reproductive health decisions or pregnancy status. (See prior posting.)  The Governor's Proclamation states that the St. Louis Ordinance "undermines pregnancy care centers that provide critical resources for women seeking counseling and support for alternatives to abortion," and calls on the legislature to preempt legislation like that enacted by St. Louis.

The second development triggering the call for a Special Session of the legislature is the federal district court's decision last month in Comprehensive Health of Panned Parenthood Great Plains v. Williams, (WD MO, April 19, 2017) which preliminarily enjoined state law requirements that doctors who perform abortions have hospital admitting privileges, and that abortion clinics meet requirements for ambulatory surgical centers. The Governor's Proclamation contends that the effect of the ruling is to eliminate meaningful licensure of abortion clinics and the Proclamation calls for enactment of a number of new provisions on licensure of abortion clinics.

The Governor issued a press release and a Facebook video explaining his action in more detail, saying in part: "I'm pro-life, and I believe that we need to defend life and promote a culture of life here in the state of Missouri."

Anti-LGBT Activist Appeals ATS Lawsuit That He Won

As previously reported, earlier this week a Massachusetts federal district court dismissed an Alien Tort Statute lawsuit against activist Scott Lively who was sued over his conduct in Uganda helping anti-LGBT activists there.  The court held that there had been insufficient conduct in the United States to support a suit under the ATS.  However the court's opinion harshly criticized Lively's actions, calling them crimes against humanity. Now, in an unusual move, Lively has filed an appeal even though the suit against him was dismissed.  The Notice of Appeal (full text) in Sexual Minorities Uganda v. Lively, (D MA, filed 6/8/2017), says appellant seeks removal from the court's order of "certain extraneous but prejudicial language immaterial to the disposition of the case and which the district court had no jurisdiction to entertain or enter." It also seeks to have supplemental state law claims which the district court dismissed without prejudice to instead be dismissed with prejudice so they cannot be refiled in state court. Liberty Counsel, representing Lively, issued a press release announcing the appeal and describing their objections to the district court's Order:

Judge Ponsor improperly littered his Order with a prolonged tirade against Lively, badly distorting his Christian views and activism, and insulting him with such unbecoming epithets as “crackpot bigot[],” “pathetic,” “ludicrous,” “abhorrent” and numerous others.

Two FGM Defendants Released On Bond

The Detroit Free Press reported yesterday that a federal district court judge has released on bond to house arrest a doctor and his wife who are facing conspiracy charges in the first prosecutions under the federal female genital mutilation statute. (See prior posting.) The paper reports in part:

Dr. Fakhruddin Attar, 53, of Farmington Hills, is accused of letting another doctor use his clinic to perform genital cutting procedures on two 7-year-old Minnesota girls; his wife, Farida Attar, 50, is accused of holding the girls' hands during the procedure to keep them from squirming and to calm them.

Defense lawyers have claimed the Attars did not engage in any criminal  act, and that the procedure at issue is a protected religious rite-of-passage that involved no cutting....

Assistant U.S. Attorney Sara Woodward dropped a bombshell in court today in telling Friedman that the government believes the defendants have subjected as many as 100 victims to the procedure.

The primary defendant,  Dr. Jumana Nagarwala who is accused of performing the procedures remains in jail pending trial.

City Settles With Muslim Group Over Zoning Denial

Journal Online reported this week that just days after settling with the Department of Justice (see prior posting), the city of  Des Plaines, Illinois entered a settlement agreement with the Society of American Bosnians and Herzegovinians.  The organization sued after it was denied a zoning change that would have allowed it to operate a mosque on property it wished to purchase.  Under the settlement, the city will pay the organization damages of $580,379.

Prayer Over Football Game Loudspeaker May Be Banned

In Cambridge Christian School, Inc. v. Florida High School Athletic Association, (MD FL, June 7, 2016), a Florida federal district court, agreeing with a magistrate's recommendation (see prior posting), dismissed a suit brought by a Christian high school complaining that it was denied permission to use the stadium loudspeaker system to deliver a prayer at the Championship Game in which its football team was playing. The action was taken by the governing organization for athletics in Florida’s public schools-- a body which private schools must join if they wish to play against public schools.  The court said in part:

... [T]he entirety of the speech over the Stadium loudspeaker was government speech and ..., even if it were not, the Stadium loudspeaker is a non-public forum. Therefore, the FHSAA was permitted to deny Cambridge Christian’s request to use it to broadcast prayer during a school sporting event organized and governed by a state entity....

Here, ... there was no ban on communal prayer. Instead, the FHSAA simply declined to sponsor Cambridge Christian’s prayer, which is not a violation of the Free Exercise Clause....

The allegations of the Verified Amended Complaint ... allege only that Cambridge Christian was denied its traditional method of advancing the school’s mission during sporting events, and that the mission is a religious one. The mission itself, however, is not a religious belief, nor is broadcasting a prayer over a loudspeaker.... [E]ven if denial of access to the loudspeaker did burden a religious belief of Cambridge Christian, such a burden did not amount to a substantial one, but simply inconvenienced the belief, because Cambridge Christian was not denied alternate means of engaging in communal prayer. Accordingly, Cambridge Christian has failed to state a claim under Florida’s Religious Freedom Restoration Act. 

Pence Speaks To National Catholic Prayer Breakfast

Yesterday Vice President Mike Pence delivered a lengthy address (full text) to the National Catholic Prayer Breakfast in Washington, D.C.  Here are a few excerpts from his remarks:

To all the great American Catholics gathered here, let me assure you this morning, bright and early at this prayer breakfast, American Catholics have an ally in President Donald Trump.  (Applause.) 

President Trump stands for the religious liberty of every American and the right of our people of faith to live out your convictions in the public square.

President Trump stands with those who are persecuted for their faith around the world -- no matter the country they call home or the creed they profess.

And President Donald Trump stands with the most vulnerable -- the aged, the infirm, and the unborn.  (Applause.) ....

Protecting and promoting religious freedom is a foreign-policy priority of this administration.  And we will continue to work with this Congress to stand without apology for persecuted people of faith across the globe.  We will continue to stand with our allies and take the fight to the terrorists on our terms, on their soil until we drive the cancer of terrorism from the face of the Earth.  (Applause.)....

Since day one of this administration, President Donald Trump has been keeping his promise to stand for life, and life is winning in America again.

Court Enjoins Montana Rule Excluding Religious Schools From Tax Credit Program

In Espinoza v. Montana Department of Revenue, (MT Dist. Ct., May 26, 2017), a Montana state trial court enjoined the enforcement of a rule that bars religiously affiliated schools from participating in the state's program providing tax credits to Student Scholarship Organizations.  The Department of Revenue took the position that allowing religious schools to participate would violate state constitutional provisions barring appropriations or payments of public funds to aid sectarian schools.  the court held that the Department had incorrectly interpreted the constitutional provisions:

Non-refundable tax credits simply do not involve the expenditure of money that the state has in its treasury; they concern money that is not in the treasury and not subject to expenditure.  Since the plain language of Article V, Section 11(5) and Article X, Section 6(1) of the Montana Constitution prohibit appropriations, not tax credits, the Department's Rule 1 is based on an incorrect interpretation of law.  The court concludes that the term "appropriation" used in Article V, Section 11(5) and Article X, Section 6(1) does not encompass tax credits.

According to Daily Inter Lake, the state plans to appeal to the Montana Supreme Court. (See prior related posting.)

Illinois City Settles DOJ's Suit Over Mosque Rezoning

The Justice Department yesterday announced a Settlement Agreement (full text) with the City of Des Plaines, Illinois, settling a RLUIPA lawsuit brought against the city.  The suit alleged that the city improperly denied a zoning request that would have allowed a Bosnian Muslim religious organization to use property it wished to purchase for religious and educational purposes.  A federal district court ruled against the city in in February in refusing to grant it summary judgment. (See prior posting.) Under the settlement agreement, the city will comply with RLUIPA in the future and will provide training on RLUIPA to its officials and employees. Meanwhile, the Muslim group has acquired an alternative location for its mosque.

New York Appeals Court Dismisses Suit Opposing Kaporos Ritual

In a 3-2 decision, a New York state appellate court has dismissed a mandamus action seeking to require the New York Police Department and the New York City Health Department to enforce various Health Code, animal cruelty and other laws to stop the Orthodox Jewish ritual of kaporos.  The pre-Yom Kippur ritual involves using live chickens (which are later slaughtered) in an atonement ceremony.  In Alliance to End Chickens as Kaporos v New York City Police Department, (App. Div. June 6, 2017), the majority held that mandamus is available only to enforce a non-discretionary duty on the part of government officials.  Here the laws that plaintiffs seek to require defendants to enforce involve judgment and discretion of law enforcement officials.  Justice Gesmer (joined by Presiding Justice Andrias) dissented.

No Jurisdiction Under ATS Over Anti-Gay Pastor's Activity In Uganda

In Sexual Minorities Uganda v. Lively, (D MA, June 5, 2017), a Massachusetts federal district court dismissed a suit that had been brought under the Alien Tort Statute against Scott Lively, a pastor and anti-LGBT activist. The court said in part:

Defendant's positions on LGBTI people range from the ludicrous to the abhorrent....  He has tried to make gay people scapegoats for practically all of humanity's ills.... 

This crackpot bigotry could be brushed aside as pathetic, except for the terrible harm it can cause. The record in this case demonstrates that Defendant has worked with elements in Uganda who share some of his views to try to repress freedom of expression by LGBTI people in Uganda, deprive them of the protection of the law, and render their very existence illegal.... 

Plaintiff has filed this lawsuit under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, seeking monetary damages and injunctive relief based on Defendant's crimes against humanity. Defendant now seeks summary judgment in his favor arguing that, on the facts of record, the ATS provides no jurisdiction over a claim for injuries -- however grievous -- occurring entirely in a foreign country such as Uganda. Because the court has concluded that Defendant's .jurisdictional argument is correct, the motion will be allowed.

Anyone reading this memorandum should make no mistake. The question before the court is not whether Defendant's actions in aiding and abetting efforts to demonize, intimidate, and injure LGBTI people in Uganda constitute violations of international law. They do. The much narrower and more technical question posed by Defendant's motion is whether the limited actions taken by Defendant on American soil in pursuit of his odious campaign are sufficient to give this court jurisdiction over Plaintiff's claims. Since they are not sufficient, summary judgment is appropriate for this, and only this, reason. 

Liberty Counsel which represented Lively issued a press release on the decision describing Lively's activities as "sharing his biblical views on homosexuality during three visits to Uganda...."

Supreme Court Denies Cert. In RFRA Challenge To Court Martial

The U.S. Supreme Court yesterday denied review in Sterling v. United States,(Docket No. 16-814, cert. denied 6/5/2017) (Order List).  In the case, the U.S. Court of Appeals for the Armed Forces held that a Marine Lance Corporal failed to establish a prima facie case under RFRA of a substantial burden to sincerely held religious beliefs in defending against charges growing out of her work space posting of unauthorized signs containing Biblical quotations. (See prior posting.)  Fox News reports on the Supreme Court's action.

Supreme Court: Pension Plans of Religiously Affiliated Hospitals Are ERISA "Church Plans"

Giving a major win to religiously affiliated health care systems, the U.S. Supreme Court today in Advocate Health Care Network v. Stapleton, (Sup. Ct., June 5, 2017), held that their retirement plans qualify as exempt "church plans" under ERISA.  Interpreting ambiguous language in the statute, Justice Kagan writing for a unanimous court (Gorsuch, J. not participating) said:

ERISA provides (1) that a “church plan” means a “plan established and maintained . . . by a church” and (2) that a “plan established and maintained . . . by a church” is to “include[] a plan maintained by” a principal-purpose organization. Under the best reading of the statute, a plan maintained by a principal-purpose organization therefore qualifies as a “church plan,” regardless of who established it. We accordingly reverse the judgments of the Courts of Appeals.

Justice Sotomayor filed an opinion saying that she joins the Court's opinion, but has questions whether if Congress were reconsidering the issue today it would grant the church-plan exemption to some of the largest health-care providers in the country, which is the result of the Court's decision.

7th Circuit Upholds Transgender Student's Bathroom Rights

In Whitaker v. Kenosha Unified School District, (7th Cir., May 30, 2017), the U.S. 7th Circuit court of Appeals affirmed a district court's grant of a preliminary injunction requiring a Wisconsin high school to permit 17-year old Ash Whitaker, a transgender male, to use the boys' rest rooms.  Summarizing its holding, the court said in part:

Ash has sufficiently demonstrated a likelihood of success on his Title IX claim under a sex‐stereotyping theory. Further, because the policy’s classification is based upon sex, he has also demonstrated that heightened scrutiny, and not rational basis, should apply to his Equal Protection Claim. The School District has not provided a genuine and exceedingly persuasive justification for the classification.

Rejecting the school's privacy arguments, the court said in part:

What the record demonstrates here is that the School District’s privacy argument is based upon sheer conjecture and abstraction.... A transgender student’s presence in the restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates.

The Hill reports on the decision.

Recent Articles of Interest

From SSRN:

• Teneille R. Brown, Medical Futility and Religious Free Exercise, (First Amendment Law Review, Vol. 15, No. 43, 2017).
• Robert W. McGee, Are Muslims More Likely to Beat Their Wives Than Members of Other Religions? An Empirical Study of 60 Countries, (May 30, 2017).
• Kim Treiger-Bar-Am, Copyright and Positive Freedom: Kantian and Jewish Thought on Authorial Rights and Duties, (63(4) Journal of the Copyright Society U.S.A. 551 (Fall, 2016)).
• Robert C. Blitt, Equality and Nondiscrimination through the Eyes of an International Religious Organization: The Organization of Islamic Cooperation's (OIC) Response to Women's Rights, (Wisconsin International Law Journal, Vol. 34, No. 4, 2017).
• Stephen Gillers, A Rule to Forbid Bias and Harassment in Law Practice: A Guide for State Courts Considering Model Rule 8.4(g), (Georgetown Journal of Legal Ethics, Vol. 30, No. 195, 2017).
• Vivencio Ballano, Enforcing the Canon Law: Normative Pluralism and Clerical Abuse in the Catholic Church, (May 6, 2017).
• Ari Herbert, Can We Still Talk Things Out?: A Case Study of Campus Hate Speech Regulations at the University of Texas, (Connecticut Public Interest Law Journal, Forthcoming).
• Kaiponanea T. Matsumura, Choosing Marriage, (UC Davis Law Review, Vol. 50, No. 5, 2017).

From SmartCILP:

• Stephanie Pisko, (Un?)lawful Religious Discrimination [link is pdf download], 9 Drexel Law Review 101-128 (2016).
• Arthur H. Garrison, Defining the Meaning and Purpose of Justice, Law, and Criminal Justice: A Hermeneutical Judeo-Christian Biblical Perspective, 55 Journal of Catholic Legal Studies 1-82 (2016).

Recent Prisoner Free Exercise Cases

In Ruffin v. Hinkley, 2017 U.S. Dist. LEXIS 81827 (D ME, May 30, 2017), a Maine federal magistrate judge recommended that a Muslim inmate's complaint that he was served pork on 3 occasions be dismissed but that he be allowed to move ahead with his claim that he was denied various religious material and items while Christian inmates receive religious services.

In Johnson v. Doty, 2017 U.S. Dist. LEXIS 82179 (SD NY, May 19, 2017), a New York federal district court dismissed with leave to file an amended complaint a suit by a Muslim inmate seeking $1 million in damages and injunctive relief growing out of plaintiff effectively being denied the ability to attend Eid-ul-Adha services in 2014. Plaintiff contended that he suffers from mental anguish, trauma and nightmares of going to hell for missing the observance. The court concluded plaintiff had not alleged personal involvement by any of the named defendants.

In Jackson v. Collins, 2017 U.S. Dist. LEXIS 82793 (WD MO, May 31, 2017), a Missouri federal district court in rejecting motions to reconsider prior orders held that neither RLUIPA nor the Establishment Clause were violated by the failure of prison authorities to have "Atheism" listed among the choices of religious preference gathered at intake on an inmate's face sheet. "No Religious Preference," "Unknown," and "Other" are among the choices available.

In Adams v. Williams, 2017 U.S. Dist. LEXIS 81926 (ED AR, May 30, 2017), an Arkansas federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 83026, April 12, 2017) and dismissed without prejudice an inmate' suit that merely alleged that he was forcefully denied his religion as a form of punishment.

In Stevens v. Cain, 2017 U.S. Dist. LEXIS 83889 (MD LA, June 1, 2017), a Louisiana federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 84013, May 23, 2017), and dismissed an inmate's complaint that a TB test was forcibly administered after he refused for religious reasons to have the test performed.

In Vincent v. Stewart, 2017 U.S. Dist. LEXIS 83522 (WD WA, May 31, 2017), a Washington federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 84167, April 17, 2017) and dismissed a suit by a Hare Krishna inmate who sought modification of the Vegetarian Religious Diet to, among other things, add a pint of fresh milk daily which his personal religious beliefs required.

In Carr v. Jackson, 2017 U.S. Dist. LEXIS 84442 (ND GA, June 1, 2017), a Georgia federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 84444, June 1, 2017) and dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint that he never received responses to his requests for Halal or Kosher meals.

6th Circuit: Religious School Not Substantially Burdened By Relocation Denial

In Livingston Christian Schools v. Genoa Charter Township, (6th Cir., June 2, 2017), the U.S. 6th Circuit Court of Appeals dismissed a RLUIPA claim by a Christian school that was denied a special use permit needed for it to relocate.  The school had concluded that remaining in its present location on a long-term basis would end in the dissolution of the school from lack of enrollment and income.  However the Court held as a matter of law that the denial of the permit did not impose a "substantial burden" on the school:

LCS has not alleged that any functions of its religious school were unable to be carried out on the [current] property. LCS focuses on increasing enrollment and raising revenue, but has not identified any religious activity—or even any traditionally secular one—that could not be performed at the [current] property.

The school had also complained that it was burdened because there was no other suitable property in Genoa Township for it to use. But the court disagreed, saying in part:

... [T]he boundaries of jurisdictions on the local-government level are often arbitrary in practice. Holding that a religious institution is substantially burdened any time that it cannot locate within such a small area—even if it could locate just across the border of the town limits—would be tantamount to giving religious institutions a free pass from zoning laws. 

Ban On Supreme Court Plaza Demonstrations Does Not Violate RFRA

In Payden-Travers v. Talkin, (D DC, May 31, 2017), the D.C. federal district court dismissed plaintiffs' claim that the statute and court rule that prohibit demonstrations on the Plaza in front of the Supreme Court violate their rights under the Religious Freedom Restoration Act. They contended that their faith requires them to speak out against war, torture and the death penalty, and that merely demonstrating on the sidewalk adjacent to the Court would not make clear to passers-by that their objections were connected to the Court.  The district court held, however, that the ban does not rise to the level of a "substantial burden" as required by RFRA, saying in part:

Plaintiffs do not allege in their complaint that their religions require them to demonstrate and pray in ways such that the public will associate their activities with the United States Supreme Court. It simply alleges that their religions require them to “speak out” and “distance themselves” from certain practices.... [T]here are still countless other means by which Plaintiffs could satisfy this religious obligation, many of which may have nothing to do with the Supreme Court at all. Section 6135 and Regulation 7 prohibit only one. Accordingly, although section 6135 and Regulation 7 prevent Plaintiffs from engaging in religiously motivated conduct at a particular location, the Court concludes that they do not “substantially burden” Plaintiffs’ religious exercise.

Law.com reports on the decision.

UPS Sued Over Firing of Muslim Employees For Prayer Breaks

In a press release yesterday, CAIR reports:

The Minnesota chapter of the Council on American-Islamic Relations ... today announced the filing of a lawsuit in state court against UPS Mail Innovations and Doherty Staffing Solutions for firing multiple [Somali] Muslim employees who wanted to pray during their break times after previously having allowed them to pray.

The plaintiffs stated that there had been no problem with them using their break time to pray until a new UPS operations manager was hired. He then terminated employees who wanted to pray.

Catholic Order Files For Bankruptcy In Settlement of Sex Abuse Claims

The Minneapolis Star Tribune and Premier report that yesterday the Crosier Fathers and Brothers, a Roman Catholic order, filed for bankruptcy in a Minnesota federal Bankruptcy Court. Along with the filing, the Order agreed to a $25.5 million settlement with 43 plaintiffs who have filed sex abuse lawsuits against the Order.  The sex abuse by 19 members of the Order occurred from the 1960's to the mid-1980's. The settlement is one of the largest per victim payments among the 14 Catholic Church bankruptcies around the country so far.

Justice Department Seeks Supreme Court Review and Stay In Travel Ban Cases [UPDATED]

As reported by the Washington Post, the Justice Department yesterday in two filing with the U.S. Supreme Court sought to overturn lower court decisions invalidating President Trump's second travel ban executive order.  The U.S. filed a petition for certiorari (full text) in Trump v. International Refugee Assistance Project, asking the Supreme Court to grant review of the 4th Circuit's en banc decision (see prior posting) upholding an injunction against enforcement of Section 2(c) of the Executive Order which imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. It also filed a motion (full text) asking the Supreme Court to stay the lower court's injunction while the appeal to the Supreme Court is pending, and asking for expedited consideration of the cert. petition.  Responding to the request for expedited consideration, the Supreme Court on June 2 issued an order calling for respondents to file a response by June 12.

The government also filed an Application for Stay Pending Appeal (full text) in Trump v. State of Hawaii.  The Application asks the Court to stay the preliminary injunction (see prior posting) issued by a Hawaii federal district court while the appeal of that decision is being considered by the 9th Circuit, and to stay it further while any government appeal to the Supreme Court thereafter is pending.The Hawaii decision enjoined enforcement of both Section 2 of the Executive Order (90 day ban on entry into U.S. of nationals of six Muslim-majority nations) and Section 6 (120 day suspension of entry of refugees).

Hebrew Teacher's ADA Suit Barred By Ministerial Exception Doctrine

Grussgott v. Milwaukee Jewish Day School, Inc., (ED WI, May 30, 2017), a Wisconsin federal district court held that the ministerial exception doctrine requires dismissal of a suit by a teacher in a Jewish Day School who claims she was fired in violation of the Americans With Disabilities Act.  The court concluded that plaintiff, who taught Hebrew to second and third graders, and had taught an integrated Hebrew-Jewish Studies curriculum, qualifies as a "minister" for purposes of the ministerial exception doctrine.  In rejecting her argument that her teaching of Hebrew was cultural, not religious, the court nevertheless commented that "a religious organization could abuse this deference by claiming that certain apparently secular activities are actually religious."

Farmers' Market's Exclusion of Vendor Over Same-Sex Marriages Views Is Challenged

A suit was filed on Wednesday in a Michigan federal district court challenging on 1st and 14th Amendment grounds the City of East Lansing's Vendor Guidelines for its Farmers' Market. The complaint (full text) in Country Mill Farms, LLC v. City of East Lansing, (WD MI, filed 5/31/2017), claims that the city modified its Guidelines to target Country Mill Farms because its owner, Stephen Tennes, shared on Facebook his Catholic belief opposing same-sex marriage.  Tennes posted that while his Farm hosts weddings, it only hosts those that conform to his belief that marriage is a sacramental union between one man and one woman. Following this post, city officials unsuccessfully attempted to pressure Country Mill to end its participation in the Farmer's Market.  When that was unsuccessful, the city changed its Guidelines to require all Farmers' Market participants to abide by the city's Civil Rights Ordinance both while at the market and as a general business practice.  The complaint also alleges that this is an attempt by the city to extend the reach of its ordinances beyond its borders in violation of the Michigan Home Rule City Act.  ADF issued a press release announcing the filing of the lawsuit.

Draft of Proposed Broader Contraceptive Mandate Exemption Becomes Available

As previously reported, the Office of Management and Budget has under review interim final rules that will expand conscience exemptions from the Obamacare contraceptive coverage mandate. A "leaked" 125-page draft of the Release proposing the rules (full text) has now become available.  The rules expand the complete exemption from the contraceptive coverage mandate to any entity that has religious beliefs or moral convictions objecting to some or all contraceptive coverage. This includes churches, any non-profit organization (religious or otherwise), closely-held for-profit companies, and publicly-held for-profit companies.  The rule also assures an exemption for any individual who objects to being covered or paying for some or all contraceptive services because of sincerely held religious beliefs or moral convictions.

As explained by the Release:

These interim final rules expand exemptions for religious beliefs and moral convictions for certain entities or individuals whose health plans may otherwise be subject to a mandate of contraceptive coverage through guidance issued pursuant to the Patient Protection and Affordable Care Act (ACA). These rules do not alter the discretion of the Health Resources and Services Administration (HRSA), a component of the U.S. Department of Health and Human Services (HHS), to maintain the guideline requiring contraceptive coverage where no such objection exists. These rules also leave the accommodation process in place as an optional process for certain exempt entities who wish to use it voluntarily.

Because these would be promulgated as Interim Final Rules rather than as Proposed Rules, they would go into effect immediately, with public comment on whether the Interim Rules should be modified or become permanent in their current form coming after the Interim Rules' effectiveness.  This is permitted under the Administrative Procedure Act for rules that grant an exemption or relieve a restriction. (5 USC Sec. 553(d)). Vox yesterday had more on the proposed rules.

Settlements Reached In New Jersey Mosque Zoning Cases

The Justice Department announced Tuesday that a settlement has been reached with Bernards Township, New Jersey in the the Justice Department's Religious Land Use and Institutionalized Persons Act lawsuit over the town's refusal to grant zoning approval for construction of a mosque by the Islamic Society of Basking Ridge. Under the agreement, the town will permit the mosque to be built.  It will also amend its zoning ordinances.  A $3.25 million settlement was also reached in a suit by the Islamic Society of Basking Ridge similarly charging RLUIPA violations, as well as violations of the 1st and 14th Amendments, in the Bernards Township's refusal to grant site plan approval. The Atlantic reports on the settlements.

Rule Under Review To Modify Contraceptive Coverage Mandate

The Office of Management and Budget reports that an Interim Final rule on Coverage Of Certain Preventive Services Under The Affordable Care Act is pending regulatory review.  The New York Times reports that this rule will relax the controversial requirements relating to contraceptive coverage for employees of religious non-profits.

Muslim Scholars Are Target of Taliban

A New York Times report (May 28) is titled Taliban Target: Scholars of Islam.  It recounts in part:

The scholars have long been targets, of one kind or another, in Afghanistan. Their words carry weight across many parts of society, and they are assiduously courted for their support — and frequently killed for their criticism.

Hundreds are believed to have been killed over the past 16 years of war, and not always by the Taliban. But there has been a definite uptick in the targeted killing of scholars — widely known as ulema — as the Taliban have intensified their offensives in the past two years, officials say.

It is being taken as a clear reminder of the weight the insurgents give not just to military victories but also to religious influence in their campaign to disrupt the government and seize territory.

Congressional Commission Holds Hearings on Countering Religious Violence

On May 24, the U.S. House of Representatives Tom Lantos Human Rights Commission held a hearing on Freedom of Belief: Countering Religious Violence.  A video of the hearing and transcripts of prepared remarks of members and witnesses are available on the Committee's website.

Recent Articles of Interest

From SSRN:

• Samuel Moyn, Thomas Pink, John Finnis & Lorenzo Zucca, Christian Human Rights: A Debate, (King's Law Journal, Vol 28.1 (2017), p.1-50).
• Barry W. Bussey, Rights Inflation: Attempts to Redefine Marriage and the Freedom of Religion: The Case of Trinity Western University School of Law, (Regent University Law Review, Vol. 29, No. 197, 2017).
• Sepehr Shahshahani & Lawrence J. Liu, Religion and Judging on the Federal Courts of Appeals, (May 20, 2017).
• Christopher C. Lund, Religion is Special Enough, (Virginia Law Review, Vol. 103, p. 481, 2017).
• Howard Kislowicz, The Court and Freedom of Religion, ((2017) 78 S.C.L.R. (2d) 221).
• Adam Epstein, Michigan and Sports Law, (Journal of Law, Business & Ethics, Vol. 24, Forthcoming).
• Santiago Legarre & Gregory J. Mitchell, Secondary Effects and Public Morality, (40 Harvard Journal of Law and Public Policy 320 (2017)).
• Courtney G. Joslin, The Gay Rights Canon and the Right to Nonmarriage, (97 Boston University Law Review 425 (2017)).
• Mohamed Badar & Masaki Nagata, Modern Extremist Groups and the Division of the World: A Critique from Islamic Perspective, (Arab Law Quarterly 31 (2017) Forthcoming).
• Mohamed Badar, Masaki Nagata & Tiphanie Tueni, The Radical Application of the Islamist Concept of Takfir, (Arab Law Quarterly 31 (2017) 132-160).

From SmartCILP:

• Heather M. Kolinsky, Situating the Corporation Within the Vulnerability Paradigm: What Impact Does Corporate Personhood Have on Vulnerability, Dependency, and Resilience, [Abstract], 25 American University Journal of Gender, Social Policy & Law 51-86 (2017).
• Patrick B. Grant, Islamic Law, International Law, and Non-International Armed Conflict in Syria, 35 Boston University International Law Journal 1-37 (2017).

No Ramadan Divorces In Palestinian Territories

According to a report today from Al Jazeera, Mahmud Habash, the chief judge of Palestinian Islamic courts in the West Bank and Gaza, has ordered judges to grant no divorces during Ramadan.  Only religious courts have jurisdiction over divorces in the Palestinian Authority.  Habash said that based on experience from previous years, some litigants make "quick and ill-considered decisions" after they have not eaten or smoked.

Recent Prisoner Free Exercise Cases

In Debarr v. Clark, 2017 U.S. Dist. LEXIS 76941 (D NV, May 19, 2017), a Nevada federal magistrate judge recommended that a Pagan inmatebe allowed o move ahead with his complaint that he was denied access to any outdoor area for the practice of his faith and that while in disciplinary segregation he could not participate in any Solstice holiday ceremonies.

In Davis v. Abercrombie, 2017 U.S. Dist. LEXIS 77609 (D HI, May 22, 2017), an Hawaii federal district court gave final approval to the settlement in a class action by Native Hawaiian inmates who complained that they were denied access to religious items and to a spiritual advisor and group religious activities.

In Todd v. California Department of Corrections and Rehabilitation, 2017 U.S. Dist. LEXIS 79852 (ED CA, May 23, 2017), a California federal magistrate judge recommended dismissing on qualified immunity grounds religious exercise complaints by inmates who were members of the "Ecclesia Creatoris" religious organization which promotes the Creativity religion.  It was reasonable for officials to conclude that Creativity is not a "religion" for 1st Amendment purposes.

In Merrick v. Penzone, 2017 Ariz. App. Unpub. LEXIS 625 (AZ App., May 23, 2017), the Arizona Court of appeals affirmed dismissal of a suit by an inmate who is a member of the Fundamental American Christian Temple who was denied unmonitored, unrecorded telephone calls with his brother who was a church elder.

Ramadan Begins Tonight--Trump Issues Greetings

The Muslim holy month of Ramadan begins this evening.  President Donald Trump today released a statement (full text) wishing all Muslims a joyful Ramadan. He said in part:

During this month of fasting from dawn to dusk, many Muslims in America and around the world will find meaning and inspiration in acts of charity and meditation that strengthen our communities.  At its core, the spirit of Ramadan strengthens awareness of our shared obligation to reject violence, to pursue peace, and to give to those in need who are suffering from poverty or conflict.

This year, the holiday begins as the world mourns the innocent victims of barbaric terrorist attacks in the United Kingdom and Egypt, acts of depravity that are directly contrary to the spirit of Ramadan.  Such acts only steel our resolve to defeat the terrorists and their perverted ideology.

Also, reflecting an increase in anti-Muslim activity around the country, the organization Muslim Advocates issued an arson alert to mosques throughout the United Sates.

One Pleads Guilty To Voter Fraud In Attempt To Get Approval For Townhouses For Hasidic Jews

As previously reported, the village of Bloomingburg, New York has been embroiled in a battle over whether an ultra-Orthodox Jewish community would expand into the town.  Real estate developer Kenneth Nakdimen and his associates sought to build a  396-unit townhouse development there to be marketed to Hasidic Jews.  They faced local opposition which the developers said was fueled by anti-Semitism.  As reported by the Wall Street Journal, the developers were ultimately indicted by the federal government for their voting fraud tactics in seeking to obtain approval for their project.  Yesterday the U.S. Attorney's office for the Southern District of New York announced that Nakdimen has pleaded guilty to one count of conspiracy to corrupt the electoral process. The announcement describes the basis for the charges:

[B]y late 2013, the first of their real estate developments had met local opposition, and still remained under construction and uninhabitable.  When met with resistance, rather than seek to advance their real estate development project through legitimate means, NAKDIMEN and others instead decided to corrupt the democratic electoral process in Bloomingburg by falsely registering voters and paying bribes for voters who would help elect public officials favorable to their project.

....   NAKDIMEN and others took steps to cover up their scheme to register voters who did not actually live in Bloomingburg by, among other things, creating and back-dating false leases and placing items like toothbrushes and toothpaste in unoccupied apartments to make it seem as if the falsely registered voters lived there.

UPDATE: On June 6, the U.S. Attorney's office announced that a second defendant, Shalom Lamm, has now also pleaded guilty to conspiracy to corrupt the electoral process.

[Thanks to Steven H. Sholk for the lead.]

Suit Charges Dearborn Pizza Store With Serving Pepperoni As Halal

Detroit Free Press reports on a class action lawsuit filed yesterday in a Michigan state trial court against Little Caesars claiming that the chain's pizza store in Dearborn placed pizza topped with pork-based pepperoni in boxes marked Halal.  The suit which seeks $100 million in damages says that plaintiff Mohamad Bazzi has encountered the problem twice, once in March and once this week. Plaintiff claims breach of contract, negligent misrepresentation, unjust enrichment and fraud.  Bazzi's attorney says the suit was filed rapidly ahead of Ramadan which begins this evening so that other Muslims would not accidentally eat pork from the pizza outlet during the holy days.

3rd Circuit Clarifies Burden of Proof For Preliminary Injunction In 1st Amendment Cases

In Reilly v. City of Harrisburg, (3rd Cir., May 25, 2017), a suit challenging a city's ban on demonstrations within 20 feet of any abortion clinic property, the 3rd Circuit clarified the burden of proof requirement for a preliminary injunction in 1st Amendment cases:

...[A] movant for preliminary equitable relief must meet the threshold for the first two “most critical” factors: it must demonstrate that it can win on the merits (which requires a showing significantly better than negligible but not necessarily more likely than not) and that it is more likely than not to suffer irreparable harm in the absence of preliminary relief. If these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief.... “How strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.” ...

In deciding whether to issue a preliminary injunction, plaintiffs normally bear the burden of demonstrating a sufficient likelihood of prevailing on the merits. However, in First Amendment cases where “the Government bears the burden of proof on the ultimate question of [a statute’s] constitutionality, [plaintiffs] must be deemed likely to prevail [for the purpose of considering a preliminary injunction] unless the Government has shown that [plaintiffs’] proposed less restrictive alternatives are less effective than [the statute].”.... This is because “the burdens at the preliminary injunction stage track the burdens at trial,” and for First Amendment purposes they rest with the Government.

Suit Challenges Zoning Denial For Mosque

A suit was filed in a New Jersey federal district court yesterday claiming that the Bayonne (NJ) zoning board violated RLUIPA as well as the U.S. and New Jersey constitutions in denying a Muslim religious congregation zoning approval for construction of a mosque. The complaint (full text) in Bayonne Muslims v. City of  Bayonne, (D NJ, filed 5/25/2017) alleges in part:

Plaintiffs applied to the Zoning Board for routine variances, which were needed to convert a decrepit, abandoned, and trash-strewn warehouse on a blighted street into a vibrant community mosque. Plaintiffs then endured years of bigotry and hate crime from those opposed to the mosque. Ultimately, the Zoning Board capitulated to the community’s anti-Muslim animus and denied the application. It did so even though it had previously granted indistinguishable variances to Christian churches. The Zoning Board violated both federal and state law to achieve its desired outcome.

Jersey Journal reports on the lawsuit.

4th Circuit En Banc Upholds Preliminary Injunction Against Trump's Second Travel Ban Executive Order

Today the U.S. 4th Circuit Court of Appeals sitting en banc upheld (with a minor exception) the nationwide preliminary injunction entered by a Maryland federal district court barring enforcement of a major provision of President Trump's second travel ban Executive Order.  By a 10-3 vote, in a series of opinions spanning 205 pages, the Court of Appeals in International Refugee Assistance Project v. Trump, (4th Cir., May 25, 2017), affirmed the award of a preliminary injunction against enforcement of Section 2(c) of the Executive Order which imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. The Court however-- in a step that has little practical significance-- limited the injunction to various cabinet officers and departments and their officers, agents and employees, but lifted the injunction against to the President himself.

The majority opinion, written by Chief Judge Gregory (joined in full by 6 other judges and in part by 2 more (with one judge joining only in the judgment), focused on the Establishment Clause.  The Court said in part:

The question for this Court, distilled to its essential form, is whether the Constitution ... remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.

Judge Keenan joined by Judge Thacker filed a concurring opinion indicating that they would also uphold the preliminary injunction because the President failed to make adequate finding as required under 8 U.S.C. § 1182(f) before he can exclude a group of aliens that entry of that group of aliens would be detrimental to the interests of the United States.

Judge Wynn filed a concurring opinion indicating that he would also find that the Executive Order exceeded the President's authority under the Immigration Act.  Judge Thacker also filed a concurring opinion, stating that he concurred even though he would not consider statements made by candidate Trump before he took the oath of office as relevant.

Judges Niemeyer, Shedd and Agee, each writing a dissenting opinion concurred in by the others. The opinions, among other things, objected to the consideration of campaign statements "to recast a later-issued executive order," and argued that plaintiffs lacked standing.

The Washington Post reporting on the decision notes:

All of the judges in the majority were placed on the court by Democratic presidents and the three dissenting judges ... were all nominated to the bench by Republican presidents.

UPDATE: Attorney General Jeff Sessions announced on Thursday that the government will seek review of the decision in the U.S. Supreme Court.

Suit Challenges School District's Anti-Islamophobia Program

Freedom of Conscience Defense Fund announced yesterday that it has filed a religious discrimination lawsuit in a California federal district court against the San Diego Unified School District.  The suit, filed on behalf of a group of parents, challenges an Anti-Islamophobia program instituted by the school district to combat bullying and harassment of Muslim students.  The lawsuit particularly objects to the school board's collaboration with CAIR, a group which plaintiffs say has ties to radical Islam.  The complaint alleges in part:

Under the guise of this anti-bullying program, Defendants have fallen in with [CAIR] to set up a subtle, discriminatory scheme that establishes Muslim students as the privileged religious group within the school community.  Consequently, students of other faiths are left on the outside looking in, vulnerable to religiously motivated bullying, while Muslim students enjoy an exclusive right to the School District’s benevolent protection.

Muslim Student Sues Claiming Grade Was Result of Religious Discrimination

NJ Advance Media reported yesterday on a religious discrimination lawsuit filed by a Union County College Muslim student.  Plaintiff Sahna ElBanna claims that her business professor, Toby Grodner, gave her an "F" in a course in which she earned A's on exams that count for 60% of the grade. The professor says ElBanna received F's on multimedia assignments that comprised the remaining 40% of her grade. ElBanna claims that Grodner made derogatory comments about Muslims in class-- using the terms "Muslim" and "terrorist" interchangeably, and questioning her about her religion.

Long Skirts, Title II vs. Title VII

In Jalal v. Lucille Roberts Health Clubs, Inc., (SD NY, May 22, 2017), a New York federal district court dismissed a suit brought by a Jewish woman against a health club which refused to allow her to wear a long skirt while using gym equipment.  In the suit, plaintiff Yosefa Jalal alleged that by refusing to allow her to dress as required by her religious beliefs, the health club violated the public accommodation provisions (Title II) of the 1964 Civil Rights Act. The court disagreed, saying in part:

Here, plaintiff fails to allege facts plausibly supporting a minimal inference of discriminatory motivation. Although plaintiff contends that she was treated differently than other Lucille Roberts members on the basis of her religion, the factual allegations only suggest that she was treated differently because she insisted on wearing an article of clothing that, according to defendant, was inappropriate gym attire.... Nowhere does the complaint allege that defendant selectively enforced its dress code against Jewish women.... There is no indication ... that claims grounded solely in disparate impact—and lacking any allegation of discriminatory intent—are cognizable under Title II.

Consumerist reports on the decision.

Meanwhile, JTA reported yesterday on a religious discrimination in employment lawsuit filed in New York state court.  Plaintiff Hadas Goldfarb, an Orthodox Jewish woman who was hired by New York Presbyterian Hospital as a paramedic, was dismissed when when she insisted on wearing a skirt instead of pants as required by the hospital's dress code.  Unlike the public accommodation section of the 1964 Civil Rights Act, the employment discrimination provisions (Title VII) require employers to reasonably accommodate an employee's religious exercise. [Thanks to Steven H. Sholk for the lead.]

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.