Female Genital Mutilation Case Expands

On June 21, federal authorities filed a Superseding Indictment (full text) adding two defendants in United States v. Nagarwala, (ED MI, 6/21/2017)-- the female genital mutilation case involving members of the Dawoodi Bohra Indian-Muslim community in the Detroit, Michigan area. (See prior posting).  According to the Detroit Free Press, the new defendants are Farida Arif and Fatema Dahodwala, two mothers who brought their daughters for the procedure to be performed.  This brings the total number of defendants to six. Prosecutors say there may have been up to 100 girls who were victims. The Free Press reports:

Lawyers involved in the case have said girls did not undergo female genital mutilation. They underwent a benign religious procedure, the lawyers have said.

“I am frankly appalled that the government would put these women through this,” said Dahodwala’s lawyer Margaret Sind Raben, who also has advised Arif’s family.

“Any mother who provided her child to Dr. Nagarwala or anyone else, for the purposes of this religious procedure, did so in absolute firm faith that this was required by their religion and that no permanent harm would come to their child,” Sind Raben said.

The new indictment charges various defendants with conspiracy to commit female genital mutilation, female genital mutilation, conspiracy to transport a minor with intent to engage in criminal sexual activity, conspiracy to obstruct an official proceeding, and making false statements to a federal officer.

UPDATE: Detroit Free Press June 24 reports on the controversy within the  Dawoodi Bohra sect between those who favor and those who oppose the practice of female genital cutting.

Israeli Court Says El Al May Not Ask Women To Change Seats To Accommodate Religious Concerns of Male Passengers

According to the New York Times, an Israeli court in Jerusalem yesterday ruled that El Al Airline's policy of asking women passengers to move seats in order to accommodate religious beliefs on modesty of ultra-Orthodox Jewish men violates Israel's anti-discrimination laws.  Requests for seating changes by male passengers who are concerned about inadvertent physical contact have delayed flights in recent years.  According to the Times:

In discussions outside the courtroom, the two sides in the case agreed on a judgment proposed by the judge, declaring that it is forbidden for a crew member to ask a passenger to change seats at the request of another passenger based on gender. El Al agreed to tell its cabin staff in writing about the prohibition within 45 days, and to provide training in how to deal with such situations within six months.

The court also awarded plaintiff, 83-year old Renee Rabinowitz, damages equivalent to $1800(US). [Thanks to Steven H. Sholk for the lead.]

New York Governor Signs Legislation To End Child Marriage

On June 20, New York Governor Andrew Cuomo signed A05524 raising the minimum age at which a person may marry to 17. (Full text and vote history).  Under the bill, parental consent and court approval is required to issue a marriage license to a person between 17 and 18 years of age. Prior to enactment of this legislation, with court approval an individual as young as 14 years could marry. In a press release on signing the bill, Governor Cuomo said: "This is a major step forward in our efforts to protect children and prevent forced marriages, and I am proud to sign this legislation that puts an end to child marriage in New York once and for all." PIX 11 reports on the new legislation.

Suit Fights Deportation Using RFRA

KHOU News reports on a lawsuit filed Monday in a Texas federal district court which argues that deporting an El Salvadoran who has been in the United States illegally for over a decade would violate the Religious Freedom Restoration Act. Juan Rodriguez's wife and three daughters are all U.S. citizens.  The lawsuit alleges that Rodriguez's Seventh-Day Adventist beliefs requiring the family to stay together would be violated by his deportation.

DOE Issues New Instructions On Transgender Students' Rights Under Title IX

As previously reported, in February the Trump Administration withdrew controversial Obama Administration's Guidance documents on rights of transgender students under Title IX.  The withdrawn documents called for transgender students to have access to sex-segregated bathrooms and locker rooms consistent with their gender identity.  On June 6 the Department of Education's Office of Civil Rights issued a memo (full text) setting out new "Instructions to the Field re Complaints Involving Transgender Students."  The new Memo emphasizes that withdrawal of the Obama Administration guidance documents "does not leave students without protections from discrimination, bullying or harassment."

The Memo provides that DOE may open an investigation in various situations, including cases in which gender-based harassment has created a hostile environment for a transgender student.  The Memo then sets out examples:

acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, such as refusing to use a transgender student’s preferred name or pronouns when the school uses preferred names for gender-conforming students or when the refusal is motivated by animus toward people who do not conform to sex stereotypes of a transgender student created a hostile environment....

Liberty Counsel, a conservative Christian advocacy organization, this week issued a press release criticizing DOE's new Memo, saying in part:

“Title IX does not require a school district or teacher to call students by false gender pronouns,” said Mat Staver, Founder and Chairman of Liberty Counsel. “Title IX is silent regarding the use of pronouns, and it cannot be a violation to refer to students by pronouns consistent with their actual sex. Requiring false pronoun usage by teachers is a compelled speech violation for teachers and compelling students to participate in a lie violates their right to free speech. I thought we had seen the last of this nonsense coming out of the Department of Education. I call upon Betsy DeVoss to end this new policy,” said Staver.

Student Has Standing Under Establishment Clause To Challenge School's Christian Fundraising

In American Humanist Association, Inc. v. Douglas County School District RE-1, (10th Cir, June 20, 2017), the U.S. 10th Circuit Court of Appeals held that one of the plaintiffs challenging a Colorado public school's Christian fundraising efforts has standing to bring an Establishment Clause challenge seeking retrospective relief. However the 10th Circuit agreed with the district court (see prior posting) that the other plaintiffs do not have standing. The appeals court said in part:

Although we have no doubt that plaintiffs are genuinely and fervently committed to righting what they view as an injustice, “a generalized grievance, no matter how sincere, is insufficient to confer standing.”.... Most of the plaintiffs have failed to demonstrate that they or their children experienced “personal and unwelcome contact with government-sponsored religious” activities.....  Further, they have not made out a case for municipal taxpayer standing because they have not shown an expenditure of municipal funds on the challenged activities.

The sole exception is plaintiff Jane Zoe. She contends that DCSD violated the Establishment Clause when school officials announced they were “partnering” with a Christian student group and solicited her and her son for donations to a “mission trip.” The district court held that because Zoe’s contacts with the challenged actions were not conspicuous or constant, she did not suffer an injury for standing purposes.  We find no support in our jurisprudence for the proposition that an injury must meet some threshold of pervasiveness to satisfy Article III.

American Humanist Association issued a press release announcing the decision.

Suit Challenges Anti-Semitism At San Francisco State University

In a press release yesterday, the Lawfare Project announced the filing of a lawsuit in a California federal district court on behalf of a group of San Francisco State University students and members of the local Jewish community seeking to end rising administration-sanctioned anti-Semitic activity on campus.  The complaint (full text) in Mandel v. Board of Trustees of the California State University, (ND CA, filed 6/19/2017), alleges that since the founding of the College of Ethnic Studies  in 1968 at SFSU, "a consistent pattern of anti-Jewish animus has emerged," culminating in threats, intimidation and disruption of the speech by Jerusalem Mayor Nir Barkat in 2016. The suit claims this conduct has violated plaintiffs' free speech and equal protection rights as well as their rights under Title VI of the 1964 Civil Rights Act.

9th Circuit Refuses To Enjoin California's Notice Requirements For Crisis Pregnancy Centers

In Mountain Right To Life, Inc. v. Becerra, (9th Cir., June 19, 2017), in a brief opinion, the U.S. 9th Circuit Court of Appeals affirmed a California federal district court's refusal to issue a preliminary injunction against enforcement of California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. (See prior posting).  The Act requires licensed crisis pregnancy centers to notify clients of programs offering free or low-cost abortions and requires unlicensed centers to notify clients that they are not state-licensed.  The court said:

The district court properly concluded that Plaintiffs cannot demonstrate a likelihood of success on the merits of their First Amendment free speech or free exercise claims.... The Act regulates licensed covered facilities’ professional speech, and is therefore subject to intermediate scrutiny, which it survives.... The notice requirement for unlicensed covered facilities survives any level of review.... And as to the free exercise claim, the Act is a neutral law of general applicability that survives rational basis review.

Latin Cross In City Park Violates Establishment Clause

In Kondrat'yev v. City of Pensacola, Florida, (ND FL, June 19, 2017), a clearly reluctant Florida federal district court judge held that a 34-foot concrete Latin Cross that has stood in the city's Bayview Park for decades violates the Establishment Clause.  The cross is the site for an annual Easter sunrise service as well as remembrance services on Veterans Day and Memorial Day.  The court laments:

... the historical record indicates that the Founding Fathers did not intend for the Establishment Clause to ban crosses and religious symbols from public property. Indeed, “the enlightened patriots who framed our constitution” ... would have most likely found this lawsuit absurd. And if I were deciding this case on a blank slate, I would agree and grant the plaintiffs no relief. But, alas, that is not what we have here.

The court concluded that  ACLU of Georgia v. Rabun County Chamber of Commerce, a 1983 case from the 11th Circuit Court of Appeals involving "this exact issue on virtually identical facts" required it to conclude that the Bayview Cross violates the Establishment clause under the Lemon test. The court concluded:

To be clear: None of this is to say that the cross would have to come down if the City sold or leased the area surrounding it to a private party or non-governmental entity (so long as the transfer was bona fide and not a subterfuge). Nor would there be a constitutional problem with worshipers using a temporary cross for their services in the park.... However, after about 75 years, the Bayview Cross can no longer stand as a permanent fixture on city-owned property.

The American Humanist Association issued a press release on the decision, with links to various pleadings in the case.

Supreme Court Invalidates Lanham Act Bar To Registration of Disparaging Trademarks

In Matal v. Tam, (Sup. Ct., June 19, 2017), the U.S. Supreme Court today held unconstitutional under the 1st Amendment's free speech protection the provision in the Lanham Trademark Act that prohibits registration of any trademark that

consists of ... immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute. (15 U. S. C. §1052(a)). 

The case generated three separate opinions, all ultimately concluding that the refusal to register "The Slants" as the name of an Asian-American rock group amounts to viewpoint discrimination. Five of the justices (Kennedy, Ginsburg, Sotomayor and Kagan, plus Thomas in a separate opinion) held that viewpoint discrimination always triggers heightened scrutiny.  Three others (Alito, Roberts and Breyer) said they need not reach the issue because the restriction does not pass even the lower hurdle for commercial speech. Justice Gorsuch did not participate.  New York Times reports on the decision.

The result of today's decision is that trademarks that disparage religious groups will also be able to be registered.  The rock group had argued that the Lanham Act language only applies to individuals, but in rejecting that, the Court (in a portion of the opinion joined by 7 justices) said:

[The statute] applies to the members of any group whose members share particular “beliefs,” such as political, ideological, and religious groups. It applies to marks that denigrate “institutions,” and on Tam’s reading, it also reaches “juristic” persons such as corporations, unions, and other unincorporated associations. See §1127. Thus, the clause is not limited to marks that disparage a particular natural person. 

Pakistan Court Upholds Reduction In Private Operators' Hajj Quotas

Again this year in Pakistan, Hajj quotas have become the subject of litigation.  In Hajj Organizers Association of Pakistan v. Federation of Pakistan, (High Ct. Sindh, June 16, 2017), the High Court of Sindh at Karachi rejected a challenge to the reduction in the quota of Private Hajj Sector organizers from 50% to 40% of Pakistan‟s allocated quota.  The change was made so that an increased number of government sponsored lower-cost Hajj trips could be provided. The court said in part:

The plaintiffs have no justification to snatch lawful right of common people to perform Hajj at economical Hajj package as compared to expensive Hajj packages introduced and announced by the plaintiffs.

Express Tribune reports on the court's decision.

Utah Imam On No-Fly List Allowed To Return After Suit Filed

A lawsuit was filed on Friday in federal district court in Utah seeking an emergency Temporary Restraining Order or Preliminary Injunction to require authorities to allow Yussuf Awadir Abdi, imam of a Salt Lake City mosque, to return to the United States from Kenya.  According to the motion and brief in support (full text) in Abdi v. McCabe, (D UT, filed 6/16/2017), Abdi had traveled to Kenya to bring his wife and children to the United States. His wife and his 2 non-U.S. citizen children had recetly been approved for visas. When Abdi attempted to board his plane in Kenya, he learned that he had been placed on the "No Fly List" while in Kenya. Previously he had been on the Selectee List-- which still allowed him to fly after special screening. The suit argues that the No Fly List violates Abdi's constitutionally protected right of movement protected by the Due Process Clause. Fox13 News reports on the lawsuit.

Subsequent to the filing of the lawsuit, American authorities relented and allowed Abdi, who has been an American citizen since 2010-- to return to the United States on a Qatar Airlines flight which arrived Saturday. (Salt Lake Tribune).

Canada's Parliament Adds Transgender Protections To Discrimination and Hate Crime Laws

Canada's Parliament last week gave final passage to Bill C-16 (full text). The bill adds "gender identity or expression" to Canada's Human Rights Act and to the Hate Propaganda provision of Canada's Criminal code.  The bill comes into force when it receives Royal Consent.  Christian Post reports on the bill and responses to it.  Canada's Justice Minister says:

The purpose of this legislation is to ensure that everyone can live according to their gender identity and express their gender as they choose. It will protect people from discrimination, hate propaganda and hate crimes.

A spokesman for Canada's Campaign Life Coalition, however, contends:

Mark my words, this law will not be used as some sort of 'shield' to defend vulnerable transsexuals, but rather as a weapon with which to bludgeon people of faith and free-thinking Canadians who refuse to deny truth.

Recent Articles of Interest

From SSRN:

• Gábor Halmai, Varieties of State-Church Relations and Religious Freedom through Three Case Studies, (Michigan State Law Review, Vol. 2017, No. 2, 2017).
• Ahmed Elkahwagy, The Sacred Text between the American Constitution and the Religious Discourse in Egypt, (May 25, 2017).
• Brian D. Earp & Robert Darby, Circumcision, Sexual Experience, and Harm, (University of Pennsylvania Journal of International Law, Vol. 37, No. 2, 2017).
• Steven Douglas Smith, The Pagan City, the Christian City, and the Secular City, (San Diego Legal Studies Paper No. 17-290 (2017)).
• Steven Douglas Smith, Coming Home? The Imminent Immanent City, (San Diego Legal Studies Paper No. 17-291 (2017)).
• Jeffrey A. Parness, Marriage Equality, Parentage (In)Equality, (32 Wisconsin Journal of Law Gender and Society __ (Fall 2017) Forthcoming).
• James Fishman, Rethinking Riley: Applying Commensurate and Intermediate Scrutiny Standards to Judicial Evaluation of Charitable Solicitation Regulation, (June 1, 2017).

Recent Prisoner Free Exercise Cases

In Barner v. Pientka, 2017 Pa. Commw. Unpub. LEXIS 422 (Commw. Ct. PA, June 12, 2017), a Pennsylvania appeals court affirmed the dismissal of a suit for damages by a Rastafarian inmate who was required to cut his hair.

In Hoffman v. Lassen Adult Detention Facility, 2017 U.S. Dist. LEXIS 90083 (ED CA, June 12, 2017), a California federal magistrate judge recommended that a Jewish inmate be allowed to proceed with his 1st Amendment complaint that a jail commander denied his request for a kosher diet. On internal review the kosher diet was approved. Various other claims were recommended for dismissal.

In McElroy v. Clarke, 2017 U.S. Dist. LEXIS 91185 (WD VA, June 14, 2017), a Virginia federal district court dismissed a Nation of Islam inmate's complaint over his suspension from, and refusal of reinstatement to, the Common fare diet.

In Ervin v. Davis, 2017 U.S. Dist. LEXIS 91433 (SD OH, June 14, 2017), an Ohio federal magistrate judge recommended dismissing a suit by a Messianic Jewish inmate complaining of initial denial of kosher meal accommodation.

In Harris v. Cooper, 2017 U.S. Dist. LEXIS 91637 (ND CA, June 14, 2017), a California federal magistrate judge dismissed with leave to amend an inmate's claim that he was denied parole because he is a Muslim, and that religious items were confiscated from his cell. Plaintiff's initial parole grant was rescinded by the governor, and after a successful habeas petition his parole was again suspended.

In Cooley v. LeBlanc, 2017 U.S. Dist. LEXIS 90733 (WD LA, June 13, 2017, a Louisiana federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 91670, April 24, 2017) and dismissed a Rastafarian inmate's challenge to grooming regulations that require all male inmates to receive a closely cropped haircut.

In Smith v. Goss, 2017 U.S. Dist. LEXIS 91675 (ED CA, June 14, 2017), a California federal magistrate judge dismissed, with leave to amend, a series of complaints by an inmate, including that he was retaliated against by denial of his religious meals.

In Epp v. Frakes, 2017 U.S. Dist. LEXIS 92236 (D NE, June 15, 2017), a Nebraska federal district court allowed a Buddhist inmate to move ahead on his claim for prospective relief growing out of his complaint that his religious diet has been suspended as a disciplinary measure at least 4 times and he is not permitted to obtain food items from outside sources.

ICE Roundup of Chaldean Christians Leads To Lawsuit

Last week ACLU of Michigan sued to stop the deportation of 114 Iraqi nationals, many of whom are Chaldean Christians, who were arrested in immigration raids in metropolitan Detroit. Some of the Iraqis arrested were Shiite Muslims and converts to Christianity, while raids in other states arrested Kurdish and Yezidi Iraqis. According to the complaint (full text) in Hamama v. Adducci, (ED MI, filed 6/15/2017):

U.S. law prohibits the removal of individuals to countries where they would face a likelihood of persecution or torture. Yet despite the clear danger that many of these individuals face in Iraq, ICE is attempting to deport them based on outstanding removal orders that do not take account of intervening changed circumstances which should entitle them to protection. For example, many of the Petitioners are Chaldean Christians, who are widely recognized as targets of brutal persecution in Iraq.... Nonetheless, Chaldeans whose order of removal was entered years ago are now facing removal to Iraq as if nothing has changed, and without any inquiry into the dangers they would currently face.

ACLU in a press release  announcing the filing of the lawsuit says:

The arrests come in the wake of a recent deal between Iraq and the US that removes Iraq from the list of Muslim-majority nations whose citizens could be prohibited from coming to the US under an Executive Order signed by President Donald Trump. In exchange for removal from that list, Iraq has agreed to accept Iraqi nationals sent back to the country by US immigration officials, a sudden reversal of a long-standing policy against repatriation.

As reported yesterday by the Washington Post, evangelist Franklin Graham last week urged the President to look further into the issue in light of Trump's promise earlier this year that he would give priority to persecuted Christians.

Nebraska Cuts Back On Religious Accommodation of Inmates

As reported by the Lincoln Journal Star, on June 2, the Nebraska Department of Correctional Services issued a Memo (full text) cutting back on its accommodation of religious practices of inmates in a manner that appears to particularly impact Native American practitioners.  According to the Memo, many Native American practitioners also practice Catholicism at the same time, requesting a Native American Bandanna and a Rosary.  Under the Memo, an inmate must declare a single religion in order to receive religious property (or declare he is spiritual but has no religious tradition). As of November 1, inmate purchases of religious items will be limited to the 26 items listed in an Appendix to the Memo. Inmates will be required to store their religious property in a 6 quart plastic storage box that they must purchase for $1.65. The state will end its policy of providing $50 per year to each accommodated religion, and will no longer provide rock and wood for sweat lodge ceremonies. Rock and wood will be available only through outside donations. Last year the state reduced from 2 hours to 1 hour per week the time Native American inmates can spend in sweat lodge ceremonies.

Environmental Impact Challenge To Dakota Access Pipeline Is Partially Successful

While in March a D.C. federal district court rejected a RFRA challenge by the Cheyenne River Sioux Tribe to the Dakota Access Pipeline project (see prior posting), the same court has now held that the Army Corps of Engineers must reconsider portions of its environmental analysis of the project.  In a 91-page opinion in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, (D DC, June 14, 2017), court held:

Although the Corps substantially complied with NEPA in many areas, the Court agrees that it did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.

To remedy those violations, the Corps will have to reconsider those sections of its environmental analysis upon remand by the Court. Whether Dakota Access must cease pipeline operations during that remand presents a separate question of the appropriate remedy, which will be the subject of further briefing.

Red Green and Blue reports on the decision.

Air Force JAG Commissions First Hijabi Lawyer

The U.S. Air Force JAG Corps has for the first time selected a Muslim woman who wears a hijab for a commission in the Judge Advocate General Corps. According to yesterday's UT News and an earlier report in The Arab American, recent University of Toledo law graduate Maysaa Ouza believes that she is the first hijabi to apply to the Air Force JAG Corps.  The Air Force issued its latest version of Policy Directive 52-2 on accommodation of religious practices in Feb. 2016.

European Court Finds Bulgaria Violated Convention In Refusing To Recognize Ahmadiyya Group

In Metodiev and Others v. Bulgaria, (ECHR, June 15, 2017), (full text of opinion in French), the European Court of Human Rights in a Chamber Judgment held that Bulgaria had violated the European Convention on Human Rights Art. 9 (freedom of religion) in refusing to register the new Ahmadiyya Muslim Community as a denomination under Bulgaria's Religions Act.  According to the Court's press release summarizing the decision:

the sole reason given by the Supreme Court of Cassation for the refusal was the lack of a sufficiently precise and clear indication of the beliefs and rites of the Ahmadi religion in the association’s constitution. The domestic court had concluded that the constitution did not meet the statutory requirements of the Religions Act, which sought to distinguish between the various religions and to avoid confrontation between religious communities....

The Court took the view that the approach adopted by the Court of Cassation would lead in practice to refusing registration of any new religious association having the same doctrine as an existing religion. That approach could result in allowing the existence of only one religious association for each religious movement and in requiring all followers to adhere to it.

A Chamber Judgment may be appealed to the Grand Chamber.

Staffing Agency Settles EEOC Suit Over Accommodation of Rastafarian

HospitalityStaff, a company that places employees in central Florida's hotel industry, has settled a religious discrimination claim filed against it by the EEOC. According to EEOC's June 14 press release:

The EEOC's lawsuit charged that HospitalityStaff violated religious discrimination law by failing to provide a reasonable accommodation to Courtnay B. Joseph, a Rastafarian, when it required him to cut his dreadlocks to comply with its client's grooming standards in order to keep his position at an Orlando-area hotel. The EEOC said that HospitalityStaff took Joseph off his assignment and never reassigned him.

Under the settlement, the company will pay Joseph $30,000 in damages, will adopt a clear policy on religious and disability accommodation, will provide training to managerial and HR personnel, and will report to the EEOC for 3 years.

Fugitive FLDS Leader Arrested

As reported by KUTV, the FBI in Salt Lake City announced the arrest in South Dakota on Wednesday evening of fugitive FLDS leader Lyle Jeffs. Last June Jeffs fled while under house arrest awaiting trial on charges of conspiracy to commit food stamp fraud and conspiracy to commit money laundering. (See prior posting.)  Lyle is the brother of Warren Jeffs, the now-jailed former leader of the polygamous FLDS sect.

Fired Legislative Staffer Can Move Ahead With Suit Alleging Use of State Funds To Promote Church Facility

In Ali v. McClinton, (ED PA, June 14, 2017), a Pennsylvania federal district court refused to dismiss on 11th Amendment grounds a suit against a member of the Pennsylvania House of Representatives in her personal capacity. The court permitted fired constituent services staffer El Shafiyq Asad Ali to move ahead on his 1st Amendment Establishment Clause claim and one of his Pennsylvania Whistleblower Law claims.  Ali alleges that Rep. Joanna McClinton fired him after he objected to McClinton's asking him to organize an event, to be paid for from state funds, at a Philadelphia Housing Authority site. The event was designed to promote a nearby facility that the Open Door Mission True Light Church planned to open.  Rep. McClinton is a minister at the Church.  The court however did dismiss Ali's religious discrimination claims, certain of his Whistleblower Act claims and all of his "official capacity" claims against McClinton and the Pennsylvania House of Representatives.

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.