District Court Broadens Those Still Allowed Entry Under Trump's Travel Ban [UPDATED]

In State of Hawai'i v. Trump, (D HI, July 13, 2017), a Hawaii federal district court held that the government has too narrowly interpreted the U.S. Supreme Court's order that precludes enforcement of President Trump's second travel ban executive order against foreign nationals who have a bona fide relationship with a person or entity in the United States.  The district court held that qualifying close familial relationships include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.  It also held that a refugee seeking entry has a bona fide relationship with a U.S. entity when a resettlement agency has given the refugee assurance that it will provide, or arrange for, reception and placement services to that refugee.  A similar relationship exists for those in the Lautenberg Program for refugee admissions. New York Times reports on the decision.

UPDATE:  As reported by SCOTUSblog, on July 14, the Trump Administration asked the Supreme Court to clarify that the district court's decision is an incorrect interpretation of the Supreme Court's order.  The Supreme Court ordered plaintiffs in the case to file a response to the government's motion for clarification by noon on July 18.

Michigan Outlaws FGM In Package of Bills Signed By Governor

On July 11, Michigan Governor Rick Snyder signed a series of bills dealing with female genital mutilation. As summarized by the governor's press release:

The bill package amends various public acts to prohibit and prosecute those who perform female genital mutilation. Specifically, the bills prohibit performing genital mutilation, create criminal penalties for offenders, provide sanctions against healthcare licensees, require increased public education surrounding the topic and extend criminal and civil statutes of limitations.

One of the bills, HB 4636, outlaws FGM and provides:

It is not a defense to prosecution under this section that the person on whom the operation is performed, or any other person, believes that the operation is required as a matter of custom or ritual, or that the person on whom the operation is performed, or that person’s parent or guardian, consented to the operation.

HB 4642 requires the Department of Health and Human Services to:

Develop and administer an educational and outreach program that, at a minimum, informs the public, including members of new immigrant populations to this state that commonly practice female genital mutilation and health care providers, of the health risks and emotional trauma inflicted by the practice of female genital mutilation and the criminal penalties for female genital mutilation.

Vatican-Approved Article Criticizes Conservative Catholic Support of U.S. Evangelical Political Agenda

The Washington Post today reports that an article in the influential Jesuit magazine La Civilta Cattolica-- whose content is approved by the Vatican Secretariat of State-- is critical of conservative Catholic support for the evangelical political agenda in the United States. The article is authored by the journal's editor and by a Presbyterian pastor who edits of the Argentine edition of the Vatican newspaper, L’Osservatore Romano.  The article (full text in Italian) whose title translates to Evangelical Fundamentalism and Catholic Integralism: A Surprising Ecumenism, is summarize by the Post:

The Rev. Antonio Spadaro, editor of the influential Jesuit journal La Civilta Cattolica, said a shared desire for political influence between “evangelical fundamentalists” and some Catholics has inspired an “ecumenism of conflict” that demonizes opponents and promotes a “theocratic type of state.”

Spadaro also took aim at conservative religious support for President Donald Trump, accusing activists of promoting a “xenophobic and Islamophobic vision that wants walls and purifying deportations.”...

Spadaro specifically criticized the far-right Catholic American media organization ChurchMilitant.com. Spadaro said the media outlet framed the presidential election as a “spiritual war” and Trump’s ascent to the presidency as “a divine election.”

Spadaro’s critique also appears aimed in part at America’s Catholic bishops, who have fought for religious exemptions from gay marriage laws and other measures church leaders consider immoral, and have often characterized those with opposing views as wishing to persecute Christians.

AG Sessions Speaks To Conservative Christian Advocacy Group

On July 11, Attorney General Jeff Sessions spoke to a meeting sponsored by Alliance Defending Freedom, a conservative Christian advocacy organization.  The full text of his remarks, which focused on religious liberty, was published by The Federalist yesterday.  Here are some excerpts:

The challenges our nation faces today concerning our historic First Amendment right to the “free exercise” of our faith have become acute. I believe that this recent election was significantly impacted by this concern and that this motivated many voters. President Trump made a promise that was heard. In substance, he said he respected people of faith and he promised to protect them in the free exercise of their faith. This promise was well received.

.... America has never thought itself to be a theocracy. Our founders, at least the most articulate of them, believed our government existed as a protector of religious rights of Americans that were essential to being a created human being.

The government did not exist to promote religious doctrine nor to take sides in religious disputes.... The government’s role was to provide the great secular structure that would protect the rights of all citizens to fulfill their duty to relate to God as their conscience dictated and to guarantee the citizen’s right to exercise that faith.....

The president has ... directed me to issue guidance on how to apply federal religious liberty protections. The department is finalizing this guidance, and I will soon issue it.

The guidance will also help agencies follow the Religious Freedom Restoration Act. Congress enacted RFRA so that, if the federal government imposes a burden on somebody’s religious practice, it had better have a compelling reason....

Under this administration, religious Americans will be treated neither as an afterthought nor as a problem to be managed. The federal government will actively find ways to accommodate people of all faiths. The protections enshrined in the Constitution and our laws protect all Americans, including when we work together, speak in the public square, and when we interact with our government. We don’t waive our constitutional rights when we participate fully in public life and civic society.

This administration, and the upcoming guidance, will be animated by that same American view that has led us for 241 years: that every American has a right to believe, worship, and exercise their faith in the public square....

Novel Facts Do Not Assure Qualified Immunity In Prisoner Suit

In Parkell v. Senato, (3rd Cir.,  July 11, 2017), the U.S. 3rd Circuit court of Appeals vacated a Delaware federal district court's grant of qualified immunity to prison officials who refused an inmate's request for a kosher diet.  The court said in part:

We do not doubt that Parkell’s belief system—which he characterizes as “Jewish/Wicca”—is novel. But “officials can still be on notice that their conduct violates established law even in novel factual circumstances.”...

AP reports on the decision.

Priest's Defamation Suit Against Diocese Survives Ecclesiastical Abstention Claim

According to the Palm Beach Post, in a July 11 four-page opinion a Florida state trial court judge refused to dismiss a defamation suit brought by Catholic priest Rev. John Gallagher against his former diocese.  In response to Gallagher's claim that the diocese attempted to cover up sexual abuse by a visiting priest, the diocese posted responses on its website and in a letter read at all masses in the diocese.  The diocese (which contends that it reported the abuse to law enforcement authorities immediately) called Gallagher a liar who needed professional assistance.  The court held that the defamation claim "can be assessed using neutral principles of law and without resolving a church controversy."  It is expected that the diocese will appeal, arguing that the dispute involves church discipline and internal policies for handling complaints. (See prior related posting.)

Trump Meets With Supportive Evangelical Leaders

CNN reports that President Trump on Monday met in the Oval Office with a group of evangelical religious leaders.  These leaders comprise his Evangelical Advisory Board. Attendees included Johnnie Moore, a former senior vice president at Liberty University, Jack Graham, the pastor of the Prestonwood Baptist Church in Plano, Texas, and former Minnesota representative Michele Bachmann.  Vice President Pence also attended the meeting.  Photos posted by participants in the meeting show Trump with his head bowed in prayer surrounded by the religious leaders, some of whom have their hands on his shoulders.  Johnnie Moore told CNN:

We similarly prayed for President Obama but it's different with President Trump.  When we are praying for President Trump, we are praying within the context of a real relationship, of true friendship.

In yesterday's White House Press Briefing (full text) by Deputy Press Secretary Sarah Sanders, the following exchange about the President's meeting with faith leaders took place:

 Q    On the meeting with the Faith Advisory Board, someone tweeted out a picture of the meeting the other day, and there was a -- the picture showed people, faith leaders laying their hands on the President as they were praying.  And I think there was an inference or implication from that photo coverage that they were praying for him because of a political crisis.  Could you explain a little bit more about how the meeting came about and what it meant to the President to have them there?

MS. SANDERS:  The idea that somebody would only pray when they're in crisis I think makes you miss the entire point of what prayer is about.  You should do that every day, and that's -- I think you can do that in the best of times and the worst of times.  So I think it would be ridiculous to suggest the only time you might do that is in a time of crisis.

Q    How did the meeting come about?  And what did it mean to the President?

MS. SANDERS:  It’s his Faith Advisory Board, and they meet from time to time to speak about issues that are important to that community.

Court Bars Removal of Iraqi Christians and Shiites Until They Get Judicial Hearing

In Hamama v. Adducci, (ED MI, July 11, 2017), a Michigan federal district court issued an injunction barring the enforcement of removal orders against 1,444 Iraqis-- mostly Chaldean, but also other Christians and Shiite Muslims-- until they are given a judicial hearing on their claims that they are entitled to relief from removal because of their status as persecuted religious minorities in Iraq. The injunction extends a temporary suspension of their removal granted by the court last month. (See prior posting.)

While a federal statute-- 8 USC Sec. 1252(g)-- removes federal district court jurisdiction to hear any claim on behalf of an alien arising from action by the Attorney General to execute a removal order against the alien, the court held that enforcing that provision here would be an unconstitutional suspension of the right to habeas corpus. The court said in part:

The mechanism provided by the REAL ID Act for judicial review of removal orders — filing motions to reopen proceedings in immigration courts and subsequent review in the courts of appeals — does not take into account the compelling confluence of grave, real-world circumstances present in our case. This makes relegation to the immigration courts, without a stay from this court in place, an alternative that is neither adequate nor effective.

Without a stay in place, deportations will begin immediately, which may mean a death sentence for some deportees.... Beginning in August 2014, ISIS began carrying out large-scale killings.... Religious minorities were particularly vulnerable to these atrocities, with Christians being given the horrific choice to “pay a protection tax, convert to Islam, or be killed.”... 

While death is certainly the most egregious outcome deportees face, other persecution would also compromise their ability to pursue their removal challenges from foreign shores.... ISIS routinely commits arbitrary executions, torture, and sexual enslavement against religious minorities and those affiliated with the United States....

Detroit Free Press reports on the decision.

UAE Company Stops Payments, Saying Its Own Islamic Bonds Are No Longer Shariah-Compliant

According to a report yesterday in Bonds & Notes, an Abu Dhabi based company, Dana Gas, announced last month that it is ceasing payments on its 4-year sukuk that are to mature in October.  The company says it is taking this action because the bonds are no longer Shariah-compliant. Investors say that the payment stoppage on the $700 million (US) issue was really a way to avoid default, and they believe courts will not uphold the company's action.  Apparently there are no centralized Shariah boards to approve Islamic finance deal structures in Arab countries, leaving open the possibility of issuers making their own rulings as here.

Suit Seeking U.S. Edit of Qur'an Dismissed As Frivolous

In Levay v. United States, (ED MI, July 11, 2017), a Michigan federal district court, adopting a magistrate's recommendation (LEXIS link), dismissed as frivolous a suit by a Jewish plaintiff  seeking a formal declaration that "Koranic Sharia Law" is incompatible with U.S. constitutional law. The suit also asks for the court to direct Congress to outlaw certain passages from the Qur'an, to issues a federally approved and edited version of the Qur'an, to withdraw tax exempt status from mosques that do not adopt this new version, and to establish a National Islamic Registry Program. The court said in part:

Levay’s suit seeks relief for the threat of violence that Islamic extremism poses to him and his community. But he does not allege injury to him personally, or an imminent, particularized threat of future injury.... Even if Levay did allege an actionable injury, the Court does not have the authority to direct Congress to legislate on an issue, much less vanquish the specter of religiously-motivated violence.... And, more fundamentally, Levay’s requests for a state-issued Koran, a national registry of Muslims, and financial sanctions for rogue mosques offend basic constitutional principles..... Levay does not have standing to bring suit and requests remedies which violate the Constitution.

UPDATE: In Levay v. United States, 2017 U.S. Dist. LEXIS 130138 (ED MI, Aug. 16, 2017), the court denied a motion by the plaintiff to amend the judgment.

First Canadian Prosecution For Selling Mislabeled Kosher Food

The Canadian Food Inspection Agency last week announced that it has successfully prosecuted the first case brought before a provincial court involving misrepresentation of a kosher food product. Section B.01.049 of the Food and Drug Regulations prohibits selling food that does not meet the kashruth requirements applicable to it.  On June 22, Creation Foods Company plead guilty to two counts of violating the Food and Drugs Act, and was fined $25,000. Using a forged kosher certificate, the company sold cheese that did not meet requirements of kashrut to two Jewish summer overnight camps for young people.  The Forward has more details on the case.

Court Issues Detailed Instructions For Church Board Election

In Rock Church, Inc. v. Bristulf, (NY Cty. Sup. Ct., June 28, 2017), a New York trial court ordered a special meeting for an election of a church board of trustees, setting out detailed instructions for conducting the election.  The order came after three earlier court orders, each of which ordered a special meeting to elect a board, failed to result in a successful election. Part of the detailed instructions provided:

As the meeting is not the Annual Business Meeting, Section 5.7 of the By-laws (allowing all members the "right to express their opinion on any matter relating to the Church at the Annual Business Meeting") shall not apply. The only business to be conducted at the meeting shall be the voting to elect the Board of Trustees and such vote shall be conducted without prior discussion.

Recent Articles of Interest

From SSRN:

• Andrew Koppelman, How Could Religious Liberty Be a Human Right?, (Int. J. Const. Law, Forthcoming).
• Yitshak Cohen, Metahalakhic Principles in R. Meir Simcha Hacohen of Dvinsk's Oeuvre, (June 15, 2017).
• Perry Dane, Playacting: A D'Var Torah on Parshat Hukkat, (July 1, 2017).
• Michael Asimow, Jewish Lawyers on Television, (Journal of the Oxford Centre for Socio-Legal Studies, Iss. 2, p. 14, 2017).
• Dr. Sayeeda Anju, Informative Discussion on Women's Rights Ensured in CEDAW and Islamic Law, (June 30, 2017).

From SmartCILP:

Symposium: The Implications of Obergefell v. Hodges for Families, Faith and the Future. Articles by John Finnis, Lynn D. Wardle, Richard S. Myers, Charles J. Russo, Lynne Marie Kohm, Jason S. Carroll, Walter Schumm, J. David Bleich, William C. Duncan, student Sandra Alcaide. 14 Ave Maria Law Review 1-162 (2016).

Recent Prisoner Free Exercise Cases

In Simmons v. Atkins, 2017 U.S. Dist. LEXIS 103707 (ED CA, July 5, 2017), a California federal magistrate judge dismissed with leave to amend a complaint by a Native American inmate that he is denied weekly attendance at the sweat lodge, a properly trained medicine man or spiritual adviser, and material to make religious tools and artifacts.

In Saif'ullah v. Albritton, 2017 U.S. Dist. LEXIS 102438 (ND CA, June 30, 2017), a California federal court dismissed claims of ten of the 11 plaintiffs for failure to exhaust administrative remedies. The remaining plaintiff was permitted to move ahead on his complaint that Muslim inmates are only allowed to pray in groups of more than 5 in the open day room once per day, while similar restrictions are not applied to Christian and Jewish inmates.

In Monson v. Steward, 2017 U.S. Dist. LEXIS 104036 (D OR, July 6, 2017), an Oregon federal magistrate judge dismissed a suit by a Rastafarian inmate who complained that he was (until filing the lawsuit) denied a kosher diet.

In Hosannah v. Nassau County Criminal Supreme Court Sergeant Officer(s), 2017 U.S. Dist. LEXIS 104652 (ED NY, July 5, 2017), a New York federal magistrate judge recommended that an inmate be allowed to file an amended complaint against proper defendants asserting his claim that he is not allowed to attend Jewish religious services because of his escape risk status. UPDATE: The court adopted the magistrate's recommendations in Hosannah v. Sposato, 2017 U.S. Dist. LEXIS 117962 (ED NY, July 26, 2017).

4th Circuit: OK For College To Downgrade Applicant Whose Interview Discussion of Religion Was Inappropriate

In Buxton v. Kurtinitis, (4th Cir., July 7, 2017), the 4th Circuit rejected free speech and Establishment Clause challenges brought by a rejected applicant seeking admission to a Maryland community college radiation therapy program.  The applicant was graded down on his interview score because he brought up the subject of religion often during the interview.  The court concluded:

... the Free Speech Clause does not protect speech expressed in an admissions interview from admissions consequences in a competitive process. Although Buxton argues that this conclusion will open the door to a wide range of discrimination ..., this fear is misplaced. That the Free Speech Clause is not implicated in this narrow context does not open the door to a parade of discriminatory horribles. Several constitutional protections against discrimination remain in full force even in a competitive application and interview process; the Free Speech Clause is simply not one of them.

The court also rejected the applicant's claim that his rejection that was based in part on his discussion of religion violates the Establishment Clause, saying in part:

... it was not Buxton’s religious belief that caused his low interview score, but rather his choice of topic in the interview room that informed the committee’s determination that he lacked interpersonal skills. This determination was “driven in part by a secular purpose,” ... and thus satisfies the first prong of Lemon.

3rd Circuit Rejects Religious Practice Defenses By Rabbis In Divorce Kidnapping Prosecutions

In United States v. Stimler, (3d Cir., July 7, 2017), the U.S. 3rd Circuit Court of Appeals upheld the convictions of three Orthodox Jewish rabbis for kidnapping related offenses.  The rabbis were involved in Jewish religious court (beth din) proceedings which would authorize forcible actions against a recalcitrant husband to convince him to provide his civilly divorced wife with a religious divorce document (a get).  They worked with "muscle men" who would be paid to kidnap and torture the targeted husband. Among the issues raised on appeal were two that focused explicitly on religious freedom claims.

The rabbis asserted that because it is a religious commandment to help a civilly divorced wife obtain a get, it violates their rights under the Religious Freedom Restoration Act (RFRA) to prosecute them for their role in doing so.  The appeals court rejected that argument, concluding that while the prosecution "undoubtedly constituted a burden on their sincerely held religious beliefs," it was not a "substantial" burden, saying in part:

the District Court properly analyzed whether the burden was “substantial” by looking to acceptable alternative means of religious practice that remained available to the defendants. Here, none of the defendants argue that they are unable to participate in the mitzvah of liberating agunot without engaging in kidnapping; as the District Court noted, “it is unclear whether all non-violent methods were exhausted before the alleged kidnappings took place here.” The defendants do not challenge this determination on appeal.... 

The court added that even if there were a "substantial" burden, "the government has a compelling interest in uniform application of laws about violent crimes and that no other effective means of such uniformity existed."

The appeals court also rejected the argument of one of the defendants that his joinder with the other two amounted to a separate RFRA violation.

The appeals court also upheld the district court's refusal to admit evidence about Jewish religious law and the religious motivation for the defendants' actions.  The federal kidnapping statute requires that the kidnapping be committed for some reward or benefit. The court held that the religious benefit of performing a mitzvah (commandment) is sufficient to come within the statute. It also apparently agreed with the district court's conclusion that a religious motivation does not negate criminal intent.  Additionally, the court rejected defendants' argument that the husbands, by practicing Orthodox Judaism and signing a marriage contract, implicitly agreed to the use of force that might be authorized by a Jewish religious court. Finally, on the evidentiary issue, the court said:

We further agree with the District Court that any marginal relevance that the religious evidence may have had was substantially outweighed by the prejudicial impact it would have had on the trial. Suggesting that the defendants acted for a religious purpose might have given rise to the potential for jury nullification, which we have held is substantially prejudicial.

NJ Advance Media reports on some of the other issues covered by the decision. [Thanks to Tom Rutledge for being the first reader to send me the lead.]

Cert. Petition Filed In Ten Commandments Case

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in City of Bloomfield v. Felix.  In the case, a 3-judge panel of the 10th Circuit found that a Ten Commandments monument on a city hall lawn violates the Establishment Clause. (See prior posting.) The full 10th Circuit, over the dissent of two judges, denied en banc review.  (See prior posting.)  ADF issued a press release announcing the petition seeking Supreme Court review.

Settlement Reached In Suit Over University Service Learning Credit For Religious Activity

A settlement has been reached in a lawsuit against the University of Wisconsin Eau Claire (see prior posting) over its refusal to count religious teaching to children as a permissible type of community service to satisfy university students' service learning requirement. Credit was give for various sorts of non-religious teaching.  Under the settlement agreement (full text) in Liebl v. Schmidt, the University agreed to remove language from its Service Learning Guidebook and from as University Senate motion that had disallowed credit for "time spent directly involved in promoting religious doctrine, proselytizing or worship." The University also agreed to pay plaintiffs' attorneys fees of $15,000.  Plaintiffs filed a Notice of Voluntary Dismissal with the Wisconsin federal district court on July 6.  ADF issued a press release announcing the settlement.

Tribes Sue to Stop End of Protection For Yellowstone Grizzly Bears

Last month 17 Native American tribes, clans and individuals filed suit challenging the U.S. Fish and Wildlife Service's decision to lift protections for grizzly bears in the Yellowstone National Park area.  According to AP:

The Native American plaintiffs argue that trophy hunting for grizzly bears goes against their religious and spiritual beliefs. The lawsuit filed June 30 asks a federal judge to rule that the U.S. Fish and Wildlife Service must consider the Native Americans' beliefs and consult adequately with them before removing grizzly protections that have been in place since 1975....

Basing a legal challenge of an Endangered Species Act decision on religious beliefs and inadequate tribal consultation has not been tried before, said the plaintiffs' attorney, Jeff Rasmussen.

In 9th Circuit Church Loses Suit Against Loud Music Festival

In Amistad Christiana Church v. Life Is Beautiful, LLC, (9th Cir., July 3, 2017), the U.S. 9th Circuit Court of Appeals rejected a claim by a Christian church that a music festival put on by Life is Beautiful, LLC with a permit from the City of Las Vegas was so intrusive that it violated their free exercise and free speech rights.  The court found no state action, concluding that Life is Beautiful is a private entity not acting under color of state law.  The city's special event permit regulated permissible sound levels for the festival.  And the city is immune from civil liability for suits based on the exercise of its discretionary functions.

Scotland Investigates Upsurge In Prisoner Requests For Kosher Meals

The Forward reported yesterday that in Scotland, the Inspectorate of Prisons has begun an investigation into why there has been a huge upsurge in inmates requesting kosher meals.  The increase has added $313,000 per year to the cost of operating Scottish prisons.  According to the news report:

Inmates are believed to have started asking for kosher food after watching “Orange is the New Black,” the American television show in which a character named Cindy Hayes, played by Adrienne Moore, converts to Judaism to get “better quality food,” as she explains it in the series.

At one Edinburgh prison, 111 prisoners are being served kosher meals, and it is thought that hundreds of prisoners across the United Kingdom have applied to change their religion to Judaism since the episode aired in 2015.

EU Ban On State Economic Subsidies Invalidates Some Applications of Tax Exemption Treaty with Vatican

Article 107(1) of the Treaty on the Functioning of the European Union prohibits EU states from granting aid that "distorts or threatens to distort competition [between Member States] by favouring certain undertakings or the production of certain goods..."  In Congregación de Escuelas Pías Provincia Betania v. Ayuntamiento de Getafe, (CJEU, June 27, 2017), the Court of Justice of the European Union held that this provision may invalidate some applications of a treaty between Spain and the Vatican exempting from taxes the property in Spain of Catholic dioceses, parishes and religious orders.  At issue is a municipal tax that would apply to the renovation and extension of a building at a school operated by a Catholic order. According to the Court, the ban on favoring certain "undertakings" applies only to "economic activity."  To the extent that the building is used for educational activities subsidized by the Spanish government, the religious order is not engaged "economic activity" and the EU Treaty does not bar a tax exemption.  However

it would seem ... the Congregación’s educational activities that are not financed by the Spanish State, corresponding to early-years teaching, extracurricular activities and post-compulsory education, meet all the criteria ... of the present judgment for classification as ‘economic activities’....

Law & Religion UK has more on the decision.

European Court Upholds Defamation Judgment For False Charges of Anti-Muslim Statements

In Case of Medzlis Islamske Zajednice Brcko and Others v. Bosnia and Herzegovina, (ECHR, June 27, 2017), the European Court of Human Rights Grand Chamber by a vote of 11-6 held that the free expression rights of a Muslim religious community and three non-governmental organizations representing ethnic Bosnian Muslims were not infringed by a defamation judgment entered against them.  The suit grew out of a letter sent to authorities of the Brčko District's multi-ethnic radio station objecting to the appointment of "Ms. M.S." as director of the station.  Among other things, the letter claimed that M.S.:

(1) stated in an interview ... commenting on the destruction of mosques in Brčko, that Muslims were not a people ..., that they did not possess culture and that, accordingly, destroying mosques could not be seen as destruction of cultural monuments,

(2) as an employee of the BD radio demonstratively tore to pieces on the radio’s premises ... the calendar showing the schedule of religious services during the month of Ramadan...

These statements were inaccurate.  The majority concluded:

the authorities of the respondent State struck a fair balance between the applicants’ interest in free speech, on the one hand, and M.S.’s interest in protection of her reputation on the other hand, thus acting within their margin of appreciation....

The Court's press release on the decision summarizes the Court's reasoning.

Welfare Fraud Arrests Trigger Anti-Semitic Incidents

The Asbury Park Press reported yesterday that the welfare fraud arrests last week of 14 Orthodox Jewish residents (including a congregational rabbi) in Lakewood, New Jersey has triggered a rash of anti-Semitism.  Anti-Jewish comments appeared on Facebook and other social media, as well as in flyers distributed around Lakewood and in a white sheet hung over a Holocaust memorial. A majority of Lakewood's 100,000 residents are Orthodox Jews.  Lakewood Police are investigating the incidents.

Court Rules Church Factions Must Share Church Building

In Mullins v. Wicker, (OH App., June 22, 2017), an Ohio appellate court in a 2-1 decision, agreed with a trial court's decision in a case in which two competing factions of the Little Ettie Old Regular Baptist Church in Beaver, Ohio both claimed ownership of the church's property.  The trial court had held that there are two congregations each equally entitled to church property and issued an injunction specifying how the two factions would share use of the church building.  The appeals court majority affirmed.

Judge Harsha dissenting argued that the court should have applied the ecclesiastical abstention doctrine and dismissed the case for want of jurisdiction, even though neither party raised the jurisdictional issue. He argued that the dispute here is essentially over church doctrine.  He added that even if the ecclesiastical abstention doctrine does not apply, the trial court abused its discretion in finding that there are two competing congregations equally entitled to ownership of church property.

Recent Articles and Books of Interest

From SSRN:

• Joseph William Singer, Property and Sovereignty Imbricated: Why Religion Is Not an Excuse to Discriminate in Public Accommodations, (18 Theoretical Inquiries in Law 521 (2017)).
• Steven Douglas Smith, Against 'Civil Rights' Simplism: How Not to Accommodate Competing Legal Commitments, (San Diego Legal Studies Paper No. 17-294 (2017)).
• David Pozen, The Abortion Closet (with a Note on Rules and Standards), (Columbia Journal of Gender and Law, Forthcoming).
• Ian Murray, The Taming of the Charitable Shrew: State Roll Back of Charity Tax Concessions, (27(1) Public Law Review 54 (2016)).

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

• Neil James Foster, Protecting Religious Freedom in Australia through Legislative Balancing Clauses, (June 14, 2017).
• Lama Abu-Odeh, Who Cares About Islamic Law?, (Al-Jumhuriya, Forthcoming).
• Mohamed Abdelaal, Extreme Secularism vs. Religious Radicalism: The Case of the French Burkini, (23 ILSA Journal of International & Comparative Law (2017)).
• Muhammed Tawfiq Ladan, Rights to Freedom of Religious Belief and Expression, (June 27, 2017).
• Kathryn Chan, Identifying the Institutional Religious Freedom Claimant, (95 Cdn Bar Review (Forthcoming)).
• Kai Möller, Ritual Male Circumcision and Parental Authority, (LSE Legal Studies Working Paper No. 14/2017).
• Tamar Kricheli‐Katz, Haggai Porat & Yuval Feldman, Are All Types of Discrimination Created Equal?, (June 26, 2017).

Recent and Forthcoming Books:

• Jenna Weissman Joselit, Set in Stone-- America's Embrace of the Ten Commandments, (Oxford Univ. Press, May 2017), author interview by The Forward.
• Michael J. Broyde, Sharia Tribunals, Rabbinical Courts, and Christian Panels-- Religious Arbitration in America and the West, (Oxford Univ. Press, June 2017).
• John Corvino, Ryan T. Anderson & Sherif Girgis, Debating Religious Liberty and Discrimination, (Oxford Univ. Press, June 2017).
• Ronit Y. Stahl, Enlisting Faith-- How the Military Chaplaincy Shaped Religion and State in Modern America, (Harvard Univ. Press,Nov. 2017).
• Joseph Kip Kosek (ed.), American Religion, American Politics-- An Anthology, (Yale Univ. Press, May 2017).
• Spencer W. McBride, Pulpit and Nation-- Clergymen and the Politics of Revolutionary America, (University of Virginia Press, Jan. 2017).

Trump Administration Modifies List of Grants For Combating Violent Extremism

As reported by CNN, the Department of Homeland Security on June 23 announced 26 organizations that have been approved for awards under the Countering Violent Extremism Grant Program. Using new criteria, the list eliminates 11 of the 31 organizations that had initially been approved by the Obama Administration for grants, and adds new awardees, mostly law enforcement organizations.  Among those eliminated are Life After Hate, a group whose purpose is to rehabilitate former neo-Nazis and other extremists. Also eliminated from funding is the Muslim Public Affairs Council which works to see that mosques are not used by terrorists for recruitment.

Recent Prisoner Free Exercise Cases

In Rials v. Avalos, 2017 U.S. Dist. LEXIS 97650 (ND CA, June 23, 2017), a California federal district court allowed an inmate to move ahead with free exercise and equal protection challenges to disciplinary action taken against him for possessing two religious photos outside of his cell.

In Nordgaarden v. Baca, 2017 U.S. Dist. LEXIS 97763 (D NV, June 23, 2017), a Nevada federal magistrate judge recommended refusing to dismiss a claim by a Jewish inmate that an officer threatened to throw him in the hole, confiscated his meal and placed him in a holding cell because he was leaving the culinary to eat his Passover meal, which he contends is religiously required.

In Nance v. Miser, (9th Cir., June 29, 2017), the 9th Circuit held that a ban on a Muslim inmate's purchasing scented oils for use in weekly prayers substantially burdens his exercise of religion. and is not justified under RLUIPA. It remanded for further proceedings a claim regarding beard length.

In Medina v. Kuykendall, 2017 U.S. Dist. LEXIS 98980 (ED PA, June 27, 2017), a Pennsylvania federal district court dismissed with leave to amend in inmate's complaint that the County Prison denied him religious materials and kosher and halal meals.

In McCann v. Texas, 2017 U.S. Dist. LEXIS 99400 (SD TX, June 27, 2017), a Texas federal district court dismissed a habeas corpus petition in which plaintiff challenged his conviction for giving false identifying information to the police, alleging that it violates his free exercise rights to require him to list his birth date as the date of delivery rather than the date of conception.

In Boyd v. Etchebehere, 2017 U.S. Dist. LEXIS 99467 (ED CA, June 27, 2017), a California federal magistrate judge recommended dismissing a complaint by a Muslim inmate that he was denied participation in the Ramadan meal schedule for a week during which he was enrolled in the vegetarian diet rather than the Religious Meat Alternative Program.

In Docherty v. Cape May County, 2017 U.S. Dist. LEXIS 100709 (D NJ, June 29, 2017), a New Jersey federal district court allowed Muslim inmates to move ahead against governmental defendants with their complaint that they are allowed to congregate for Friday prayers only in an area which is dirty and foul smelling.

In Rush v. Malin, 2017 U.S. Dist. LEXIS 101285 (SD NY, June 29, 2017), a New York federal district court permitted an inmate to move ahead with claims that Shi'a Muslims were denied Jumu'ah services for 2 months, a separate Ashura observance, and weekly classes, a separate account, and a fundraiser. The court dismissed certain other claims.

In Taft v. California Department of Corrections, 2017 U.S. Dist. LEXIS 101467 (ED CA, June 28, 2017), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that he was forced to remove his yarmulke without a security search protocol and that a correctional officer displayed anti-Semitic behavior toward him.

Michigan Governor Vetoes Bill Requiring Pro-Life License Plate

On June 30, Michigan Governor Rick Snyder vetoed SB 163 (full text), a bill that would have required the state to issue a fund-raising "Choose Life" license plate, with proceeds to be distributed to crisis pregnancy centers and similar pro-life non-profits.  In his Veto Letter (full text), the Governor said in part:

... SB 163 is not about a license plate; it's about the State of Michigan making a political statement. And that statement arouses strong emotional reaction that divides the residents of this state.

Detroit Free Press reports on the governor's action and response to it.

Germany's Bundestag Approves Same-Sex Marriage

As reported by BBC and the New York Times, on Friday Germany's Bundestag passed legislation permitting same-sex marriage.  Currently only civil unions are allowed for same-sex couples.  The vote was 393-226 with 4 abstentions.  Chancellor Angela Merkel, while voting against the change, told members of her governing coalition to vote on the issue according to their consciences. The legislation changes Germany's law to read: "Marriage is entered into for life by two people of different or the same sex."  The legislation must still be approved by the Bundesrat (the upper house of parliament) and signed by Germany's president, but neither of those steps appears to be in doubt.

Texas Supreme Court Keeps Life In Challenge To City's Same-Sex Couple Benefits

In a complex opinion, the Texas Supreme court has given two Houston taxpayer-voters another chance to challenge the legality of the city's extending spousal benefits to same-sex married couples.  At issue in Pidgeon v. Turner, (TX Sup. Ct., June 30, 2017), is the instructions on remand given by a state appeals court in reversing a trial court's temporary injunction against the city's action.  Plaintiffs' suit is based on the contention that Texas' Defense of Marriage Act still has residual effect and that the state appeals court incorrectly indicated to the trial court that the 5th Circuit's DeLeon decision invalidating the state's DOMA is binding on it.  The Texas Supreme Court agreed that the appeals court was incorrect in telling the trial court to proceed "consistent with" DeLeon:

We agree with Pidgeon that De Leon does not bind the trial court in this case and the court of appeals should not have instructed the trial court to conduct further proceedings “consistent with” De Leon. Penrod Drilling, 868 S.W.2d at 296.17 That does not mean, however, that the trial court should not consider De Leon when resolving Pidgeon’s claims. Fifth Circuit decisions, particularly those regarding federal constitutional questions, can certainly be helpful and may be persuasive for Texas trial courts. Moreover, De Leon could potentially affect the relief the trial court might provide on remand, since De Leon has enjoined the Governor from enforcing the Texas DOMAs and the State of Texas is thus providing benefits to state employees’ same-sex spouses. The trial court should certainly proceed on remand “in light of” De Leon, but it is not required to proceed “consistent with” it.

The Texas Supreme Court refused to reach another argument by plaintiffs that they have standing to seek a clawback of payments the city made to same-sex couples before the U.S. Supreme Court's Obergefell decision.  Plaintiff's cited the U.S. Supreme Court's Hobby Lobby decision, contending that as taxpayers they have been injured by the payments "because they are devout Christians who have been compelled by the mayor’s unlawful edict to subsidize homosexual relationships that they regard as immoral and sinful."  NPR reports on the decision.

Nominees Submitted For Head of Civil Rights Division and For EEOC Seat

Earlier this week, the White House announced President Trump's nomination of  Eric S. Dreiband to head the Civil Rights Division of the Department of Justice. As reported in an earlier Washington Post background piece, Dreiband, who is a partner in the Jones Day law firm, among other things has a master’s degree in theological studies (with a concentration in ethics and public policy) from Harvard University.  In the George W. Bush administration, Dreiband served as general counsel of the EEOC.  In 2015, he was one of the attorneys who represented Abercrombie & Fitch in its Supreme Court fight over the need to grant religious accommodation to a Muslim woman who wears a headscarf for religious reasons.  He was also one of the attorneys on the brief at the Court of Appeals level representing the Roman Catholic Archbishop of Washington in its 2014 challenge to the accommodation for religious non-profits who object to the Obamacare contraceptive coverage mandate.

Also, this week, the White House announced it has nominated Janet Dhillon for a seat on the Equal Employment Opportunity Commission. According to Law.com, Dhillon is currently general counsel for Burlington Stores, Inc.

New Hate Crime Data Released By DOJ

Yesterday the Justice Department's Bureau of Justice Statistics released (press release) a report on Hate Crime Victimization, 2004-2015. The data taken from its National Crime Victimization Survey showed that  on average 250,000 people per year were hate crime victims, and until 2015 a majority of these were not reported to police.  During 2011-2015, religious bias accounted for 17% of the perceived hate crimes. Racial bias accounted for 48%.

Church Sues Over Zoning Ruling On Use of Building For Christian School

A suit was filed this week in a Virginia federal district court challenging Spotsylvania County officials' contention that a Baptist church must obtain a special use permit in order for the education wing of the church to house an independent Christian high school whose mission is to provide classical education rooted in the tradition of Catholic teaching. The church says the school is one of its ministries and does not require further zoning approval. The complaint (full text) in Zoan Baptist Church v. Spotsylvania County, (ED VA, filed 6/28/2017) alleges that the county ordinance and the way it has been enforced infringes the church's rights under RLUIPA, as well as under the Establishment and Free Exercise clauses. Plaintiffs have also filed a Brief in Support of their motion for equitable relief. (Full text of brief).

Preliminary Injunction Refused: Settlement In Mosque Zoning Dispute Stands

In Youkhanna v. City of Sterling Heights, (ED MI, June 28, 2017), a Michigan federal district court refused to issue a preliminary injunction to prevent enforcement of a consent judgment entered into by the city of Sterling Heights.  The consent judgment allows the American Islamic Community Center to construct a mosque on land in the city.  Plaintiffs live near the mosque site.  Some are Chaldean Christians form Iraq and one is an Assyrian Christian from Syria.  They allege that their religious groups in Iraq and Syria have been subjected to violence by ISIS.  The court held that plaintiffs had not shown a likelihood of success on their constitutional and statutory claims regarding the validity of the consent judgment and the conduct of the meeting at which it was approved. (See prior related posting.)

Diocese and Parishes May Be Single Employer For Purposes of Title VII

In Clement v. Roman Catholic Diocese of Erie, (WD PA, June 16, 2017), a Pennsylvania federal magistrate judge refused to dismiss a Title VII sexual hostile work environment claim against two Catholic parishes and the Catholic Diocese of Erie.  Plaintiff served as Facilitator of Religious Education Programs in three parishes. In the case, the Diocese contended that plaintiff was employed only by the parishes, and the parishes claimed that individually each does not employ at least 15 individuals, the minimum number required before Title VII applies.  The court concluded that at this early stage of the litigation, evidence of the dual chain of command over defendant's position and the intermingling of parish and Diocese business affairs raises a reasonable expectation that discovery could reveal sufficient evidence to treat the Diocese and parishes as a single employer.  GoErie reports on the decision.

No Taxpayer Standing To Challenge North Carolina Conscience Law Excusing Magistrates From Performing Marriages

In Ansley v. Warren, (4th Cir., June 28, 2017), the U.S. 4th Circuit Court of Appeals dismissed on standing grounds an Establishment Clause challenge to North Carolina's Senate Bill 2 which allows state magistrates who have religious objections to same-sex marriage to recuse themselves from performing all marriages.  (See prior posting.)  The court said in part:

The outcome here is in no way a comment on same-sex marriage as a matter of social policy. The case before us is far more technical—whether plaintiffs, simply by virtue of their status as state taxpayers, have alleged a personal, particularized injury for the purposes of Article III standing. Based on a century of Supreme Court precedent, we conclude that they have not.

Asheville Citizen-Times reports on the decision.

Man Destroys New 10 Commandments Monument At Arkansas Capitol

As previously reported, on Tuesday a 6-foot tall granite replica of the Ten Commandments was installed on the grounds of the Arkansas State Capitol.  According to Arkansas Online, less than 24 hours later a 32-year old Arkansas man drove a vehicle into the monument, destroying it. Police have arrested Michael Tate Reed, charging him with defacing objects of public respect, trespassing on Capitol grounds and first-degree criminal mischief.  Reed apparently live streamed his actions on Facebook.  Apparently Reed is the same person who 3 years ago similarly destroyed a Ten Commandments monument on the Oklahoma statehouse grounds. (See prior posting.) State Senator Jason Rapert who sponsored the Arkansas legislation authorizing the monument says that a new monument has already been ordered.

Michigan Supreme Court Holds Ecclesiastical Abstention Doctrine Is Not Jurisdictional

In Winkler v. Marist Fathers of Detroit, Inc., (MI Sup. Ct., June 27, 2017), the Michigan Supreme Court held that the ecclesiastical abstention doctrine:

requires a case-specific inquiry that informs how a court must adjudicate certain claims within its subject matter jurisdiction; it does not determine whether the court has such jurisdiction in the first place.

The court explained:

What matters ...  is whether the actual adjudication of a particular legal claim would require the resolution of ecclesiastical questions....

With that understanding, the Supreme Court remanded the case to the Court of Appeals for it to decide whether Michigan's Persons With Disabilities Civil Rights Act applies to religious schools.  At issue in the case is a Catholic high school's denial of admission to a student who contends that the denial was because of her learning disability.

Judge Denies New Counsel to Murder Defendant Claiming Religious Conflict With Attorney

Wichita Eagle reported yesterday that a Kansas trial court judge has denied the request by a defendant in a murder case who wants new counsel.  Defendant Rachael Hilyard, charged with decapitating Micki Davis, the mother of her ex-boyfriend, says she has an extreme religious conflict with her attorney.  She says her lawyer will not get her a psychological evaluation.  In a letter to the court, Hilyard said in part:

The victim in my case was a Jehovas Witness. I think he is one as well.  I am Catholic & this was a crime of God. I am requesting a change of counsel..... On a different case, this would be irrelevant. However, I am Catholic & and the head of a Jehovas Witness was found in my kitchen sink. I think she may have been a high ranking member in this religion.

Davis' family says she was not a Jehovah's Witness.

In Unusual Church Autonomy Dispute, Catholic School Can Require Immunization of All Students

In a case with an unusual twist, a Florida state appeals court yesterday upheld the policy of a Catholic school requiring immunization of all students, even when a parent has religious objections to immunization.  In Flynn v. Estevez, (FL App., June 27, 2017), the appeals court held that under the church autonomy doctrine, a civil court cannot require a religious school to comply with the provision in Florida law that allows parents to object on religious grounds to immunization of their children. It said in part:

...[T]he application of the statutory exemption to the Diocese is problematic due to the intramural ecclesiastical kerfuffle that underlies this dispute. The Diocese has a religiously-based immunization policy with which one of its members disagrees; Mr. Flynn seeks the power of the State to compel the Diocese to depart from its point-of-view and admit his non-immunized son. But doing so would further his own religious views at the expense of the Diocese’s on the topic of immunizations. We are convinced that a secular court should not be making the judgment as to which side’s religious view of immunization is to be respected.... Unlike other church autonomy cases, the unique feature of this one is that both parties assert Catholic religious doctrine as the basis for their litigation positions, which cautions against a secular court wading into the squabble.... 

Mr. Flynn claims the Diocese’s vaccination policy must be actually rooted in a specific religion doctrine, tenet, or text, and that its “general concern about the ‘common good’” is a religiously ineffectual basis for invoking the abstention doctrine. Though the trial court wasn’t presented with the specific religious basis for the Diocese’s new policy, we find no fault in its conclusion that “immunizations of children attending Catholic schools is an issue of faith, discipline, and Catholicism [that] can only properly be determined by the church and not by the civil courts.” Courts are in no more of a position to compel the Diocese to provide a sufficient quantum of passable proof that its view of immunization is consistent with the Catholic faith than to do so as to Mr. Flynn’s personal views of Catholic doctrine on the very same subject.

News Service of Florida reports on the decision.

Florida Enacts Student Religious Liberty Law

On June 12, Florida Governor Rick Scott signed SB 436, the Florida Student and
School Personnel Religious Liberties Act (full text) (legislative history). The law becomes effective July 1.  As summarized by the Florida Department of Education:

The bill requires school districts to treat a student’s voluntary expression of a religious viewpoint on an otherwise permissible subject the same as the district treats a secular viewpoint.... The bill also requires districts to allow students to wear religious clothing, accessories and jewelry to the extent secular items with symbols or messages are also allowed.

The bill requires that students be allowed to pray or participate in religious activities or gatherings before, during and after school, to the same extent secular activities or clubs are allowed.... The bill requires school districts to give religious groups the same access to school facilities and ability to announce or advertise meetings as given to secular groups.

Finally, the bill requires all school districts to adopt a policy creating a limited public forum for student speakers at school events where students speak publicly and cannot discriminate against voluntary religious expression by a student on an otherwise permissible subject....

Ten Commandments Monument Erected On Arkansas Statehouse Grounds

NPR News reports that yesterday a 6-foot tall granite replica of the Ten Commandments was installed on the grounds of the Arkansas State Capitol.  In 2015, the state legislature enacted legislation authorizing the monument, to be financed privately. (See prior posting.)  State Senator Jason Rapert, the sponsor of the legislation, told reporters yesterday:

We have a beautiful Capitol grounds but we did not have a monument that actually honored the historical moral foundation of law. And today we have now, through the support of people all over the country, mostly from Arkansas, been able to erect this monument at zero taxpayer expense.

The ACLU says it will file suit to get the monument removed.

Supreme Court Remands School Aid Cases For Reconsideration In Light of Trinity Lutheran Decision

The U.S. Supreme Court yesterday, in light of its decision this week in Trinity Lutheran Church of Columbia, Inc. v. Comer, sent back to the lower courts for reconsideration school aid cases from Colorado and New Mexico.  All the cases remanded involved reliance on state Blaine amendments to invalidate aid to religious schools.  In three consolidated cases from Colorado, the Court granted certiorari, vacated the judgments below, and remanded to the Supreme Court of Colorado for further consideration. The Colorado cases are Doyle v. Taxpayers for Public Education, (Docket No. 15-556), Douglas City School District v. Taxpayers for Public Education,  (Docket No. 15-557), and Colorado State Board of Education v. Taxpayers for Public Education, (Docket No. 15-558). (June 27, 2017 Order List).  In the cases, the Colorado Supreme Court struck down Douglas County's elaborate Choice Scholarship Pilot Program. (See prior posting.)

In New Mexico Association of Nonpublic Schools v. Moses, (Docket No. 15-1409), the Supreme Court also granted certiorari, vacated the judgment and remanded to the Supreme Court of New Mexico for further consideration. In the case, the New Mexico Supreme Court struck down a New Mexico statute that allows the state to lend secular textbooks to private and parochial school students. (See prior posting.)

British Regulator Issues Guidance On Religious Beliefs In Pharmacy Practice

Britain's General Pharmaceutical Council, the regulator for pharmacists, pharmacy technicians and registered pharmacies in England, Scotland and Wales, this month issued a Guidance Document for pharmacy professionals titled In Practice: Guidance on Religion, Personal Values and Beliefs. Here is an excerpt from the document:

In some cases, a pharmacy professional’s religion, personal values or beliefs may influence their day-to-day practice, particularly whether they feel able to provide certain services.... 

Pharmacy professionals have the right to practise in line with their religion, personal values or beliefs as long as they act in accordance with equalities and human rights law and make sure that person-centred care is not compromised....

If a pharmacy professional is unwilling to provide a certain service, they should take steps to make sure the person asking for care is at the centre of their decision-making, so they can access the service they need in a timely manner and without hindrance.

[Thanks to Law & Religion UK for the lead.]

Court Says Kaporos Ceremony Not Covered By Unfair Competition Law

In Animal Protection and Rescue League, Inc. v. Chabad of Irvine, (CA Super. Ct., June 23, 2017) a California trial court ruled that a challenge by an animal rights group to the Jewish pre-Yom Kippur ritual of kaporos should be dismissed.   The suit alleged violations of California's Unfair Competition Law which prohibits unlawful business practices, contending that the manner in which chickens used in the ritual were kept, slaughtered and disposed of violates various state and local laws.  The court held however that the kaporos ceremony is not a "business act or business practice," explaining:

Chabad-Irvine's purchase of chickens for the participants to use in the ... Kaporos ritual does not transform its conduct from that of a synagogue meeting ... the religious and spiritual needs of the community to that of a commercial enterprise....

... [M]any religious services or ceremonies result in donations being solicited and made (e.g. when offering plates or baskets are passed among a congregation during a religious service...). But that does not convert those religious activities, rituals and observances into business practices.

First Liberty issued a press release announcing the decision and also provides links to the pleadings and court orders in the case. Orange County Register reported on the decision.

Georgia Supreme Court Dismisses On Standing Grounds Challenge To Tax Credit Scholarship Program

In Gaddy v. Georgia Department of Revenue, (GA Sup. Ct., June 26, 2017), the Georgia Supreme Court held that plaintiffs in the case lack standing as taxpayers or otherwise to challenge the constitutionality of Georgia's education tax credit program.  Under the program, taxpayers receive a dollar-for-dollar tax credit (up to specified limits) for contributions to student scholarship organizations set up to provide scholarships to students in private schools, both secular and religious.  The suit contended that the program violates the ban in the Georgia Constitution on providing public funds to aid any church, religious denomination or sectarian institution. The suit also alleged violations of other state constitutional and statutory provisions. Atlanta Journal Constitution reports on the decision.

Supreme Court: Same-Sex Spouses Must Get Equal Treatment In Birth Certificates

In Pavan v. Smith, (Sup. Ct., June 26, 2017), the U.S. Supreme Court today granted certiorari and summarily (i.e. without further briefing or oral argument) reversed a decision of the Arkansas Supreme Court on the rights of same-sex married couples. The Supreme Court held that "Obergefell’s commitment to provide same-sex couples 'the constellation of benefits that the States have linked to marriage'" means that the state must apply the same rules to same-sex and opposite-sex married couples in the issuance of birth certificates. Under Arkansas law, the male spouse of a woman who gives birth appeared on a birth certificate, but the female spouse of a woman who gives birth did not.  The Supreme Court struck this differentiation down, saying that in Arkansas birth certificates are more than just a marker of biological parentage.

Justice Gorsuch, in an opinion joined by Justices Thomas and Alito, dissented saying that this is an inappropriate case for summary reversal.

Supreme Court Holds Denial of Playground Resurfacing Grant To Church Violates Free Exercise Clause [UPDATED]

In a 7-2 decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, (Sup. Ct., June 26, 2017), the U.S. Supreme Court today held that the First Amendment free exercise rights of Trinity Lutheran Church were violated when the state of Missouri denied the church's Child Learning Center a grant for resurfacing of its playground with scrap tire material.  The state had relied on Missouri Constitution's Blaine Amendment which prohibits financial assistance directly to any church.

Chief Justice Roberts delivered the opinion of the court which was joined in full by Justices Kennedy, Alito and Kagan.  Justices Thomas and Gorsuch joined Roberts' opinion except for a footnote that attempted to limit the holding to the facts of this case. In his opinion for the Court, Roberts said in part:

In recent years, when this Court has rejected free exercise challenges, the laws in question have been neutral and generally applicable without regard to religion. We have been careful to distinguish such laws from those that single out the religious for disfavored treatment.....

The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.....

Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character.... Trinity Lutheran is a member of the community too, and the State’s decision to exclude it for purposes of this public program must withstand the strictest scrutiny....

Justice Thomas filed a separate opinion concurring in part in which Justice Gorsuch joined. Justice Gorsuch filed a separate opinion concurring in part in which Justice Thomas joined.  Both opinions agreed largely with Justice Roberts, but would have been even stronger in support of the free exercise conclusion.

Justice Sotomayor filed a 27-page dissenting opinion which was joined by Justice Ginsburg, saying in part:

To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.....

The constitutional provisions of thirty-nine States—all but invalidated today—the weighty interests they protect, and the history they draw on deserve more than this judicial brush aside.

Washington Post reports on the decision.

Supreme Court Grants Review and Partially Lifts Injunctions Against Trump's Travel Ban

The U.S. Supreme Court today in a per curiam opinion in Trump v. International Refugee Assistance Project, (Sup. Ct., June 26, 2017), granted certiorari and partially lifted the outstanding injunctions against enforcement of President Trump's second travel ban Executive Order.  Under the Court's decision, the 90-day ban on entry of nationals from 6 Muslim-majority nations:

may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2.

The Court gave illustrations of the line it was drawing:

For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member ... clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.

The Court similarly partially lifted the injunction against enforcement of the suspension of refugee admissions and the lowering of the cap on refugees, saying:

An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded. As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, ... the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.....

.... Section 6(a) may not be enforced against an individualseeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States. Nor may §6(b); that is, such a person may not be excluded pursuant to §6(b), even if the 50,000- person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect.

The Court also ordered that oral arguments in the case be heard during the first session of the October term of the Court. Justice Thomas, joined by Justices Alito and Gorsuch, in a separate opinion dissenting in part said that they would have stayed the preliminary injunctions in full and predicted extensive litigation over what constitutes a bona fide relationship. Washington Post reports on the decision.

Cert. Granted In Dispute Over Refusal To Create Cake For Same-Sex Wedding

The U.S. Supreme Court today granted review in Masterpiece Cake Shop v. Colorado Civil Rights Commission, (Docket No. 16-111, cert. granted  6/26/2017). (Order List).  In the case, a Colorado Court of Appeals held that a bakery owner's free exercise and free speech rights were not infringed when the Colorado Civil Rights Commission found that the refusal to create a wedding cake for a same-sex couple violates Colorado's public accommodation law  (See prior posting.)  The Colorado Supreme Court denied review. (See prior posting.)  The SCOTUSblog case page has links to briefs in the case.

Israel's Cabinet Suspends Agreement On Egalitarian Prayer Space At Western Wall

As reported by Haaretz and the Jerusalem Post, Israel's Cabinet on Sunday voted to suspend the agreement with Judaism's Reform and Conservative movements and the Women of the Wall movement approved by the Cabinet last year to construct a separate prayer space at the Western Wall for egalitarian prayer. Implementation of the agreement had already been long delayed.  (See prior related posting.)  Now negotiations will begin on a new plan acceptable to the ultra-Orthodox political parties.  Yesterday's move came after pressure from the ultra-Orthodox members Prime Minister Netanyahu's coalition. At the same time, the Cabinet approved continued construction to improve the Robinson's Arch area in the southern part of the Western Wall complex away from the main plaza.This area is currently used for mixed-gender prayer.  With yesterday's decision, attention now moves to the High Court of Justice where a lawsuit filed previously seeks to require the government to provide egalitarian prayer space at the Western Wall.  Some Cabinet members blamed the filing of that lawsuit for yesterday's Cabinet action, saying it undercut the possibility of informal resolution.

Union for Reform Judaism president Rabbi Rick Jacobs reacted strongly to the Cabinet's decision, calling it "an unconscionable insult to the majority of world Jewry."

Recent Articles of Interest

From SSRN:

• Bruce Ryder, Physicians' Rights to Conscientious Objection, (in Benjamin L. Berger and Richard Moon eds, Religion and the Exercise of Public Authority 127-147 (Oxford: Hart Publishing, 2016)).
• Nicholas Aroney & Matthew Turnour, Charities are the New Constitutional Law Frontier, (Melbourne University Law Review, Vol. 41, 2017).
• Steven Douglas Smith, Culture Wars as Pagan Counterrevolution, (San Diego Legal Studies Paper No. 17-293, 2017).
• June Carbone, 'Blue' Morality and the Legitimacy of the State — Ed Rubin's Soul, Self, and Society: The New Morality and the Modern State, (Law and Social Inquiry, Vol. 42, No. 2, 2017).
• Louis W. Hensler, The Legal Concept of ‘Natural Affection’: Natural Law or Natural Selection?, (June 21, 2017).
• Vebjørn Innset Hurum, Full-Face Concealment Ban in Public Places in Europe: How the European Court of Human Rights Has Failed to Do Its Job, (Penn Statim: The Online Companion to the Penn State Law Review, 2017).
• Joshua J. Craddock, The Case for Complicity-Based Religious Accommodations, (June 25, 2017).
• Hershey H. Friedman, The Wit and Sarcasm of the Talmudic Sage Ulla, (June 21, 2017).

Recent Prisoner Free Exercise Cases

In Ghailani v. Sessions, (10th Cir., June 21, 2017), the 10th Circuit allowed a Muslim inmate in federal prison after a terrorism conviction to move ahead with his complaint under RFRA that he is prohibited from attending Jumu'ah prayers because of the prison's housing conditions.

In Brandon v. Royce, 2017 U.S. Dist. LEXIS 94870 (S NY, June 20, 2017), a New York federal district court allowed a Muslim inmate to move ahead with his 1st Amendment claim growing out of the denial to him of the prison's special Eid al-Adha meal.

In Ross v. LNU Director, 2017 U.S. Dist. LEXIS 95232 (D KA, June 21, 2017), a Kansas federal district court denied a motion to reconsider the dismissal of an inmate's complaint of delay in responding to his requests for Ramadan meal accommodations.

In Shabazz v. Giurbino, 2017 U.S. Dist. LEXIS 95949 (ED CA, June 21, 2017), a California federal magistrate judge recommended dismissing on qualified immunity and mootness grounds an inmate's suit complaining that serving Muslim inmates vegetarian breakfasts and lunches does not meet his religious dietary requirements.

In Carter v. Uhlik, 2017 U.S. Dist. LEXIS 95964 (ED CA, June 21, 2017), a California federal magistrate judge recommended denying an inmate's motion to rescind a settlement agreement in his free exercise case. Plaintiff complained of a subsequent unrelated delay in accommodating his religious dietary needs.

In Padilla v. Kernan, 2017 U.S. Dist. LEXIS 95993 (SD CA, June 20, 2017), a California federal district court allowed an inmate to move ahead with his suit complaining of denial of kosher meals for more than a year.

In Njos v. Carney, 2017 U.S. Dist. LEXIS 96533 (MD PA, June 21, 2017), a Pennsylvania federal magistrate judge recommended dismissing on qualified immunity and mootness grounds a Jewish inmate's suit over the number of ounces of grape juice he needed for his Sabbath meal religious observance.

3d Circuit: Dismissal of Prisoner's RLUIPA Suit At Pleading Stage Was Improper

In Robinson v. Houtzdale, (3d Cir., June 19, 2017), the U.S. 3rd Circuit Court of Appeals held that the trial court should not have dismissed at the pleading stage a RLUIPA suit by a Christian inmate who objected that the prison's Sex Offenders Therapeutic Community program burdens his religious exercise by requiring him to "confess" to a therapist or counselor.  Plaintiff contended that the Bible does not permit him to confess sins to anyone except God. The court said that the threshold question under RLUIPA is whether a prison practice has substantially burdened an inmate's practice of his religion.  It went on:

we conclude that the Magistrate Judge went too far by analyzing the “truth” of Robinson's beliefs when she determined, based on the pleadings alone, that the sexual offender program did not impose a substantial burden because it did not ask Robinson “to confess in any religious sense.” ... [A]t the pleading stage, we are required under RLUIPA to accept as true Robinson’s sincerely held belief that any acknowledgement of guilt is a religious “confession"....

... [W]hile the District Court may well conclude after considering evidence or testimony on the subject that SCI-Houtzdale’s interest in its sex offenders taking responsibility for their actions as part of its therapeutic program is a “compelling interest” and that there is no less restrictive means for Robinson to meet the goals of the sex offender program, it cannot do so on the basis of the pleadings alone. That is because RLUIPA does not permit “unquestioning deference” to prison administrators....

Turkey Removes Evolution From High School Curriculum

The New York Times reported yesterday that in Turkey the Education Ministry has decided to eliminate the teaching of evolution to ninth graders, removing the chapter on the topic from ninth grade text books because it is controversial.  A government spokesman said:

Our students don’t have the necessary scientific background and information-based context needed to comprehend [the debate about evolution].

Critics see this as the latest step by President Erdogan's government to move away from the secular character of the state and give more recognition to concerns of religious Muslims.

In Mosque's Factional Dispute, Ohio Court Orders Dissolution and Reincorporation

In State of Ohio ex. rel. DeWine v. Omar Ibn El Khattab Mosque, Inc., (OH App., June 22, 2017), an Ohio appeals court exercising its original jurisdiction in quo warranto actions granted the state attorney general a writ allowing him to pursue the dissolution of the non-profit corporation which operates a Columbus, Ohio mosque. The court further granted the attorney general authority to oversee the creation of a successor entity to take over the mosque.  Two factions had both claimed to represent the mosque, and were involved in five years of litigation over which of the successive boards is the legitimate governing body of the mosque. The court agreed with a magistrate who initially heard the case, saying:

Omar Mosque, Inc. has violated many statutory requirements of [the Ohio Non-Profit Corporation Law] ... in failing to maintain a record of its members from the period of 2007 through 2011... [and] the failure to conduct an annual or special meeting of voting members for the election of directors in either 2009 or 2010.

These basic statutory requirements that Omar Mosque, Inc. violated would protect a corporation from the confusion and internal paralysis that this case has shown resulted when an internal division arose. Without a defined voting membership, regular meetings, and up-to-date membership roster, the authority of the board, and thus the legitimacy of the corporation itself, is no longer supported through recordable action.

The court added:

In light of the stable management provided by the Reash/Brey respondents, and the Khan/Ball board's willingness to efface itself from the day-to-day operation of the mosque, the oversight of the trustees or a receiver in this case may be limited to resolution of the current corporate dysfunction and need not intrude into the religious affairs of the mosque.

Court Temporarily Halts Deportation of 100 Iraqi Chaldeans and Minority Muslims

A Michigan federal district court yesterday issued a 14-day stay of the immediate deportation of over 100 Iraqi nationals who were arrested in immigration raids earlier this month.  Many of those arrested were Chaldeans. (See prior posting.)  In Hamama v. Adducci, (ED MI, June 22, 2017), the court described the claims raised:

Petitioners state that because of their having resided in the United States and their status as religious minorities – many are Christian, others are members of oppressed Muslim sects – they are likely to be persecuted, tortured, or killed by members of the Islamic State in Iraq and Syria, the de facto government in many parts of Iraq. 

The government argues that the district court lacks jurisdiction because of the provisions in 8 USC 1252(g).  The court concluded however:

In light of these complex jurisdictional issues, and the speed with which the Government is moving to remove Petitioners, it is necessary to stay Petitioners’ removal pending the Court’s determination regarding its jurisdiction. 

The ACLU issued a press release announcing the court's decision.

UPDATE: In a June 26 opinion, the court expanded its order to cove all Iraqi nationals in the United States subject to final orders of removal, and extended the temporary order to July 10.

10th Circuit: Qualified Immunity Protects Officer Who Told Suspect To Stop Praying

In Sause v. Bauer, (10th Cir., June 20, 2017), the U.S. 10th Circuit Court of Appeals dismissed on qualified immunity grounds a suit for damages alleging that police who were investigating a noise complaint violated plaintiff's 1st Amendment rights when an officer who had come to her home ordered her to get up and stop praying. The court said:

It certainly wouldn’t be obvious to a reasonable officer that, in the midst of a legitimate investigation, the First Amendment would prohibit him or her from ordering the subject of that investigation to stand up and direct his or her attention to the officer—even if the subject of the investigation is involved in religiously-motivated conduct at the time, and even if what the officers say or do immediately after issuing that command does nothing to further their investigation.

The court also held that plaintiff lacks standing to sue for injunctive relief. Liberty Counsel issued a press release reacting to the decision.

5th Circuit: Plaintiffs Lack Standing to Challenge Mississippi's Anti-LGBT Conscience Law

In Barber v. Bryant, (5th Cir., June 22, 2017), the U.S. 5th Circuit Court of Appeals dismissed for lack of standing two suits challenging Mississippi's HB 1523 which protects against discriminatory action by state government anyone who acts in accordance with his or her religious beliefs or moral convictions on three topics.  The protected beliefs are that marriage is only between one man and one woman, sexual relations are reserved to such marriages, and gender is determined by anatomy and genetics at the time of birth.  The district court had concluded that the statute violates the Establishment Clause and Equal Protection Clause. (See prior posting.) However the 5th Circuit concluded that plaintiffs had alleged nothing more than "a general stigmatic injury," and this is insufficient for standing. MS News Now reports on reactions to the decision.