Suits Against Kim Davis Move Ahead

In two similar cases, Yates v. Davis, (ED KY, Sept. 15, 2017), and Ermold v. Davis,(ED KY, Sept. 15, 2017), a Kentucky federal district court allowed plaintiffs to move ahead with their damage actions against Rowan County, Kentucky Clerk, Kim Davis, who refused to issue them marriage licenses. Davis adopted a "no marriage license" policy because of her religious objections to issuing licenses for same-sex marriages. (See prior related posting.) While dismissing claims brought against Davis in her official capacity, the court refused to dismiss personal capacity claims against her.  It found that her refusal to issue licenses was subject to strict scrutiny. [Thanks to Tom Rutledge for the lead.]

State May Require Inspection of Release Time School Buses

In CBM Ministries of South Central Pennsylvania v. Richards, (MD PA, Sept. 19, 2107), a Pennsylvania federal district court held that to the extent state school bus inspection regulations apply to buses of a religious organization, the regulations do not violate the Free Exercise Clause.  They are a neutral and generally applicable regulation.  At issue were buses that are used to transport students from public schools to an off-premise release time Bible education program.

Report Claims DOJ Was Divided Over Whether To File Amicus Brief In Masterpiece Cakeshop

As previously reported, earlier this month the Department of Justice filed an amicus brief in the Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, siding with the Christian bakery owner who refused to design and create a cake for a same-sex wedding.  Last week National Law Journal reported that the Department was divided on whether to file an amicus brief, although a Justice Department spokesperson denied  the report.The paper says:

Senior lawyers in the civil and civil rights divisions and within the U.S. solicitor general’s office said the department should not take a position in the case...

[Acting Solicitor General Jeffrey] Wall was the lead attorney among what former Justice Department lawyers said was an unusually large group of attorneys—eight in all—whose names appeared on the cover of the court filing....

Absent from the government’s Masterpiece Cakeshop brief was any career deputy solicitor general, whose name routinely appears on amicus and merits filings from the Justice Department.

Trump Issues Jewish High Holy Day Greetings

President Trump yesterday issued a Jewish High Holy Day Message (full text), saying in part:  "On behalf of all Americans, I want to wish Jewish families many blessings in the New Year."

Recent Articles of Interest

From SSRN:

• Aziz Z. Huq, Judging Discriminatory Intent, (Cornell Law Review, Vol. 103 (2017)).
• William E. Thro & Charles J. Russo, Odious to the Constitution: The Educational Implications of Trinity Lutheran Church v. Comer, (Education Law Reporter (2017, Forthcoming)).
• Elizabeth Brown & Inara K. Scott, Sanctuary Corporations: Should Liberal Corporations Get Religion?, (August 18, 2017).
• Erdem Büyüksagis, The Role of Comparative Law: New International Model Rules vs. Time-Tested Local Practices, (North Carolina Journal of International Law and Commercial Regulation, Vol. 42, No. 3, 2017).
• Ori Aronson, The How Many Question: An Institutionalist's Guide to Pluralism, (Institutionalizing Rights and Religion: Competing Supremacies 147-163 (Leora Batnitzky & Hanoch Dagan eds., Cambridge University Press, 2017).
• Scott D. Gerber, Law and Catholicism in Colonial Maryland, (103 Catholic Historical Review 465 (2017)).
• Reva Siegel, ProChoiceLife: Asking Who Protects Life and How—And Why It Matters in Law and Politics, (Indiana Law Journal, Forthcoming).
• Virginia La Torre Jeker, When Sharia and U.S. Tax Law Collide, (Tax Notes International, Volume 87, No. 8, August 21, 2017).
• David Herzig & Samuel D. Brunson, Let Prophets Be (Non) Profits, (Wake Forest Law Review, Forthcoming).

Israel's High Court Erodes Rabbinate's Monopoly On Kosher Certification

By a vote of 5-2, last week an expanded panel of Israel's High court of Justice handed down a ruling which moves toward breaking the Chief Rabbinate's monopoly on designation of which restaurants in the country are kosher.  As reported by Haaretz and Arutz Sheva, the ruling stops short of allowing alternative private kashrut certification. It upholds the Rabbinate's position that Israel's Kosher Fraud Law prohibits a business from representing itself as "kosher" without a certification approved by the Chief Rabbinate. However the decision does allow businesses "to display a true representation about the standards they follow and the way they are supervised in keeping them, which also includes an explicit clarification that they do not have a kashrut certificate."  The court added:

Assuming it is telling the truth, nothing prevents a food establishment from clarifying that the meat it serves was purchased from a slaughterhouse that carries kosher certification; and that the fish it serves are only those with fins and scales.

Recent Prisoner Free Exercise Cases

In Canada v. Gregg, 2017 U.S. Dist. LEXIS 146892 (WD VA, Sept. 12, 2017), a Virginia federal district court dismissed a Muslim inmate's complaint that changes in the common fare diet menu caused him to lose substantial weight.

In Goins v. Fleming, 2017 U.S. Dist. LEXIS 146891 (WD VA, Sept. 12, 2017), a Virginia federal district court allowed a Muslim inmate to move ahead with his complaint regarding kufi use during pod recreation and bathroom access during Sunni group services.  However the court dismissed a number of other claims regarding religious diet and location and monitoring of Sunni religious services.

In Jones v. North Carolina Department of Public Safety, 2017 U.S. Dist. LEXIS 147950 (WD NC, Sept. 12, 2017), a North Carolina federal district court allowed a Muslim inmate to move ahead with his complaint that he was required to shave his beard before he could go to a work-release job interview.

In Stansel v. Sorey, 2017 U.S. Dist. LEXIS 147985 (ND FL, Sept. 13, 2017), a Florida federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 148260, Aug. 8, 2017) and dismissed a Muslim inmate's complaint that an offer by an "Islamic sponsor" to provide funding for Ramadan and Eid al Fitr observances was rejected, while sponsors were accepted for other religious groups.

In Frazier v. Florida Department of Corrections, 2017 U.S. Dist. LEXIS 148814 (Sept. 14, 2017), a Florida federal district court dismissed a Jewish inmate's complaints regarding the adequacy and availability of a kosher diet.

In Johnson v. Swibas, 2017 U.S. Dist. LEXIS 149163 (D CO, Sept. 13, 2017), a Colorado federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 150250, July 28, 2017) and dismissed a Messianic Jewish inmate's complaint that he could not obtain an alternative kosher diet without confirmed medical food allergy test results.

Church's Objections To Zoning Conditions Dismissed On Ripeness Grounds

In Life Covenant Church, Inc. v. Town of Colonie, (ND NY, Sept. 13, 2017), a New York federal district court dismissed on ripeness grounds a church's objections to conditions placed in the zoning approval for its construction of a new building. The church contended that conditions limiting the starting time for religious services and the number of daily services violated its rights under the state and federal constitutions as well as RLUIPA.  The court held that the judicial challenge is not ripe because the church has not received a final decision on its request to the city that it amend its prior approval to eliminate the objectionable conditions.

Farmer's Market Must Issue Vendor's Permit To Orchard That Refuses To Host Same-Sex Weddings

In Country Mill Farms, LLC v. City of East Lansing, (WD MI, Sept. 15, 2017), a Michigan federal district court issued a preliminary injunction requiring a Michigan city to allow an orchard owner to sell produce at its Farmer's Market even though he refuses on religious grounds to host same-sex weddings at his orchard.  After Country Mill posted its policy against hosting same-sex weddings on its Facebook page, the city amended its Farmer's Market Vendor Guidelines to require all vendors to comply with the city's civil rights ordinances not only at the Farmer's Market, but "as a general business practice." It denied Country Mill a vendor's license because of non-compliance with the public accommodation law which, among other things, prohibits publishing a statement that indicates a business will discriminate on the basis of sexual orientation.

The court found that Country Mill had shown a substantial likelihood of success on its First Amendment retaliation claim: The city took action chilling the orchard owner's speech about his religious beliefs. Plaintiff also showed a likelihood of success on his free exercise claim:

The context in which the Vendor Guidelines were amended and then applied to Country Mill supports Plaintiffs’ claim that their religious beliefs or their religiously motivated conduct was the target of the City’s actions.... [T]he City’s hostility to Plaintiffs’ religion or religious conduct was ... manifested when the City used its facially neutral and generally applicable ordinance to deny Plaintiffs’ Vendor Application.

ADF issued a press release on the decision, with links to some of the other pleadings in the case.

President Holds High Holiday Teleconference With Jewish Leaders, Absent Many Who Boycotted the Annual Event

As reported by the Washington Post, today President Trump (along with Jared Kushner) participated in the traditional annual telephone call with Jewish leaders in advance of Rosh Hashanah. This year, however, leaders of the Reform, Conservative and Reconstructionist denominations boycotted the call in protest of Trump's remarks last month after Charlottesville.  In a statement, these leader charged that "The president’s words have given succor to those who advocate anti-Semitism, racism, and xenophobia." (Background.)  The White House released a transcript of remarks by the President and by Kushner at today's teleconference.  There the President said in part:

I am grateful for the history, culture, and values the Jewish people have given to civilization. We forcefully condemn those who seek to incite anti-Semitism, or to spread any form of slander and hate -- and I will ensure we protect Jewish communities, and all communities, that face threats to their safety.

Louisiana AG Opinion Says ABA Model Rule Barring Discrimination Is Unconstitutional

The Louisiana State Bar Association is considering adopting an amendment to its Rules of Professional Conduct that would define professional misconduct as including:

conduct in connection with the practice of law that the lawyer knows or reasonably should know involves discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability.  This rule does not prohibit legitimate advocacy when race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability are issues,nor does it limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.

This is a narrower version of ABA Model Rule 8.4(g) which the ABA House of Delegates adopted in 2016.  Last week, the Louisiana Attorney General's Office issued Attorney General's Opinion 17-0114 which concludes that the ABA version of the Model Rule is likely unconstitutional under the First and Fourteenth Amendments, and that while Louisiana's proposed version seeks to avoid many of the constitutional problems, it still suffers from some of the same vagueness and overbreadth issues as does the ABA rule.

In addition to finding that the ABA Model Rule is overbroad and vague, the Opinion also concluded that it violates associational and religious liberty protections, saying in part:

Lawyers participate in a wide variety of associations that engage in expressive conduct which could run afoul of ABA Model Rule 8.4(g), including faith-based legal organizations and activist organizations that promote a specific political or social platform....

ABA Model Rule 8.4(g) could also result in lawyers being punished for practicing their religion.  The United States Supreme Court specifically noted in Obergefell v. Hodges that "those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned."  However this type of advocacy appears to be prohibited by ABA Model Rule 8.4(g).... Under Rule 8.4(g), a lawyer who acts as a legal advisor on the board of their church would be engaging in professional misconduct if they participated in a march against same-sex marriage or taught a class at their religious institution against divorce....

AP reports on the Attorney General's Opinion.

9th Circuit: Facebook Is Immune From Liability For Blocking Access To Sikh Group's Page

In Sikhs for Justice, Inc. v. Facebook, Inc., (9th Cir., Sept. 13, 2017), the U.S. 9th Circuit Court of Appeals affirmed a California federal district court's dismissal of a religious discrimination claim against Facebook. (See prior posting.) In the lawsuit, brought by a Sikh human rights group, plaintiffs contend that Facebook violated the public accommodation provisions of the 1964 Civil Rights Act when it blocked access to SJF's Facebook page in India.  The suit contends that Facebook collaborated with the government of India in retaliating against SFJ for its online campaign complaining about the treatment of Sikhs and promoting an independent Sikh state.  The 9th Circuit held that Facebook is immune from civil liability under Section 230 of the Communications Decency Act, and that Title II of the 1964 Civil Rights Act does not provide an exception to this immunity.

Former USCIRF Commissioner Cromartie Dies

A press release yesterday from the U.S. Commission on International Religious Freedom reported that former USCIRF Commissioner Michael Cromartie died on Aug. 28. The release said in part:

Mr. Cromartie was a prolific writer who edited more than a dozen books on religion and politics.  He also served as a primary source for the media as reporters sought to understand the intersection of politics and religion.  He has been described as being part of a wave of evangelical Christians who believed that their faith required an active engagement in both politics and public life.

The New York Times (Sept. 1) carried his Obituary.

Animal Rights Group Sues Police Over Lax Enforcement Against Kapparot Ritual

As the Jewish High Holidays approach, animal rights groups in California are again (see prior posting) attempting to stop the practice of using chickens for the pre-Yom Kippur ritual of kapparot. The complaint (full text) in Animal Protection and Rescue League v. City of Los Angeles, (CD CA, filed 9/12/2017), contends that the the Los Angeles and Irvine police departments are violating the Establishment Clause by "actively protecting, encouraging and ratifying illegal conduct solely because it is motivated by religious belief." Plaintiffs say they want to make citizens' arrests of those who kill and discard chickens in their presence, but that police are deployed in large numbers to prevent such arrests. They say that under California Penal Code Secs. 597(a) and 599c, all intentional killing of animals, except when used for food, are outlawed. Orange County Register reports on the lawsuit. [Thanks to Steven H. Sholk for the lead.]

European Court Affirms Jurisdiction of Ecclesiastical Courts

In Nagy v. Hungary, (ECHR, Sept. 14, 2017), the Grand Chamber of the European Court of Human Rights, by a vote of 10-7, upheld the exclusive jurisdiction of ecclesiastical courts over contractual disputes that are matters of ecclesiastical law.  In the case, a pastor in the Reformed Church of Hungary was suspended, and ultimately removed, from his position through church disciplinary proceedings because of statements he had made in a local newspaper.  He then sued in civil courts for compensation that he says he was owed for the periods prior to his termination.  When lower courts dismissed his claims, he argued that this violated his right under Article 6(1) of the European Convention on Human Rights to a fair trial by an independent and impartial tribunal established by law in determining his civil rights.  The European Court's majority opinion held in part:

... [A]pplicant’s claim ... concerned an assertion that a pecuniary claim stemming from his ecclesiastical service, governed by ecclesiastical law, was actually to be regarded as falling under the civil law.... Given the overall legal and jurisprudential framework existing in Hungary ..., the domestic courts’ conclusion that the applicant’s pastoral service had been governed by ecclesiastical law and their decision to discontinue the proceedings cannot be deemed arbitrary or manifestly unreasonable.... [This] Court cannot but conclude that the applicant had no “right” which could be said, at least on arguable grounds, to be recognised under domestic law. To conclude otherwise would result in the creation by the Court, by way of interpretation of Article 6 § 1, of a substantive right which had no legal basis in the respondent State.

Four separate dissenting opinions were also filed. ADF issued a press release regarding the decision.

6th Circuit Rejects Law Prof's Claim That $666 Raise Was Retaliatory As "Mark of the Beast"

In Lifter v. Cleveland State University, (6th Cir., Sept. 12, 2017), the U.S. 6th Circuit Court of Appeals affirmed an Ohio federal district court's dismissal of a lawsuit by two former Cleveland State University Law School professors (husband and wife) who claim that the dean had retaliated against them because of the husband's activity in unionizing the faculty.  Plaintiff Sheldon Gelman argued that part of the retaliation was awarding him a raise of only $666 for the year.  He contended that not only did he deserve more, but that the dean chose the $666 figure as an intentional invocation of the biblical "mark of the beast."  The court dismissed Gelman's claim, saying:

Construing the facts in the light most favorable to Gelman, he cannot show that his union organizing activities were a substantial or motivating factor in these alleged injuries.

Law.com reports on the decision.

Santa Fe Diocese Releases List of Priests Found Guilty of Sex Abuse

On Tuesday, the Catholic Archdiocese of Santa Fe released the names of 74 priests, deacons and brothers who have been found guilty of sexually abusing a child, either by the Church (canon law), the State (criminal law), or both. The list also includes those who were laicized after being accused of sexually abusing a minor, and those publicly accused where criminal proceedings were not completed (often because of death).  AP, reporting on the release, says that it comes after decades of pressure from victims and their families.

Congress Sends Joint Resolution Condemning Hate Groups To President

Yesterday Congress gave final passage to Senate Joint Resolution 49 (full text) "condemning the violence and domestic terrorist attack that took place during events between August 11 and August 12, 2017, in Charlottesville, Virginia."  The Joint Resolution, that now goes to President Trump for his signature, reads in part:

Congress ... urges— ... the President and his administration to—

(i) speak out against hate groups that espouse racism, extremism, xenophobia, anti-Semitism, and White supremacy; and (ii) use all resources available to the President and the President’s Cabinet to address the growing prevalence of those hate groups in the United States; and 

[urges] the Attorney General to work with (i) the Secretary of Homeland Security to investigate thoroughly all acts of violence, intimidation, and domestic terrorism by White supremacists, White nationalists, neo-Nazis, the Ku Klux Klan, and associated groups in order to determine if any criminal laws have been violated and to prevent those groups from fomenting and facilitating additional violence....

Politico reporting on the action by Congress adds:

Though resolutions are often passed to offer the sense of the House or Senate on various issues, they rarely head to the president for consideration. But backers of this measure structured it as a "joint resolution," a move ensuring that passage would require Trump to weigh in on an issue that has dogged his presidency for weeks.

Malaysian Prime Minister Urges Trump To Support Moderate Muslim Regimes

Yesterday President Trump welcomed Malaysian Prime Minister Najib Abdul Razak to the White House.  Both leaders spoke briefly (full text of remarks) in the Cabinet Room before their private meeting. Among other things, Razak urged Trump to support progressive Muslim regimes, saying in part:

Daesh, IS, Al-Qaeda, Abu Sayyaf  ... are the enemy of the United States, they are also the enemy of Malaysia, and we will do our part to make sure that our part of the world is safe.

We will also contribute in terms of the ideological warfare because you need to win the hearts and minds.  And the key to it is to support moderate and progressive Muslim regimes and governments around the world, because that is the true face of Islam; that is the authentic face of Islam.  The more you align with progressive and moderate regimes, the better it would be in terms of winning the hearts and minds of the Muslim world.

President Trump responded: "Right".

Israel's High Court Strikes Down 2015 Law On Draft Exemptions For Ultra-Orthodox

Israel's High Court of Justice yesterday struck down a 2015 law that was intended to reverse attempts enacted a year earlier to increase the number of ultra-Orthodox young people who are drafted into the Israel Defense Forces.  As reported by Times of Israel:

Eight justices, led by Chief Justice Miriam Naor, ruled that the current arrangement was increasing the inequality in the “draft burden,” rather than reducing it, which was the law’s stated purpose and the grounds for its constitutionality. That made it an “unconstitutional law,” the justices ruled.

One dissenter, Justice Noam Solberg, argued that the law had not been in effect long enough to determine its effect on the military draft, and therefore no determination could yet be made about its constitutionality.

The Court gave the Knesset one year to come up with a different arrangement.  Ultra-Orthodox members of the Knesset strongly criticized the decision.  For example, Deputy Education Minister Meir Porush of the United Torah Judaism party said:

The High Court of Justice’s judicial activism completely empties Knesset legislation of importance, turning it into a dead letter. Today’s decision just drives another stake into the coffin. The High Court of Justice is eager for the apocalypse.

Jockeying In Travel Ban Litigation Continues In Supreme Court

As previously reported, last week the U.S. 9th Circuit Court of Appeals in State of Hawaii v. Trump affirmed a district court's decision on the scope of President Trump's second travel ban executive order.  The decision essentially found that the executive branch had read an earlier order by the Supreme Court too narrowly both as to the travelers and refugees who could be excluded under the travel ban pending a Supreme Court decision on the merits. In a filing on Sept. 11, the government asked Justice Kennedy, the Circuit Justice for the 9th Circuit, to stay the portion of the 9th Circuit's mandate dealing with refugees who are still covered by the travel ban. The next day, Justice Kennedy issued an order temporarily staying that portion of the 9th Circuit's mandate. Today, the state of Hawaii filed its response, arguing in part:

The Government has returned to this Court, for the third time, to ask that it superintend the application of the injunction in this case. The first time the Government was here ... this Court set forth the legal standard that governs the injunction of Executive Order 13,780 ...: Any foreign national with a “bona fide relationship” with a U.S. entity—that is, a relationship that is “formal, documented, and formed in the ordinary course”—is protected from EO-2’s travel and refugee bans.... The second time, on July 19, 2017, the Court denied the Government’s request to “clarify” that the injunction does not apply to refugees who have received a formal assurance from a refugee resettlement agency, instead directing the Ninth Circuit to resolve the question....

The Ninth Circuit faithfully applied both of those directives. It determined ... that a refugee has a “bona fide” relationship with a resettlement agency that signs a formal, written assurance to provide for her housing, food, and other essentials of life. And the Ninth Circuit rejected the Government’s invitation to treat this Court’s July 19, 2017 stay as the merits decision the Court had declined to issue; instead, it performed the diligent analysis that is expected of an appellate court.

SCOTUSblog reports on developments.

UPDATE: On Sept. 12, the U.S. Supreme Court issued an order (full text) staying the 9th Circuit's mandate as it applies to refugees covered by a formal assurance of placement from a resettlement agency.  Refugees from countries covered by the travel ban whose only connection to the United States is such an assurance of placement will be able to be excluded, at least until the Supreme Court decides on the validity of the travel ban on the merits this term.

Pope Criticizes Trump's Action On DACA

Pope Francis yesterday on his way back to the Vatican from his trip to Colombia was sharply critical of President Trump's recent move to repeal DACA. As reported by Newsweek, the Pope said in part:

The president of the United States presents himself as pro-life, and if he is a good pro-lifer, he understands that family is the cradle of life and its unity must be protected.

India's Chief Justice Tells Authorities To Rein In Cow Protection Vigilantes

According to Reuters, India's Supreme Court last week ordered both the federal and state governments to appoint police officers to stop cow protection groups from taking the law into their own hands. Chief Justice Dipak Misra told governments to take this step after a hearing on three public interest lawsuits. There has been a wave of attacks by Hindu activists on Muslims accused of killing cows or eating beef. Police have processed over three dozen cases in the past two years. Several Indian states impose criminal punishment for slaughtering cows, which are sacred to Hindus.

South African Court Reconciles Marriage Law With Gender Identity Change Statute

Under South African law, marriages may be performed only for heterosexual couples; however civil unions, which create the same legal rights as a marriage, may be performed for either heterosexual or same-sex couples.  South Africa also has a statute which allows transgender individuals to register their gender transition with the government if they have undergone medical or surgical treatment to alter their sexual characteristics. Registration leads to a change in the gender listed on birth certificates and in the population register. In KOS v. Minister of Home Affairs, (S.A. High Ct., Sept. 6, 2017), a South African trial court was faced with the question of how to treat couples who had entered a heterosexual marriage (not a civil union), where subsequently the husband underwent gender transitioning and registered the change in gender identity with the government.

The government argued that in such cases, a gender change should not be able to be registered since it would result in a same-sex marriage, which the law does not recognize. In one of the cases, the government had instead cancelled the couple's marriage record and insisted that they enter a civil union.  The court however, disagreed concluding that the couples must be allowed to register the gender reassignment and remain married.  Refusing to do this, the court said, violates the rights under the South African Constitution to administrative justice and to equality and human dignity. GroundUp reports on the decision.

Recent Articles of Interest

From SSRN:

• D. A. Jeremy Telman, The Free Exercise Clause and Hans Kelsen's Modernist Secularism, (Hans Kelsen in American–Selective Affinities and the Mysteries of Academic Influence (Springer 2016)).
• Michel Rosenfeld, The Conscience Wars in Historical and Philosophical Perspective: The Clash between Religious Absolutes and Democratic Pluralism, (The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Cambridge University Press 2018) (Susanna Mancini & Michel Rosenfeld, eds.)).
• Barry W. Bussey, The Charter Is Not a Blueprint for Moral Conformity, (August 31, 2017).
• Harold Anthony Lloyd, It's a Full Moon Tonight: Speaker Meaning and the Interpretation and Construction of Executive Orders (with Related Reflections on Legislative Speaker Meaning), (September 5, 2017).

From SSRN (Islamic Law);

• Fajri Matahati Muhammadin & Fathimatush Sholihah, Towards a United Islamic Identity in the Making of International Law, (International Journal of Business, Economics, and Law, Vol 9 (5), 2016).
• Fajri Matahati Muhammadin & Thara Kunarti Wahab, Prospects and Challenges of Fiqh al-Jihad in Modern Warfare, (Conference Proceeding of Konferensi Nasional Perbandingan Hukum Indonesia, Universitas Airlangga, Surabaya, Indonesia (2017)).
• Fajri Matahati Muhammadin, Dian Agung Wicaksono,  Ola Anisa Ayutama & Almonika Cindy Fatika Sari, Lashing in Qanun Aceh and the Prohibition Against Torture and Cruel Treatment in the Convention Against Torture, (Conference Proceeding, Aceh Development International Conference, Selangor, Malaysia (2017)).
• Fajri Matahati Muhammadin, Refuting Da’Esh Properly: A Critical Review of the 'Open Letter to Baghdadi', (Journal of International Humanitarian Action, Vol I: 11 (2016)).
• Fajri Matahati Muhammadin, Comparing International Humanitarian Law and Islamic Law on War Captives: Observing ISIS, (Jurnal Dauliyah, Vol 2 (2016)).

From SmartCILP:

• Laurence Winer & Nina J. Crimm, A Perspective on Suitable Latitude for Religious Establishments. 49 Arizona State Law Journal 223-253 (2017).
• Stephane Mechoulan, France Bans the Veil: What French Republicanism Has to Say About It, 35 Boston University International Law Journal 223-284 (2017).
• Rena M. Lindevaldsen, When the Pursuit of Liberty Collides with the Rule of Law, 11 Liberty University Law Review 667-721 (2017).
• James A. Davids, The Role of Worldview in the Judicial Decisions of Justice John Paul Stevens, 11 Liberty University Law Review 723-764 (2017).
• Jonathan Rauch, David C. Baum Memorial Lecture. Gay Rights, Religious Liberty, and Nondiscrimination: Can a Train Wreck be Avoided?, 2017 University of Illinois Law Review 1195-1207.
• Brett H. McDonnell, Between Sin and Redemption: Duty, Purpose, and Regulation in Religious Corporations, 74 Washington & Lee Law Review 1043-1088 (2017).

U.S. Plans To Return Retrieved Jewish Archive To Iraq

According to a JTA report last week, an Iraqi Jewish Archive found by U.S. troops in the basement of the Iraqi secret services headquarters in Baghdad 14 years ago, will be returned to Iraq next year. According to JTA:

The archive was brought to America in 2003 after being salvaged by U.S. troops. It contains tens of thousands of items including books, religious texts, photographs and personal documents. Under an agreement with the government of Iraq, the archive was to be sent back there, but in 2014 the Iraqi ambassador to the U.S. said its stay had been extended. He did not say when the archive was to return....

In the U.S., the artifacts were restored, digitalized and exhibited under the auspices of the National Archives in Washington, D.C.

Jewish legislators and some Jewish groups are pressing the State Department to negotiate a new agreement to keep the collection in the United States or at some other location where it is available to Iraqi Jews-- all but a handful of whom have now left Iraq. [Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Nunez v. Wertz, 2017 U.S. Dist. LEXIS 142825 (MD PA, Sept. 1, 2017), a Pennsylvania federal district court permitted a Muslim inmate to move ahead with his complaint that his rights under RLUIPA were violated when he was not permitted to wear his pants with legs rolled up to expose his ankles, except during religious services.

In Riley v. Franke, 2017 U.S. Dist. LEXIS 142971 (ED WI, Sept. 5, 2017), a Wisconsin federal district court dismissed a Muslim inmate's claim that a correctional officer engaged in religious discrimination by dropping his Ramadan meals on the floor.

In Troutman v. Mutayoba, 2017 U.S. Dist. LEXIS 144100 (SD IL, Sept. 6, 2017), an Illinois federal district court allowed an inmate to move ahead with his complaint that authorities refused to provide him with a diet consistent with his Native American religious beliefs.

In Thomas v. Pingotti, 2017 U.S. Dist. LEXIS 144173 (ND NY, Sept. 6, 2017), a New York federal district court allowed a Muslim inmate to move ahead with his claim that during his keeplock confinement he was not allowed to attend Jum'mah services,  or the prayer and festival to break Ramadan.

In Gambino v. Payne, 2017 U.S. Dist. LEXIS 144337 (WD NY, Sept. 1, 2017), a New York federal magistrate judge in a suit brought by an inmate who was in the process of converting to Judaism recommended dismissing his complaint that showers with inadequate privacy violated his free exercise rights, but allowed him to move ahead with his claim against certain defendants that he was purposely served contaminated kosher meals which defendants refused to replace.

In Meza v. California Department of Corrections & Rehabilitation, 2017 U.S. Dist. LEXIS 144415 (ED CA, Sept. 6, 2017), dismissed with leave to amend a Catholic inmate's complaint that he was not allowed to attend a funeral outside of prison because of his alleged gang affiliation.

In Brim v. Donovan, 2017 U.S. Dist. LEXIS 144497 (W WI, Sept. 7, 2017), a Wisconsin federal district court allowed a Muslim inmate to proceed with a complaint that his name was removed from the congregate services pass list for 90 days and his name was not put on the 2015 Ramadan list.

In Allah v. Annucci, 2017 U.S. Dist. LEXIS 145104 (SD NY, Sept. 7, 2017), a New York federal district court allowed an inmate to move ahead with his claims that he was not allowed to attend two Shi'ite holy day events.

DOJ Supports Christian Baker In Amicus Brief Filed With Supreme Court

In an amicus brief filed in the U.S. Supreme Court on Sept. 7 in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the U.S. Department of Justice sided with the Christian bakery owner who refused to design and create a cake for a same-sex wedding.  The brief (full text) argues:

Heightened scrutiny is appropriate at least where a law both compels the creation, for a particular person or entity, of speech or of a product or performance that is inherently communicative, and compels the creator’s participation in a ceremony or other expressive event....

Public accommodations laws compel expression— whether speech or expressive conduct— when they mandate the creation of commissioned goods or the provision of commissioned services that are inherently communicative. That situation might arise if a public accommodations law were applied to painters, photographers, poets, actors, musicians, or other professional artists. Assuming that those artists offer their creative services to the public, a State might attempt to bar a painter who agrees to paint a custom portrait of an opposite-sex couple at their wedding from declining to paint a same-sex couple, or vice versa. Or it might attempt to bar a freelance graphic designer who agrees to design fliers for the upcoming meetings of a Jewish affinity group from declining to do so for a neo-Nazi group or the Westboro Baptist Church. So long as the artist offers to produce expression for a fee, a public accommodations law might purport to restrict her ability to determine which art she will create and for whom....

A public accommodations law exacts a greater First Amendment toll if it also compels participation in a ceremony or other expressive event. That participation may be literal, as in the case of a wedding photographer who attends and is actively involved with the wedding itself. Or that participation may be figurative, as when a person designs and crafts a custom-made wedding ring that performs an important expressive function in the ceremony. Either way, such forced participation intensifies the degree of governmental intrusion.

Some 15 other amicus briefs in support of petitioner have also been filed. Links to them are available on SCOTUSblog's case page.  The due date for amicus briefs in support of respondent has not yet arrived. Christian News reports on the filing of the amicus brief.

No RLUIPA Violations In Denial of Variance For Personal Chapel

In Milosavlejevic v. City of Brier, (WD Wash., Sept. 7, 2017), a Washington federal district court held that the city of Brier, Washington did not violate RLUIPA when it denied petitioner a height variance so he could build a personal Serbian Orthodox chapel with a 40-foot dome on his property.  The court held that the city had not substantially burdened petitioner's free exercise, saying that he has "ready alternative places of worship at his disposal." It also rejected his RLUIPA equal terms and his Sec. 1983 discrimination claims.

NY Appeals Court Rules On Custody After Divorce of Hasdic Jewish Couple

In Weisberger v. Weisberger, (NY App., Aug. 16, 2017), a New York appellate court modified a trial court's custody order in a divorce proceeding.  At issue was the party's original agreement regarding the Jewish religious upbringing of their children. That agreement provided that the mother would raise the children in the "Hasidic practices of ultra Orthodoxy." The parties had divorced after the mother revealed that she was attracted to women rather than men.  When the mother changed the family's religious practices (and also began living with a transgender man), the trial court awarded the father full custody of the children.  The appeals court modified that order, returning custody to the mother with increased visitation rights for the father, and provided the father would have custody of the children during Jewish holidays.  It also ruled:

While we respect the parties' right to agree to raise their children in a chosen religion ... the weight of the evidence does not support the conclusion that it is in the children's best interests to have their mother categorically conceal the true nature of her feelings and beliefs from them at all times and in all respects, or to otherwise force her to adhere to practices and beliefs that she no longer shares.... 

This is not to say that it would be in the children's best interests to become completely unmoored from the faith into which they were born and raised.... [I]t is in the children's best interests to continue to permit the father to exercise final decision-making authority over the children's education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices.... [W]e deem it appropriate to direct the mother to make all reasonable efforts to ensure that the children's appearance and conduct comply with the Hasidic religious requirements of the father and of the children's schools while the children are in the physical custody of their father or their respective schools. Further, in light of the mother's proposal ... to keep a kosher home and to provide the children exclusively with kosher food, we find that it would be in their best interests for her to do so.... Except for these specified matters, we otherwise modify the religious upbringing clause to allow each parent to exercise his or her discretion while the children are in his or her care or custody.

JTA reported on the decision in an article published this week. [Thanks to Rabbi Michael Simon for the lead.]

9th Circuit Affirms Enforceable Scope of Travel Ban

In State of Hawaii v. Trump, (9th Cir., Sept. 7, 2017), the U.S. 9th Circuit Court of Appeals affirmed a federal district court's decision on the scope of President Trump's second travel ban executive order. The court affirmed the lower court's injunction barring enforcement of the Executive Order against

(1) grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and (2) refugees who have formal assurances from resettlement agencies or are in the U.S. Refugee Admissions Program (“USRAP”) through the Lautenberg Amendment.

Honolulu Star Advertiser has more on the decision.

Nominees For Federal Bench In Texas Have Religious Liberty Defense Background

Dallas News reports that among the 16 judgeship nominations announced by the White House yesterday are two nominations to Texas federal district courts of individuals with extensive backgrounds in issues of religious liberty.  Jeff Mateer, currently First assistant Attorney General of Texas, was previously general counsel and executive vice president of the First Liberty Institute. Matthew J. Kacsmaryk is currently Deputy General Counsel to First Liberty Institute.  First Liberty describes itself as "the largest legal organization in the nation dedicated exclusively to protecting religious liberty for all Americans."

Australia's Top Court Upholds Planned Mail Survey of Voters On Same-Sex Marriage

In Wilkie v. Commonwealth of Australia, (High Ct. Australia, Sept. 7, 2017), Australia's highest court unanimously upheld the government's plan to conduct a voluntary survey by mail of the country's voters on whether same-sex marriage should be legalized.  At issue in the case was whether the government acted properly when it used a law permitting expenditures which are urgent and unforeseen to fund the survey.  As reported by news.com.au:

Ballots with the question, “Should the law be changed to allow same-sex couples to marry?” will be sent to households across the nation on September 12....

If a majority of people vote in favour, a vote will then be held in parliament which [Prime Minister Malcolm] Turnbull says he expects will make same-sex marriage legal. If Australians vote no, Mr Turnbull has said the parliamentary vote will not proceed.

The postal survey was conceived after Australia's Senate voted against government sponsored legislation for a binding plebiscite. Interestingly, advocates of marriage equality were among those challenging the plebiscite, arguing that Parliament should legalize same-sex marriage without this preliminary vote. (Marriage Equality Information Sheet).  Law & Religion Australia last month had a lengthy post on the religious liberty implications of the substantive legislation that is being considered.

7th Circuit Nominee Questioned On Religious Beliefs and Judicial Duties

The Senate Judiciary Committee yesterday held hearings on the nominations of four federal judges and the nominee to head the Justice Department's Civil Rights Division. (Video of full hearings).  One of the nominees, Notre Dame Law Professor Amy Coney Barrett, tapped for a seat on the U.S. 7th Circuit Court of Appeals, faced extensive questioning stemming from a background report from the Alliance for Justice. That report focuses in part on a 1998 law review article titled Catholic Judges in Capital Cases that was co-authored by Barrett.  This led to several exchanges with senators on the role a judge's religious beliefs play in judicial decision making. Daily Caller reports on the hearing.

FLDS Leader Ordered To Pay $16M In Damages To Child Victim

Utah state trial court judge Keith Kelly on Tuesday ordered Warren Jeffs (who is now in prison) and the polygamous FLDS church that he heads to pay $4 million in compensatory damages and $12 million in punitive damages to Elissa Wall who, at age 14, was pressured to marry her 19 yer old cousin. As reported by the Salt Lake Tribune:

In his ruling, Kelly noted that Jeffs controlled the church and key aspects of Wall’s life. He arranged the marriage to Alan Steed over Wall’s objections and performed the ceremony. Jeffs also pressured Wall to have children with Steed. Miscarriages and a stillbirth followed.

6th Circuit En Banc Upholds Invocations Offered By County Commissioners

In Bormuth v. County of  Jackson, (6th Cir., Sept. 6, 2017),  the U.S. 6th Circuit Court of Appeals sitting en banc in a 9-6 decision upheld the invocation practices of the Jackson County, Michigan Board of Commissioners.  At issue was whether the Establishment Clause is violated when invocations-- virtually all of them Christian-- are offered by elected Commissioners themselves rather than by a chaplain or invited clergy.  Judge Griffin's majority opinion reasoned:

There is no support for [plaintiff's] granular view of legislative prayer. In this regard, neither Marsh nor Town of Greece restricts who may give prayers in order to be consistent with historical practice....

That the prayers reflect the individual Commissioners’ religious beliefs does not mean the Jackson County Board of Commissioners is “endorsing” a particular religion, Christianity or otherwise. For one, while all the Commissioners presumably believe in Jesus Christ, the faiths of Christianity are diverse, not monolithic. The Reformation of the Sixteenth Century spawned an explosion of Christian faiths. Many of those practicing these new Christian faiths sought religious freedom in America and found refuge from the tyranny inflicted by sectarian governments....

We do not know the religious faiths of the 2013-2014 Jackson County Commissioners. The nine “Christian” Commissioners may have included Roman Catholics, Southern Baptists, Mormons, Quakers, Episcopalians, Lutherans, Methodists, and others.

Judges Rogers and Sutton wrote concurring opinions.

Judge Moore's dissent argued:

In the case before us today, the majority is dangerously close to permitting exactly what Justice Alito said Town of Greece obviously does not permit—government officials instructing citizens to participate in sectarian prayer before commencing government proceedings. There is no daylight between polling place workers asking individuals to pray before casting their ballots, as in Justice Alito’s example, and county commissioners asking individuals to pray before participating in local government meetings, as actually happens in Jackson County. This similarity underscores why a tradition that protects the Town of Greece’s right to open its meetings with solemn and respectful prayers, which was targeted at legislators and offered by clergy or volunteers from a variety of faith traditions, does not protect Jackson County’s policy to restrict its legislative prayer practice to government officials themselves asking the public to participate in exclusively Christian prayer.

Judge White wrote a separate dissenting opinion. Courthouse News Service reports on the decision.

New Report on America's Changing Religious Identity

The Public Religion Research Institute yesterday released its report on America's Changing Religious Identity.  According to the Executive Summary:

The American religious landscape is undergoing a dramatic transformation. White Christians, once the dominant religious group in the U.S., now account for fewer than half of all adults living in the country. Today, fewer than half of all states are majority white Christian. As recently as 2007, 39 states had majority white Christian populations. These are two of the major findings from this report, which is based on findings from PRRI’s 2016 American Values Atlas, the single largest survey of American religious and denominational identity ever conducted. This landmark report is based on a sample of more than 101,000 Americans from all 50 states and includes detailed information about their religious affiliation, denominational ties, political affiliation, and other important demographic attributes.

Among the other findings of the Report:

White Christians have become a minority in the Democratic Party. Fewer than one in three (29%) Democrats today are white Christian, compared to half (50%) one decade earlier. Only 14% of young Democrats (age 18 to 29) identify as white Christian. Forty percent identify as religiously unaffiliated.

White evangelical Protestants remain the dominant religious force in the GOP. More than one-third (35%) of all Republicans identify as white evangelical Protestant, a proportion that has remained roughly stable over the past decade. Roughly three-quarters (73%) of Republicans belong to a white Christian religious group.

RLUIPA Suits Over Mosque Construction Are Settled

The Justice Department announced yesterday that a settlement agreement (full text) has been reached in United States v. Bensalem Township, Pennsylvania, as well as in a private suit involving the same underlying facts. In the  suit, the Justice Department alleged that the township violated RLUIPA in denying a zoning variance to permit Bensalem Masjid to construct a mosque on property near a commercial area. (See prior posting.)  The agreements call for approval of use of the property and for the Township to amend its zoning ordinances so they are compliant with RLUIPA. Bucks County Courier Times reports on the settlement.

Jewish Woman Sues Restaurant Over Bacon In Veggie Omelet

Detroit Free Press reports that a lawsuit was filed last week in a Michigan state trial court against a Detroit area Denny's restaurant for including bacon in a vegetarian omelet.  Plaintiff Angela Montgomery is a practicing Jew who for religious reasons does not eat pork products.  Restaurant personnel had apologized to Montgomery, telling her that this was a mistake because the bacon container was next to the containers of vegetables.  A similar lawsuit was filed Aug. 22 by a Yemeni-American Muslim couple  against a Detroit area KFC that had mistakenly included bacon on their chicken sandwiches.

Churches Challenge FEMA's Bar On Disaster Aid To Houses of Worship

This week three Texas churches that suffered significant damage from Hurricane Harvey filed suit against FEMA, challenging its policy that precludes houses of worship from receiving federal disaster assistance aid. The complaint (full text) in Harvest Family Church v. Federal Emergency Management Agency, (SD TX, filed 9/4/2017), relies particularly on the U.S. Supreme Court's recent Trinity Lutheran Church decision in claiming that FEMA's policy unconstitutionally discriminates against churches solely because of their religious status.  Plaintiffs contend:

Were the Churches not religious, their prohibited “worship” services would instead be eligible as “social activities to pursue items of mutual interest”; the impermissible “religious instruction” during religious services would be permissible as “educational enrichment activity”; children’s church and women’s Bible study groups would qualify as a “service or activity intended to serve a specific group of individuals”; and meetings between the clergy and other church leaders would be a “community board meeting.”

Becket issued a press release announcing the filing of the lawsuit.

UPDATE: In a tweet on Friday, President Trump said: "Churches in Texas should be entitled to reimbursement from FEMA Relief Funds for helping victims of Hurricane Harvey (just like others)."

Christian Church Heads In Jerusalem Protest Two Government Actions

In Israel this week, the heads of the major Christian denominations in the country-- Greek Orthodox, Armenian Orthodox, Latin Catholic, and Ethiopian Orthodox-- signed a joint statement (full text) protesting two recent actions by the Israeli government, calling them "a systematic attempt to undermine the integrity of the Holy City of Jerusalem and the Holy Land, and to weaken the Christian presence."  As explained by the Jerusalem Post:

The first is a Jerusalem District Court ruling from last month saying that the purchase of three major compounds adjacent to Jaffa Gate in the Old City were carried out legally, and as a result, were transferred from the Greek-Orthodox church to the rightwing NGO Ateret Kohanim Yeshiva....

The second issue is a bill proposed by the Kulanu MK Rachel Azaria which is signed by 39 other MKs across the political spectrum, that seeks to nationalize lands owned by churches in west Jerusalem and sold to private entrepreneurs....

Churches leased the disputed properties in west Jerusalem to the Jewish National Fund, mainly in the 1950s, parts of which ... [were then] sold to residents living there. In the next 20-50 years the lease periods will end, and the churches have reportedly sold parcels of the land to private entrepreneurs – a deal that ... creates future uncertainty....

The bill proposes to compensate all sides that would be harmed from the nationalizing of land.

Recent Articles of Interest

From SSRN:

• David Herzig & Samuel D. Brunson, A Diachronic Approach to Bob Jones: Religious Tax Exemptions after Obergefell, (Indiana Law Journal, Forthcoming).
• Arif A. Jamal, Considering Freedom of Religion in a Post-Secular Context: Hapless or Hopeful?, (Oxford Journal of Law and Religion, Forthcoming).
• Ellen P. Aprill, Religious Organizations, Refuge for Undocumented Immigrants, and Tax Exemption, (Loyola Law School, Los Angeles Legal Studies Research Paper No. 2017-28 (2017).
• Carlo A. Pedrioli, Pope Francis and the Limits of Freedom of Expression, (Comparative Perspectives on Freedom of Expression 197 (Russell L. Weaver, Steven I. Friedland & Mark D. Cole eds., 2017)).
• Steven W. Bender, The Teachings of Pope Francis Symposium: Toward a Common Good for Our Common Home, (Seattle University Law Review, Vol. 40, No. 1167, 2017).
• Rebecca Ruth Gould, Punishing Violent Thoughts: Islamic Dissent and Thoreauvian Disobedience in Post-9/11 America, (Journal of American Studies, Forthcoming).

From SSRN (Non-US Law):

• Jeroen Temperman, The European Convention on Human Rights & Parental Rights in Relation to Denominational Schooling, (11:2-3 Religion & Human Rights: An International Journal (2017), pp. 142–152).
• Benjamin L. Berger, Freedom of Religion, (Oxford Handbook of the Canadian Constitution, Nathalie Des Rosiers, Patrick Macklem and Peter Oliver, eds, Oxford: Oxford University Press, 2017, Forthcoming).
• Sylvia Tamale, Controlling Women’s Fertility in Uganda, (International Journal on Human Rights, SUR 24, Vol. 13, No. 24, 117 - 128, 2016).
• Diya Uberoi & Beatriz Galli, Refusing Reproductive Health Services on Grounds of Conscience in Latin America, (December 10, 2016).
• Shalu Nigam, Fighting for the Justice in the Patriarchal Courts, (August 29, 2017).

From SmartCILP:

• Barbara Massie, Examining the Foundations: Comparing Islamic Law and the Common Law of the United States,11 Liberty University Law Review 525-557 (2016).

Court Upholds California Requirement That Health Plans Cover Abortions

In Foothill Church v. Rouillard, (ED CA, Sept. 1, 2017), a California federal district court upheld against a free exercise challenge letters from the California Department of Managed Health Care requiring private health insurers to remove all limitations on or exclusions of abortion services from their health care policies.  Three churches sued arguing that this prevents them from providing their employees with health insurance that is consistent with their Christian teachings.  The court in dismissing plaintiffs' amended complaint held, however, that the Department's letters were neutral and generally applicable, and thus consistent with the free exercise clause.  Plaintiffs also alleged that the Department had granted an exception to one health care plan, allowing it to exclude coverage for abortion except in the case of rape or incest, but has not granted an exception for a policy that excludes abortion coverage in all cases. The court said, however, that plaintiffs did not allege that a plan with total exclusions had been submitted, or that an exemption for it had been rejected. WND has additional background. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Niederberger v. Guyll, 2017 U.S. Dist. LEXIS 135552 (WD AR, Aug. 24, 2017), an Arkansas federal district court dismissed an inmate's complaint about problems with this kosher meals.

In Troutman v. Miami Correctional Facility, 2017 U.S. Dist. LEXIS 136753 (ND IN, Aug. 25, 2017), an Indiana federal district court allowed a Muslim inmate to move ahead with complaints that he was not permitted to attend Friday worship services after the end of his work shift, that his firing from his prison job was motivated by religious and racial animus, and with certain retaliation claims.

In Sears v. Thomas, 2017 U.S. Dist. LEXIS 137998 (SD FL, Aug. 25, 2017), a Florida federal magistrate judge recommended dismissing an inmate's complaint that he was not permitted to keep a chain and cross purchased from a non-approved vendor.

In Diaz v. Wall, 2017 U.S. Dist. LEXIS 139421 (D RI, July 10, 2017), a Rhode Island federal magistrate judge recommended dismissing an inmate's complaint that he was not allowed to attend religious services while in segregation for narcotics trafficking or while in High Security.

In Williams v. New York State Office of Mental Health, 2017 U.S. Dist. LEXIS 140151 (ED NY, Aug. 29, 2017), a New York federal magistrate judge recommended dismissing complaints by plaintiff, who had been committed to a psychiatric center, that defendants interfered with exercise of his faith as an Orthodox Jew practicing holostic medicine, including by medication injections and refusing to allow him to attend worship services.

In Meeks v. Sorsi, 2017 U.S. Dist. LEXIS 140721 (D NV,Aug. 31, 2017), a Nevada federal district court allowed an inmate to move ahead with his claim that defendant refused to open cell doors and the activity room for early Ramadan prayer. Defendants argued that plaintiff had changed his religion from Muslim to Moorish Science Temple of America.

In Mares v. LePage, 2017 U.S. Dist. LEXIS 140796 (D CO, Aug. 31, 2017), a Colorado federal magistrate judge recommended dismissing because of pleading defects an inmate's complaint regarding impediments to his changing his religion to Judaism and receiving a kosher diet.

In Fletcher v. United States, 2017 U.S. Dist. LEXIS 141932 (D AZ, Aug. 30, 2017), an Arizona federal district court dismissed a complaint by an inmate who was a member of the Asatru religion that his right to a religious fast and to use ceremonial grounds were impeded.

In Washington v. Gilmore, 2017 U.S. Dist. LEXIS 142055 (WD PA, Aug. 31, 2017), a Pennsylvania federal magistrate judge recommended dismissing an inmate's claims of denial of access to religious literature. UPDATE: The court adopted the magistrate's recommendation at 2017 U.S. Dist. LEXIS 150754 (Sept. 18, 2017).

Civil Rights Suit By Catholic School Principal Dismissed Under Ministerial Exception Doctrine

In Nolen v. Diocese of Birmingham in Alabama, (ND AL, Sept. 1, 2017), an Alabama federal district court invoked the ministerial exception doctrine to dismiss a suit by a former principal of a Catholic elementary school who was fired from her position.  Plaintiff claimed she was fired for protecting Hispanic students and families from racial discrimination. Defendant claimed she was fired for embezzling funds.  After dismissing plaintiff's civil rights and breach of contract claims under the ministerial exception doctrine, the court dismissed her remaining state law defamation and interference with contract claims without prejudice so they could be refiled in state court.

Wedding Website Designer Has Standing To Challenge One of Colorado's Civil Rights Laws

In 303 Creative, LLC v. Elenis, (D CO, Sept. 1, 2017), a website designer challenged the constitutionality of two anti-discrimination provisions of Colorado law that protect, in part, against discrimination on the basis of sexual orientation.  One provision prohibits any place of public accommodation from withholding services on the basis of sexual orientation.  The second prohibits publishing of any communication that indicates services will be withheld on the basis of sexual orientation.  Plaintiff wants to promote and create wedding websites, but, because of her religious beliefs, not for same-sex couples. A Colorado federal district court held that plaintiff has standing to challenge the prohibition on publishing discriminatory communications since she plans to post a statement indicating that she will not create websites that violate her religious beliefs. However she does not have standing to challenge the ban on withholding services because a number of steps would need to occur before any enforcement of that provision against her would become likely.  The court also postponed any ruling on the merits pending the U.S. Supreme Court's decision on a similar issue in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. ADF issued a press release announcing the decision.

Trump Declares Sept. 3 As National Day of Prayer For Hurricane Victims

President Trump yesterday issued a Proclamation (full text) declaring Sept. 3 as a "National Day of Prayer for the Victims of Hurricane Harvey and for our National Response and Recovery Efforts." The Proclamation reads in part:

As response and recovery efforts continue, and as Americans provide much needed relief to the people of Texas and Louisiana, we are reminded of Scripture's promise that "God is our refuge and strength, a very present help in trouble."  Melania and I are grateful to everyone devoting time, effort, and resources to the ongoing response, recovery, and rebuilding efforts.  We invite all Americans to join us as we continue to pray for those who have lost family members or friends, and for those who are suffering in this time of crisis.

New Illinois Law Creates Scholarship Tax Credit Program That Includes Religious Schools

As reported by DNA Info,  yesterday, Illinois Gov. Bruce Rauner signed SB 1947 (full text), a law overhauling education funding in the state. The bill includes provisions for up to $75 million in tax credits for a Scholarship Tax Credit Program described by America magazine:

The program works by giving individuals or corporations who donate to scholarship-granting organizations a 75 percent tax credit on donations, worth up to $750,000. Under the law, up to $75 million in credits will be granted annually starting next fiscal year. The program will expire after five years unless lawmakers extend it.

Proponents say the program will help to provide scholarships for 6,000 to 10,000 students in religious and other private schools statewide. These scholarships must go to households with an annual income below 300 percent of the federal poverty level, or about $73,000 for a family of four.

[Thanks to Blog From the Capital for the lead.] 

Challenge To First Travel Ban Is Settled

A Settlement Agreement (full text) has been reached in Darweesh v. Trump, (ED NY, Aug. 31, 2017), one of the challenges to President Trump's now-superseded first travel ban.  As described by the New York Times:

Under the settlement agreement, the federal government is required to identify and send a letter to every individual who was improperly barred from entering the country under the original travel ban, providing a list of free legal services organizations that can help recipients obtain visas or other entry documents. Approval is not guaranteed, but the government agreed to process their applications in good faith.

Illinois Creates Muslim American Advisory Council

Last week, Illinois Gov. Bruce Rauner signed the Illinois Muslim American Advisory Council Act (full text).  The law creates a 21-member Council whose purpose is to advise the Governor and state legislature

on policy issues impacting Muslim Americans and immigrants; to advance the role and civic participation of Muslim Americans in this State; to enhance trade and cooperation between Muslim-majority countries and this State; and to build relationships with and disseminate information to, in cooperation with State agencies, boards, and commissions, Muslim American and immigrant communities across this State.

Texas Governor Declares Day of Prayer In Aftermath of Hurricane

In response to Hurricane Harvey and its aftermath, Texas Governor Greg Abbott yesterday issued a Proclamation (full text) declaring Sunday, Sept. 3 as a Day of Prayer in Texas.  The Proclamation reads in part:

I urge Texans of all faiths and religious traditions and backgrounds to offer prayers on that day for the safety of our first responders, public safety officers, and military personnel, healing of individuals, rebuilding of communities and the restoration of the entire region struck by this disaster.

Church, Not Town, Owns Cemetery

In First Congregational Church of Harwich v. Eldredge, (MA Land Ct., Aug. 18, 2017), the Massachusetts Land Court held that the First Congregational Church of Harwich rather than the Town of Harwich has title to a cemetery adjacent to the Church and also has title to the Memorial Garden in which cremated remains of Church member families are buried. The litigation was filed when the Church objected to the Town's plans to move to another area of the cemetery the cremated remains that are now buried above unmarked and unknown graves.  The court said in part:

[L]ike the Church, the Town and the Cemetery Commission are entrusted to honor the dead. They have a special duty to honor the remains of those deceased whose descendants can no longer be found. Their authority does not extend to the power to order the existing cremains disinterred, but they are authorized to care for and preserve the area of the Memorial Garden under which the unidentified graves are located. The Cemetery Commission is permitted to take actions necessary for the preservation of these grave sites and to ensure that they are not further disturbed, including the power to bar any further interring of cremains in the Memorial Garden directly over the unmarked graves. The Church may continue to inter cremains in other areas of the Cemetery over which there are no ancient burial grounds.

Cape Cod Chronicle has a more extensive report on the decision.

West Virginia County Settles Suit By Lesbian Couple Who Were Harassed By Clerk

Americans United announced yesterday that Gilmer County, West Virginia has agreed to settle a lawsuit brought by a lesbian couple who were harassed by a county clerk when they applied for a marriage license. Deputy Clerk Debbie Allen told the couple that they were an abomination to God. (See prior posting.) Under the settlement, the county apologized to the couple and issued a public statement admitting wrongdoing.  The County has also paid damages and has agreed to employee training to avoid future abuse.

Mattis Will Take Time Implementing Trump's Policy On Transgenders In Military

Yesterday Secretary of Defense Jim Mattis issued a Statement (full text) on the manner in which he intends to implement President Trump's recent Memorandum barring enlistment of transgender individuals in the military and calling for a study of how to deal with transgender individuals currently serving. Mattis said in part:

Our focus must always be on what is best for the military’s combat effectiveness leading to victory on the battlefield.  To that end, I will establish a panel of experts serving within the Departments of Defense and Homeland Security to provide advice and recommendations on the implementation of the president’s direction.  Panel members will bring mature experience, most notably in combat and deployed operations, and seasoned judgment to this task.  The panel will assemble and thoroughly analyze all pertinent data, quantifiable and non-quantifiable.... 

Once the panel reports its recommendations and following my consultation with the secretary of Homeland Security, I will provide my advice to the president concerning implementation of his policy direction.  In the interim, current policy with respect to currently serving members will remain in place. 

Preliminary Injunction Denied To Students Opposed To Transgender Bathroom Access Policy

In Doe v. Boyertown Area School District, (ED PA, Aug. 25, 2017), a Pennsylvania federal district court refused to issue a preliminary injunction to bar a school district from continuing its year-old practice of allowing transgender students to use the bathrooms and locker rooms corresponding to their gender identity. Plaintiffs are students who claim that their right to privacy, as well as Title IX, are violated by the school's policy. According to the court:

At bottom, the plaintiffs are opposed to the mere presence of transgender students in locker rooms or bathrooms with them because they designate them as members of the opposite sex and note that, inter alia, society has historically separated bathrooms and locker rooms on the basis of biological sex to preserve the privacy of individuals from members of the opposite biological sex.

In a 142-page opinion the court held that plaintiffs had no shown that they are likely to succeed on the merits, saying in part:

The plaintiffs have not identified and this court has not located any court that has recognized a constitutional right of privacy as broadly defined by the plaintiffs.... 

WFMZ-TV News reports that an appeal is planned.

8th Circuit: OK To Ban Religious Leafleting On Plaza of Sports Arena

In Ball v. City of Lincoln, Nebraska, (8th Cir., Aug. 29, 2017), the U.S. 8th Circuit Court of Appeals held that the city did not infringe the free speech rights of a city resident who insisted on handing out Christian religious literature in the plaza area of a municipal sports arena to those attending high school basketball tournaments. A majority of the 3-judge panel held that the entire plaza area is a non-public forum, and the policy barring leafleting in that area is reasonable. Judge Melloy dissented in part, concluding that a portion of the plaza area is a traditional public forum. Lincoln Journal-Star reports on the decision.

An Unusual Prisoner Case Finds NGE Should Be Held To Be A Religion

In a somewhat surprising prisoner free exercise decision this week, a Virginia federal district court held that the Virginia Department of Corrections violated RLUIPA and the First Amendment when it refused to recognize the Nations of Gods and Earths (NGE) as a religion and instead designated it a gang or "Security Threat Group."  In Coward v. Robinson, (ED VA, Aug. 28, 2017), the court in a 47-page opinion citing what was clearly an extensive evidentiary record concluded that "there is insufficient evidence in this record to conclude that the NGE is a violent, racially supremacist gang."  It went on: "Even if the Department could show that designating the NGE as a gang subject to a zero
tolerance policy serves a compelling interest, it cannot demonstrate that its policies are the least restrictive means of furthering that interest."

A number of things make this case interesting. It was initially filed in 2010. Appeals in the case (sub. nom. Coward v. Jabe) wound their way up to the 4th Circuit three separate times.  In one of its opinions, the 4th Circuit held that even though it had held NGE is not a religion in an unrelated 2012 case, that decision was based on the evidence at trial, and did not mean that NGE would not found to be a religion in other cases.  Finally, unlike the vast majority of prisoner cases which are argued pro se, here plaintiff in the proceedings leading to this week's decision had high power counsel.  Plaintiff was represented by two lawyers from Kirkland & Ellis, one of whom had previously been a law clerk for Supreme Court Chief Justice John Roberts.

7th Circuit: Illinois May Apply Education Laws To Bible Colleges

In Illinois Bible Colleges Association v. Anderson, (7th Cir., Aug. 29, 2017), the U.S. 7th Circuit Court of Appeals rejected challenges to three Illinois statutes that require all colleges to obtain state approval before they may issue degrees.  Plaintiffs claimed that applying these statutes to Bible Colleges violates their 1st and 14th Amendment rights. The Court disagreed, saying;

[Plaintiffs] first argue the Illinois regulations violate the Establishment Clause by entangling the government with their religious operations. However, the plaintiffs have not sought ... approval from the State under the applicable statutes. Therefore, there is no basis to believe that the regulations would infringe on their religious beliefs or practices or would unnecessarily entangle the government in religion.... Likewise, the plaintiffs’ Free Exercise claim fails because the statutes are neutral laws of general application and apply equally to secular and religious institutions. The plaintiffs’ Equal Protection claim fares no better: While the state statutes exempt older educational institutions..., when no improper discrimination is involved, the government may include a grandfather clause in legislation without violating the guarantee of Equal Protection. Finally, the student-plaintiff alleges a violation of his right to practice a profession of his choice. But the regulations do not impact that choice. Rather, they merely determine whether he may obtain a degree from specific post-secondary institutions.

French Court Says School Must Offer Muslim Children An Alternative To Pork At Lunch

According to The Guardian yesterday, in France a trial court judge has told local officials that they must re-institute a policy of offering an alternative to pork meals for school lunches. A court in Dijon told officials in Chalon-sur-Saône that a refusal to offer an alternative for Muslim children is not "in keeping with the spirit of the international convention on the rights of children" nor "in the interests of the children." The the mayor of Chalon-sur-Saône, a member of the right wing Les Républicains party, argued that by requiring all children to eat together, the city was upholding the French Republic’s principle of laïcité  (secularism). The city plans an appeal.

Religious Freedom and Holocaust Envoys Escape State Department Cuts

In a move applauded by Senate Foreign Relations Chairman Bob Corker, Secretary of State Rex Tillerson has notified the Senate that he plans to pare down the number of Special Envoys in the State Department. According to CNN, Tillerson will eliminate or downgrade as many as 36 of the nearly 70 special envoy spots. However three special envoy offices will be expanded: those dealing with religious freedom, Holocaust issues and HIV/AIDS.

UPDATE: Here is the full text of Sec. Tillerson's letter to Sen. Corker. It details some of the changes as follows:

The Ambassador-at-Large for International Religious Freedom (IRF) will continue to be an ambassador-level position confirmed by the U.S. Senate, and will be organized under and report to the Under Secretary for Civilian Security, Democracy, and Human Rights (J). Additionally, IRF will assume the functions and staff of the U.S. Special Representative for Religion and Global Affairs, U.S. Special Representative to Muslim Communities, U.S. Special Envoy to the Organization of Islamic Cooperation, and Special Advisor for Religious Minorities in the Near East and South/Central Asia.

Suit Challenges Trump Ban On Transgender Individuals In Military

Yesterday three individuals and two advocacy groups filed a federal lawsuit challenging the constitutionality of the Trump Administration's recently implemented policy on transgender individuals serving in the military.  The complaint (full text) in Karnoski v. Trump, (WD WA, filed 8/28/2017) summarizes the lawsuit:

5. In the evening of Friday, August 25, 2017, President Trump followed up on his tweets and implemented an official federal policy of discrimination against transgender individuals in military service .... Among other things, President Trump has mandated that the U.S. military return to its earlier policy and practice of discrimination against transgender people, including by discharging them. He has also maintained and extended the current bar on accession into the military of individuals known to be transgender.... Last, he has singled out for adverse treatment the health care needs of transgender service members.

6. Dripping with animus, the Ban and the current accessions bar violate the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment. They are unsupported by any compelling, important, or even rational justification.

Lambda Legal announced the filing of the lawsuit.

Recent Articles of Interest

From SSRN:

• David W. Opderbeck, Lex Machina Non Est: A Response to Mark Lemley's 'Faith-Based Intellectual Property', (Seton Hall University School of Law, Legal Studies Research Paper Series, 2017).
• Steven A. Ramirez, Social Justice and Capitalism: An Assessment of the Teachings of Pope Francis from a Law and Macroeconomics Perspective, (August 1, 2017).
• Richard K. Sherwin, Vico's Providence Today, (August 23, 2017).
• Julia Leininger, It's Institutions, Not Theology! Muslim Actors’ Influence on Democratization in Mali, (Politics and Religion, Volume 9, Issue 4 December 2016 , pp. 815-842).
• Uladzislau Belavusau, Hate Speech, (Max Planck Encyclopedia of Comparative Constitutional Law, Oxford University Press, 2017 Forthcoming).
• Magda Slabbert, Pregnancy Loss: A Burial or Medical Waste, (Journal of Contemporary Roman-Dutch Law, Vol. 80, p. 102-112, 2017).
• Jaber Seyvanizad, Islamic International Law Concerning Law of Treaties, (International Conference on Law, Political Science and Islamic Instructions, Tehran, 2017).
• Marina Nehme, Australian Charities and Not-for-Profit Commission: Enforcement Tools and Regulatory Approaches, (Australian Business Law Review Vol. 45, 79-107 (2017)).

From SmartCILP:

• Jamil Ammar & Songhua Xu, Yesterday's Ideology Meets Today's Technology: A Strategic Prevention Framework for Curbing the Use of Social Media by Radical Jihadists, 26 Albany Law Journal of Science & Technology 235-322 (2016).