Religion Clause

Monday, October 16, 2017

Obscene Gesture Directed At Pastor Cannot Support Disorderly Conduct Conviction

In Freeman v. State, (GA Sup. Ct., Oct. 2, 2017), the Georgia Supreme Court held that a congregant could not constitutionally be convicted of disorderly conduct for standing up in the back of the church, raising his middle finger in the air and staring angrily at the pastor. Even though the pastor testified that he felt afraid for his safety at the time, the state Supreme Court held that defendant's raised middle finger constituted constitutionally protected expression. It said in part:

Because there was no showing here that Freeman’s act of silently raising his middle finger from the back of the church during the church service constituted “fighting words” or a “true threat” that would amount to a tumultuous act, his conviction for disorderly conduct under OCGA § 16-11-39 (a) (1) cannot stand.

Atlanta Journal Constitution reported on the decision. [Thanks to TaxProf blog via Steven H. Sholk for the lead.]

Church Charges Zoning Denial Stemmed From Anti-African Discrimination

Mwakilishi reports on a lawsuit filed Oct. 13 in a Maryland federal district court by the Jesus Christ is the Answer Ministries challenging Baltimore County's refusal to rezone residential property purchased by the congregation for use as a church. The church's minister is a native of Kenya and much of the congregation is African. The suit charges that the zoning denial stemmed from opposition by neighbors to those of African heritage, in violation of the 1st and 14th Amendments as well as RLUIPA.

Cert Petitions Filed In Two Religious Liberty Cases

Last week, petitions for certiorari were filed with the U.S. Supreme Court in two cases of interest. On Oct. 10, a cert. petition (full text) was filed in Barber v. Bryant. In the case, 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. (See prior posting). An en banc rehearing was denied by a vote of 12-2. (See prior posting.) Washington Blade reports on the petition for review.

On Oct. 12, a petition for certiorari (full text) was filed in Rowan County, North Carolina v. Lund. In the case, the U.S. 4th Circuit Court of appeals sitting en banc held by a 10-5 vote that the prayer practices of the Rowan County Board of Commissioners, in which commissioners themselves deliver invocations, violate the Establishment Clause. (See prior posting.) WBTV reports on the filing of the cert. petition.

Sunday, October 15, 2017

Recent Prisoner Free Exercise Cases

In Entler v. Gregoire, (9th Cir., Oct. 6, 2017), the 9th Circuit held that an inmate who was sanctioned for threatening to sue after he was given a job assignment inconsistent with his religious beliefs has a valid retaliation claim.

In Finley v. Cox, (9th Cir., Oct. 6, 2017), the 9th Circuit upheld a trial court's dismissal of complaints by inmates that they were offered a common fare religious diet instead of pre-packaged kosher meals.

In Michalski v. Semple, 2017 U.S. Dist. LEXIS 166524 (D CT, Oct. 6, 2017), a Connecticut federal district court allowed Native American inmates to move ahead with their complaint that defendants suspended their religious services for several months, denied collective smudging, restricted access to the sweat lodge, denied adequate ceremonial foods, and provided an unequal amount of chaplains, supplies, literature and educational opportunities.

In Hamrick v. Baird, 2017 U.S. Dist. LEXIS 168197 (SD IL, Oct. 11, 2017), an Illinois federal district court allowed an inmate to move ahead with a damage claim against a former warden for restrictions on his engaging in daily group prayers, but suggested additional briefing on whether damages are available under RFRA.

In Shorter v. Romero, 2017 U.S. Dist. LEXIS 168920 (SD FL, Oct. 11, 2017), a Florida federal magistrate judge recommended allowing an inmate to move ahead with his claim that he was not allowed to attend Christian religious services.

In Nible v. Fink, 2017 U.S. Dist. LEXIS 170015 (SD CA, Oct. 12, 2017), a California federal magistrate judge recommended dismissing an inmate's claims against certain defendants growing out of the refusal to allow him to receive a package containing runes that he had ordered.

Texas Engaged In Viewpoint Discrimination In Removal of Bill of Rights Nativity Display

In Freedom From Religion Foundation, Inc. v. Abbott, (WD TX, Oct. 13, 2017), a Texas federal district court held that Texas Governor Greg Abbott and the Texas State Preservation Board violated the free speech rights of Freedom From Religion Foundation when, at the governor's order, FFRF's Bill of Rights nativity display was removed from the state capitol rotunda where it had been erected under a limited public forum policy. (See prior related posting.) The governor claimed that the display did not serve a "public purpose" because of its mocking and satirical tone. The court held that whether the exhibit was removed because of its satiric tone or because of its non-theistic point of view, either motive constitutes impermissible viewpoint discrimination.

The court went on to deny summary judgment to defendants on FFRF's Establishment Clause claim because material questions of fact remain as to defendants' purpose in excluding the exhibit. It rejected the governor's claim of qualified immunity as to the free speech claim, but granted it as to the Establishment Clause claim. Friendly Atheist blog has more on the decision.

Saturday, October 14, 2017

New Delhi Reacts To Diwali Fireworks Ban

Today's New York Times reports on the impact in New Delhi of a ruling by India's Supreme Court reinstating a ban, motivated by environmental concerns, on the sale of fireworks in the National Capital Region. In September, the court had temporarily suspended the ban. Traditionally the Hindu festival of Diwali-- celebrated this Thursday-- has been marked by extensive fireworks. However last year the fireworks led to ten days of dangerous pollution in New Delhi and led to a temporary closing of public primary schools.

Trump Addresses Values Voter Summit

Yesterday, President Trump gave a 30-minute address (full text) to the 2017 Values Voter Summit in Washington, D.C., becoming the first sitting President to address the annual event. His remarks focused largely on themes of faith and of religious liberty. Here are some excerpts:

George Washington said that “religion and morality are indispensable” to America’s happiness, really, prosperity and totally to its success. It is our faith and our values that inspires us to give with charity, to act with courage, and to sacrifice for what we know is right.

The American Founders invoked our Creator four times in the Declaration of Independence -- four times. (Applause.) How times have changed. But you know what, now they're changing back again. Just remember that. (Applause.)

Benjamin Franklin reminded his colleagues at the Constitutional Convention to begin by bowing their heads in prayer.

Religious liberty is enshrined in the very first amendment of the Bill of Rights. And we all pledge allegiance to -- very, very beautifully -- “one nation under God.” (Applause.)

This is America’s heritage, a country that never forgets that we are all -- all, every one of us -- made by the same God in Heaven. (Applause.) ....

We have also taken action to protect the conscience rights of groups like the Little Sisters of the Poor. You know what they went through. (Applause.) What they went through -- they were going through hell. And then all of the sudden they won. They said, how did that happen? (Laughter.)

We want to really point out that the Little Sisters of the Poor and other people of faith, they live by a beautiful calling, and we will not let bureaucrats take away that calling or take away their rights. (Applause.)

We are stopping cold the attacks on Judeo-Christian values. (Applause.) Thank you. Thank you very much. And something I've said so much during the last two years, but I'll say it again as we approach the end of the year. You know, we're getting near that beautiful Christmas season that people don't talk about anymore. (Laughter.) They don't use the word "Christmas" because it's not politically correct. You go to department stores, and they'll say, "Happy New Year" and they'll say other things. And it will be red, they'll have it painted, but they don't say it. Well, guess what? We're saying “Merry Christmas” again. (Applause.)

House of Representatives Ban On Secular Invocations Is Constitutional

In Barker v. Conroy, (D DC, Oct. 11, 2017), the D.C. federal district court rejected challenges to rules of the U.S. House of Representatives which do not allow an atheist to deliver a secular invocation as a guest chaplain. Plaintiff who is co-president of the Freedom From Religion Foundation challenged the practice after his request for inclusion as a guest chaplain was denied. The court rejected plaintiff's Establishment Clause, Equal Protection Clause and RFRA claims, saying in part:

Despite Mr. Barker’s repeated attempts to characterize his claims as not challenging the constitutionality of legislative prayer, the reality is that his request to open the House with a secular invocation, which resulted in the denial of his request to serve as a guest chaplain, was a challenge to the ability of Congress to open with a prayer...

The court also rejected a claim that the policy violates the constitutional prohibition on religious tests for any "office or public trust under the United States," concluding that the position of guest chaplain is not an office or position of public trust.

Court Rejects Challenges To Policies Protecting Muslim Women Booking Photos

In Schlussel v. City of Dearborn Heights, (ED MI, Oct. 11, 2017), a Michigan federal district court rejected various challenges by a journalist to a partial denial of her state Freedom of Information Act request for booking photos and videos that were taken of a Muslim woman with her hijab removed. The city denied the request under the state FOIA's privacy exception. In the meantime the city had modified its booking procedures-- in response to litigation-- to allow women to continue to wear their hijabs or burkas in booking photos.

The court rejected claims by plaintiff, who was female and Jewish, that her equal protection rights were violated because the photos and videos in question had been released to a Muslim male who was the Muslim woman's lawyer. The court also rejected a claim that the city's new booking policy violates the Establishment Clause because it applies only to Muslim women.

Ecclesiastical Abstention Requires Dismissal of Suit Over Student's Forced Withdrawal From High School

In In re the Episcopal School of Dallas, Inc., (TX App, Oct. 11, 2017), a Texas state appellate court held that the ecclesiastical abstention doctrine applies to a faith-based school, even though the school was not owned or operated by a church, saying in part:

[T]he Does cite no authority for the premise that the ecclesiastical abstention doctrine requires a showing that an institution’s “primary purpose” is religion. More importantly, asking this Court to examine and compare the contours of different religions or measure the internal application of Episcopal precepts to the school’s policies or its conduct here seeks to have us engage in the exact analysis the First Amendment precludes.

It ordered the trial court to dismiss for lack of jurisdiction a suit by a high school student who was forced to withdraw from school because of marijuana use during his lunch hour and his conduct surrounding investigation of the incident. the court concluded:

The Does’ claims all concern a faith-based organization’s internal affairs, governance, administration, membership, or disciplinary procedures and are protected religious decisions. Thus, the Does’ suit has no secular aspect for the courts to consider.

Wednesday, October 11, 2017

Pastor's Wife Sues Over Kansas Israel Anti-Boycott Law

The ACLU today filed suit in federal district court in Kansas on behalf of a Mennonite woman challenging a Kansas statute that allows the state to enter contracts with companies or individuals only if they certify that they are not currently engaged in a boycott of Israel. The complaint (full text) in Koontz v. Watson, (D KA, filed 10/11/2017), explains that Esther Koontz, the wife of a Mennonite pastor, following the recommendation in a resolution passed by the Mennonite Church USA is engaged in a boycott of consumer goods and services offered by Israeli companies and international companies operating in Israeli settlements in the occupied Palestinian territories. The Kansas State Department of Education refuses to sign a contract with Koontz for her to serve as a teacher trainer in its Math & Science Partnerships program because she refuses to sign a boycott certification. The complaint alleges that this violates her free speech and associational rights, amounts to viewpoint discrimination, and violates the equal protection clause of the 14th Amendment. The ACLU has also submitted a Memorandum (full text) in support of Koontz's motion for a preliminary injunction. ACLU issued a press release announcing the filing of the lawsuit.

House Holds Hearings on International Religious Freedom

The House Oversight and Government Reform Committee this morning held hearings on The U.S. Government's Role in Protecting International Religious Freedom. The prepared testimony of four witnesses who testified is available on the Committee's website.

Court Will Not Enjoin Medical Marijuana Limits In Suit By Minister

In Harris v. City of Clearlake, (ND CA, Oct. 10, 2017), a California federal district court refused to issue a preliminary injunction to prevent the city of Clearlake, California from enforcing its regulations on growing of medical marijuana against a church that cultivated cannabis for sacramental purposes. The court denied the claim by the church itself because it was not represented by an attorney, and the church's minister who filed the case pro se cannot represent the church since he is not a member of the bar. As to the claim by the church's minister on his own behalf, the court concluded that the city's regulations are a neutral law of general applicability, and that the minister failed to show that enforcement infringes on his right to use marijuana as a religious sacrament:

[T]he ordinance permits Harris to cultivate six living marijuana plants subject to permitting, enclosure and spatial restrictions. Harris has not shown that six plants are insufficient to meet his personal religious needs, or that he cannot obtain marijuana plants to satisfy his religious needs through other means.

Supreme Court Hears Oral Arguments In Alien Tort Statute Case

Today the U.S. Supreme Court heard oral arguments (full transcript of arguments) in Jesner v. Arab Bank, PLC. At issue in the case is whether corporations may ever be held liable under the Alien Tort Statute, which allows aliens to sue in U.S. courts for a tort committed in violation of the law of nations or a treaty of the United States. Circuit Courts are split on the issue. The underlying claims in this lawsuit are described in the petition for certiorari:

Petitioners are victims of terrorist attacks ... that took place between 1995 and 2005 in Israel, the West Bank, and Gaza. In five separate lawsuits ... they alleged that Arab Bank knowingly and intentionally financed this terrorism through activities in New York that led to the suicide bombings and other attacks that caused petitioners’ injuries.... Petitioners also allege that the Bank, through the involvement of its New York branch, knowingly distributed millions of dollars to terrorists and their families on behalf of terrorist front groups.

USA Today reports on today's oral arguments.

Supreme Court Dismisses One Travel Ban Case As Moot

In an Order (full text) issued yesterday, the U.S. Supreme Court dismissed as moot Trump v. International Refugee Assistance Project, the challenge to President Trump's second travel ban. As explained by a USA Today report:

"We express no view on the merits," the justices said in a one-page order.

The decision effectively wipes the record clean in the U.S. Court of Appeals for the 4th Circuit, one of two federal appeals courts that had struck down major portions of Trump's travel ban. That case began in Maryland.

A separate case from the 9th Circuit, based in California, remains pending because it includes a ban on refugees worldwide that won't expire until later this month. But the Supreme Court is likely to ditch that case, which began in Hawaii, as well....

Justice Sotomayor dissented, saying that instead she would dismiss the writ of certiorari as improvidently granted. This would have maintained the 4th Circuit's opinion as precedent.

Vermont Supreme Court: Grant For Church Repairs Is Likely OK

In Taylor v. Town of Cabot, (VT Sup. Ct., Oct. 6, 2017), the Vermont Supreme Court vacated a preliminary injunction that a trial court had issued to block a municipal grant to a historic church for repairs to its building. The grant came from funds that originated with the federal government but now belonged to the town to use consistent with federal regulations. The court held that plaintiffs have municipal taxpayer standing to challenge the grant under the state constitution's prohibition on compelled support of any place of worship (Chapter I, Article Three). In remanding the case for further proceedings, the court said in part:

The fact that the ultimate recipient of these funds is a church does not itself establish a violation of the Compelled Support Clause; the critical question is whether the funds will support worship. Chittenden Town Sch. Dist., 169 Vt. at 325, 738 A.2d at 550. In fact, denying the UCC secular benefits available to other like organizations might raise concerns under the Free Exercise Clause of the United States Constitution. To meet these concerns, plaintiffs will have to demonstrate that painting the church building and assessing its sills is more like funding devotional training for future clergy, as in Locke, than paying for a new playground surface on church property, as in Trinity Lutheran. Specified repairs to the church building itself admittedly fall somewhere between these two poles. In making their case, plaintiffs must persuade the court either that the Compelled Support Clause categorically precludes the use of public funds to pay for any repairs to a building that serves as a place of worship, without regard to the breadth and neutrality of the program pursuant to which the funding is provided, or that the specific repairs funded under this grant are prohibited. The first proposition is legally questionable; the second is not supported by the record.

Tuesday, October 10, 2017

Another Suit Challenges Expanded Contraceptive Mandate Religious Exemptions

As previously reported, last week the Trump Administration issued interim final rules expanding religious and conscience exemptions from the Affordable Care Act contraceptive coverage mandate. The ACLU immediately filed suit challenging the new rules. Now the state of Washington has also filed suit challenging the expanded exemptions. The complaint (full text) in State of Washington v. Trump, (WD WA, filed 10/9/2017), contends in part that the rules violate the Establishment Clause:

The Religious IFRs [Interim Final Rules] and the corresponding portion of the 2017 Updated Guidelines are intended to and have the effect of advancing, imposing, and endorsing certain religious interests. For example, they permit a for-profit business to impose the costs of its owners’ anti-contraception beliefs on employees (and their dependents). Based on the religious beliefs of an employer or institution of higher education, the Religious IFRs deny women access to contraceptive coverage that the ACA would otherwise secure.

The suit also alleges that the rules violate the equal protection component of the 5th Amendment and violate the Administrative Procedure Act. Washington AG Bob Ferguson issued a press release announcing the filing of the lawsuit.

Suit Challenges Scope of Religious Exemption From Vaccination Requirement

Sunday's Kansas City Star reports on a lawsuit filed recently by the grandparents of a 2-year old objecting on religious grounds to the vaccination of their grandson. While Kansas provides a religious exemption from the vaccination requirement, the complication here is that the toddler is in temporary custody of the Kansas Department for Children and Families, but has been placed in foster care with his grandparents. This gives the state the right to decide on vaccination, even though the child's grandmother has filed a religious exemption statement with the school. The suit claims that taking the decision away from the family is a violation of the right to privacy. It also contends that the Kansas exemption statute is vague and imposes an unconstitutional religious test. The statute requires a parent or guardian to certify "that the child is an adherent of a religious denomination whose religious teachings are opposed to such tests or inoculations." Apparently the state requires the parent or guardian to name the specific religious denomination and its specific doctrine. The grandparents say that it is impossible for a two year old child to be "an adherent of a religious denomination."

Free Exercise Objections To Forced Hospital Admission on Sabbath Are Dismissed

In Davenport v. Pottstown Hospital Company, LLC, (ED PA, Oct. 6, 2017), a Pennsylvania federal district court dismissed on various grounds the free exercise claims in a lawsuit by a Jewish plaintiff who on his Sabbath, in violation of his religious beliefs, was transported to a hospital by vehicle and coerced into signing voluntary commitment documents. Also at the hospital his request for Passover kosher meals was ignored. Some of the defendants were dismissed on qualified immunity grounds; others were dismissed on state actor and other grounds. Plaintiff was permitted to move ahead on his claim for intentional infliction of emotional distress.

Monday, October 09, 2017

FOIA Lawsuit Seeks Information On Case-By-Case Waiver of Travel Ban

Last week a Freedom of Information Act lawsuit was filed by three advocacy groups-- Muslim Advocates, Americans United for Separation of Church and State, and Southern Poverty Law Center-- seeking information on the waiver provisions of President Trump's second travel ban executive order. The complaint (full text) in Muslim Advocates v. U.S. Department of State, (D DC, filed 10/5/2017) reads in part:

On June 27, 2017, Plaintiffs submitted a FOIA request ... seeking specific information related to the waiver provisions of Executive Order 13,780 ... allowing the Commissioner of CBP to determine on a case-by-case basis whether a national from one of the six majority Muslim countries identified in the Second Executive Order may gain entry into the country. These documents and information are critical to Plaintiffs’ ability to assist and advise affected travelers, and to understand the scope of the Second Executive Order’s waiver provision and the extent to which the government has implemented or is implementing its policies in a discriminatory or unconstitutional manner.

President Trump's Sept. 24 Proclamation revising the travel ban contains a similar waiver provision. Muslim Advocates issued a press release announcing the filing of the lawsuit.

Court Says Tax Code's Parsonage Allowance Is Unconstitutional

In Gaylor v. Mnuchin, (WD WI, Oct. 6, 2017), a Wisconsin federal district court held that the parsonage allowance provision in Sec. 107(2) of the Internal Revenue Code violates the Establishment Clause. That section allows clergy to exclude from income the rental allowance they receive that is used to rent or provide a home. In a 2013 decision, the same court reached a similar conclusion, but was reversed on appeal on standing grounds. Plaintiffs cured those standing issues in the present case. The court summarized it holding:

any reasonable observer would conclude that the purpose and effect of § 107(2) is to provide financial assistance to one group of religious employees without any consideration to the secular employees who are similarly situated to ministers. Under current law, that type of provision violates the establishment clause.

As a remedy, however, the court issued only a declaratory judgment, and gave the parties the opportunity to file supplemental briefs on additional remedies such as a tax refund to plaintiffs who were taxed on their housing allowances from their employer (the Freedom From Religion Foundation), or an injunction of some sort. FFRF issued a press release announcing the decision. [Thanks to Bob Ritter for the lead.]

Claim of Fraudulent Luring Into Conversion To Christianity Dismissed on Ecclesiastical Abstention Grounds

In Rymer v. Lemaster, (MD TN, Oct. 4, 2017), a Tennessee federal district court adopted a federal magistrate's recommendation of Aug. 30, 2017 (full text) and dismissed on ecclesiastical abstention grounds a suit by a college student against a Baptist minister. Student Lincoln Rymer claimed that Roger Oldham who was acting as his spiritual adviser wrongfully obtained student information about him, and used that information and an attractive female student to lure him into converting to Christianity. Plaintiff claimed over $15.7 million in damages flowing from the conversion.

Sunday, October 08, 2017

Recent Prisoner Free Exercise Cases

In Williams v. Blood, 2017 U.S. Dist. LEXIS 160062 (D UT, Sept. 27, 2017), a Utah federal district court dismissed an inmate's clam of retaliation for his complaining about his religious diet. The court agreed to appoint counsel for his complaint regarding ending of Islamic congregational meetings when no approved outside volunteer was available.

In Womack v. Perry, 2017 U.S. Dist. LEXIS 160271 (ED CA, Sept. 27, 2017), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that defendant cancelled bi-weekly Muslim services in one location because of a disagreement with an inmate there.

In Faver v. Clarke, 2017 U.S. Dist. LEXIS 160857 (WD VA, Sept. 29, 2017), a Virginia federal district court allowed a Muslim inmate to move ahead with RLUPA claims regarding wearing of a beard, the source from which he can acquire prayer oils, and his religious diet. His 1st Amendment claims were dismissed.

In Hall v. Helder, 2017 U.S. Dist. LEXIS 161626 (WD AR, Sept. 29, 2017), an Arkansas federal district court dismissed an inmate's complaint that there had been a 2-week delay in furnishing him a religious diet.

In Shabazz v. Lokey, 2017 U.S. Dist. LEXIS 162270 (WD VA, Sept. 30, 2017), a Virginia federal district court after a bench trial dismissed an inmate's suit charging confiscation of his Nation of Islam materials. Officials had mistaken the materials for gang-related Nation of Gods and Earth materials.

In Corley v. City of New York, 2017 U.S. Dist. LEXIS 162761 (SD NY, Sept. 28, 2017), a New York federal district court allowed an inmate to move ahead with his complaint that he was prevented from acquiring a "Jewish ID" that would give his access to kosher meals, and was denied kosher meals once he received that ID.

In Cary v. Phol, 2017 U.S. Dist. LEXIS 163128 (WD MI, Oct. 3, 2017), a Michigan a Michigan federal district court permitted a Native american inmate to move ahead with his complaint that he was not allowed to wear his medicine bag for a 10-day period.

In Cagle v. Ryan, 2017 U.S. Dist. LEXIS 165387 (D AZ, Oct. 4, 2017), an Arizona federal magistrate judge (while dismissing a large number of plaintiff's claims) allowed an inmate who had converted from Christianity to Islam to move ahead with his complaint about the denial of a halal diet for some 9 months. UPDATE: The district court adopted the magistrate's recommendations at 2017 U.S. Dist. LEXIS 179944, Oct. 30, 2017.

In Sariaslan v. Rackley, 2017 U.S. Dist. LEXIS 165681 (ED CA, Oct. 4, 2017), a California federal magistrate judge, in a case on remand from the 9th Circuit, gave a Muslim inmate 30 days to file an adequate amended complaint setting out of his allegations that he purchased raisins, honey, and dates for his Ramadan meal, but never received them.

In O'Carroll v. Lanigan, 2017 U.S. Dist. LEXIS 165788 (D NJ, Oct. 6, 2017), a New Jersey federal district court permitted an inmate who practiced Odinism (Asatru) to move ahead with his complaint that while Christian and Muslim inmates are allowed to wear metal medallions, Odinist inmates are not permitted Thor's Hammer medallions made of metal. UPDATE: The same court issued essentially identical opinions in a similar claims by different inmates, in Scaffidi v. Lanigan, 2017 U.S. Dist. LEXIS 166012 (D NJ, Oct. 5, 2017), and Halstead v. Hughes, 2017 U.S. Dist. LEXIS 166607 (D NJ, Oct. 5, 2017).

Court Dismisses Challenge To "In God We Trust" On Currency

In Mayle v. United States, (ND IL, Sept. 29, 2017), an Illinois federal district court rejected challenges by a Satanist to the use of "In God We Trust" on U.S. currency. The court rejected free exercise and compelled speech challenges, as well as equal protection and Congressional power claims.

Saturday, October 07, 2017

Can Publicly Held Corporations Have Religion But Not Morals?

As previously reported, yesterday the Trump Administration issued Interim Final Rules that expand exemptions from the Affordable Care Act contraceptive coverage mandate. The Interim Rules create exemptions for entities with religious or moral objections, but create an interesting distinction between business entities asserting religious objections and those asserting moral ones. A religious objector to furnishing contraceptive coverage may be either "A closely- held for-profit entity," or "A for-profit entity that is not closely held." (Release at pg. 160-161). On the other hand, the new exemption for businesses with moral objections to furnishing contraceptive coverage includes only "A for-profit entity that has no publicly traded ownership interests (for this purpose, a publicly traded ownership interest is any class of common equity securities required to be registered under section 12 of the Securities Exchange Act of 1934)." (Release at pg. 98). The Release (at pp. 51-56), in a lengthy explanation, asks for comments during the comment period on whether this distinction should be retained, saying in part:

The fact that many closely held for-profit entities brought challenges to the Mandate has led us to offer protections that would include publicly traded entities with religious objections to the Mandate if such entities exist. But the combined lack of any lawsuits challenging the Mandate by for-profit entities with non-religious moral convictions, and of any lawsuits by any kind of publicly traded entity, leads us to not extend the expanded exemption in these interim final rules to publicly traded entities, but rather to invite public comment on whether to do so....

Trump Administration Expands Contraceptive Mandate Exemptions For Religious and Moral Objectors

Yesterday the Trump Administration issued Interim Final Rules (effective immediately) that expand exemptions from the Affordable Care Act contraceptive coverage mandate for organizations, colleges and businesses that have religious or moral objections to furnishing coverage for employees (or enrolled students), as well as for employees who object to having such coverage. The new Interim rules were issued in two releases, one covering religious exemptions (full text), and the second covering moral objections (full text). A press release from the Department of Health and Human Service explains the new rules:

The Departments of Health and Human Services, Treasury, and Labor are announcing two companion interim final rules that provide conscience protections to Americans who have a religious or moral objection to paying for health insurance that covers contraceptive/ abortifacient services. Obamacare-compliant health insurance plans are required to cover “preventive services,” a term defined through regulation. Under the existing regulatory requirements created by the previous administration, employers, unless they qualify for an exemption, must offer health insurance that covers all FDA-approved contraception, which includes medications and devices that may act as abortifacients as well sterilization procedures.

Under the first of two companion rules released today, entities that have sincerely held religious beliefs against providing such services would no longer be required to do so. The second rule applies the same protections to organizations and small businesses that have objections on the basis of moral conviction which is not based in any particular religious belief....

Key Facts about today’s interim final rules:

The regulations exempt entities only from providing an otherwise mandated item to which they object on the basis of their religious beliefs or moral conviction.

The regulation leaves in place preventive services coverage guidelines where no religious or moral objection exists – meaning that out of millions of employers in the U.S., these exemptions may impact only about 200 entities, the number that that filed lawsuits based on religious or moral objections....

The regulations leave in place government programs that provide free or subsidized contraceptive coverage to low income women, such as through community health centers....

Comments on the Interim Final Rules are due by Dec. 5.

The ACLU immediately announced that it was filing suit to challenge the Interim Rules. The complaint (full text) in ACLU v. Wright, (ND CA, filed 10/6/2017) contends that the Interim Rules violate the Establishment Clause as well as the equal protection components of the 5th Amendment, and the Administrative Procedure Act.

Attorney General Issues Guidance On Protection of Religious Liberty

Yesterday, Attorney General Jeff Sessions issued a 25-page Memorandum (full text) setting out the Justice Department's understanding of the scope of religious liberty protections. In a covering document, Sessions directed that the interpretive guidance in the Memorandum immediately be incorporated by the Department and U.S. Attorneys in all litigation, interpretative guidance and grant administration. Among other things, the Memorandum provides:

RFRA applies even where a religious adherent seeks an exemption from a legal obligation requiring the adherent to confer benefits on third parties.

Sessions' Memorandum specifically endorses the Clinton Administration's 1997 Guidelines on Religious Exercise and Religious Expression in the Federal Workplace , saying:

The Clinton Guidelines have the force of an Executive Order, and they also provide useful guidance to private employers about ways in which religious observance and practice can reasonably be accommodated in the workplace.

AP reports on the Attorney General's Memorandum.saying that it "undercuts federal protections for LGBT people."

Defense Department Drops Training Material References To Southern Poverty Law Center

As previously reported, In August a Florida Christian Ministry filed suit against the Southern Poverty Law Center for damages allegedly suffered when the organization was placed on the SPLC's Anti-LGBT Hate Group list. Some other Christian groups have also sharply criticized the Southern Poverty Law Center for listing them as hate groups because of their stance on same-sex relationships. Earlier this week, The Daily Caller reported that the Defense Department has officially severed all ties with the Southern Poverty Law Center. DOD's Defense Equal Opportunity Management Institute has now removed all references to the SPLC in its training material.

DOJ Says Title VII Does Not Cover Transgender Discrimination

On Oct. 4, Attorney General Jeff Sessions issued a Memorandum (full text) reversing a prior Justice Department interpretation of the extent to which Title VII of the 1964 Civil Rights Act prohibits discrimination against transgender individuals. Saying that it is dealing with "a conclusion of law, not policy", the Memorandum says in part:

Title VII's prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status. Therefore, as of the date of this memorandum, which hereby withdraws the December 15, 2014, memorandum, the Department of Justice will take that position in all pending and future matters (except where controlling lower-court precedent dictates otherwise, in which event the issue should be preserved for potential further review).

The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals. Nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity, or to express a policy view on whether Congress should amend Title VII to provide different or additional protections. Nor does this memorandum remove of reduce the protections against discrimination on the basis of sex that Congress has provided all individuals, including transgender individuals, under Title VII.

National Law Journal reports on the AG's action.

Wednesday, October 04, 2017

Religious Challenge To Missouri Informed Consent Abortion Law Goes To State High Court

In Doe v. Greitens, (MO App., Oct. 3, 2017), a Missouri appellate court transferred to the state Supreme Court an appeal in a religious freedom challenge to the state's abortion Informed Consent Law. Missouri's law requires that a person seeking an abortion first receive a booklet containing specified information, including a statement that life begins at conception and that abortion will terminate the life of a separate, unique, living human being. It also requires that the woman be given the opportunity to view an ultrasound and hear a fetal heartbeat, and then wait 72 hours before the abortion procedure. According to the court:

Ms. Doe has alleged that the Informed Consent Law restricted her free exercise of religion and constitutes the state’s establishment of religion. The law, allegedly based on a religious tenet, required that she act and spend time and money, before undergoing a medical procedure in this state, contrary to actions—substantially motivated by her sincerely held religious beliefs—that she would have taken or refused to undertake....

Ms. Doe has alleged that Missouri’s Informed Consent Law unconstitutionally fosters an excessive government entanglement with religion in violation of the Establishment Clause. In this regard, she claims that the sole purpose of the law is to indoctrinate pregnant women into the belief held by some, but not all, Christians that a separate and unique human being begins at conception. Because the law does not recognize or include other beliefs, she contends that it establishes an official religion and makes clear that the state disapproves of her beliefs.

Under Missouri law, a transfer to the Supreme Court is required where a constitutional claims are real and substantial.

6th Circuit Hears Oral Arguments In RFRA Defense To Transgender Discrimination

The U.S. 6th Circuit Court of Appeals heard oral arguments (audio of arguments) in EEOC v. RG and GR Harris Funeral Homes Inc. In the case, a Michigan federal district court upheld a funeral home's defense under the Religious Freedom Restoration Act to a charge by the EEOC that the funeral home, in enforcing its dress code for males, engaged in gender stereotyping. The funeral home dismissed a transgender employee who was in the process of transitioning from male to female. (See prior posting.)

Street Preacher's Suit Against Arresting Officer Is Dismissed

In Cranford v. Kluttz, (MD NC, Sept. 20, 2017), a North Carolina federal district court dismissed on qualified immunity grounds a suit against a police officer who arrested street preacher Brian Cranford at a Farmer's Market festival. The arrest for disorderly conduct followed Cranford's shouting:

... [A]ll of those ladies over there. The Bible says that a woman should dress modestly. See a lot of ladies out here dressed like tramps and whores and prostitutes today. The Bible says you dress modestly.

Cranford was initially convicted, but then acquitted of the charges against him. At issue in this damage action was whether the police officer had probable cause to arrest Cranford, and that, in turn, depended on whether Cranford's remarks were directed to the crowd as a whole, or to a specific individual-- in particular the arresting officer's wife. The court concluded that "the statement could ... reasonably be construed to have been directed to specific individuals in the crowd and intended to be provocative."

In dismissing the lawsuit, the court said in part:

The law is not established, much less clearly established, that a law enforcement officer may not arrest an individual exercising free speech and religious rights when that officer has probable cause to believe a crime has been committed.

Israel's Chief Rabbinate Urged To Allow DNA Evidence To Prove Jewish Descent In Some Cases

In Israel, the official Chief Rabbinate determines whether a person is Jewish under Orthodox Jewish religious law. This determination is relevant to issues of marriage and burial in the country. Yesterday's Jerusalem Post reports that a leading Orthodox rabbi who is co-head of the Eretz Hemdah Institute for Advanced Jewish Studies has submitted to the Chief Rabbinate a scientific report that suggests a Mitochondrial DNA test should be allowed as an alternative method for some women to prove that they are Jewish. Mitrochondrial DNA is inherited only through the mother, and 40% of Ashkenazi Jews have specific genetic markers showing descent from one of four Jewish women who settled in Europe over 1000 years ago.

New Report On Official and Favored State Religions

Yesterday the Pew Research Center yesterday issued a new 36-page report titled Many Countries Favor Specific Religions, Officially or Unofficially. It summarizes its findings as follows:

More than 80 countries favor a specific religion, either as an official, government-endorsed religion or by affording one religion preferential treatment over other faiths, according to a new Pew Research Center analysis of data covering 199 countries and territories around the world.

Islam is the most common government-endorsed faith, with 27 countries (including most in the Middle East-North Africa region) officially enshrining Islam as their state religion. By comparison, just 13 countries (including nine European nations) designate Christianity or a particular Christian denomination as their state religion.

But an additional 40 governments around the globe unofficially favor a particular religion, and in most cases the preferred faith is a branch of Christianity. Indeed, Christian churches receive preferential treatment in more countries – 28 – than any other unofficial but favored faith.

Suit Challenges New Version of Trump's Travel Ban As Establishment Clause Violation

Yesterday a lawsuit was filed challenging President Trump's newest iteration of his administration's travel ban. The complaint (full text) in Iranian Alliances Across Borders v. Trump, (D MD, filed 10/3/2017), contends that the new ban set out in a Presidential Proclamation still targets Muslims in violation of the Establishment Clause, provisions of the Immigration and Nationality Act, and other provisions of the 1st and 5th Amendments. The complaint alleges in part:

5. In a continuation of his unlawful Muslim ban, on September 24, 2017, President Trump issued the Proclamation, which suspends categorically and indefinitely, without a specified expiration date, the entry into the United States of nationals of five of the six countries included in the Second Executive Order (Iran, Libya, Syria, Yemen, and Somalia), as well as yet another Muslim-majority country (Chad). In an effort to disguise the Proclamation’s targeting of Muslims, the Proclamation adds North Korea, even though virtually no North Korean nationals travel to the United States, and adds Venezuela, but then imposes only limited restrictions on the non-immigrant entry of just a small group of Venezuelan government officials and their immediate family members.

6. Despite President Trump’s attempts to cloak this latest iteration of his Muslim ban in religiously neutral garb by invoking a national security review and including North Korea and Venezuela, the purpose and effect of the Proclamation remain unchanged: to keep Muslims from entering the United States.

In a related lawsuit filed this week, plaintiffs sought to enforce a FOIA request for copies of reports submitted to the President by the Secretary of the Department of Homeland Security. The reports are cited in the President's Proclamation as the basis for determining which countries should be covered by the new travel ban. Here is the complaint in the lawsuit, Brennan Center for Justice v. U.S. Department of State, (SD NY, filed 10/2/2017).

Americans United issued a press release announcing the filing of the lawsuits. The press release includes links to other relevant documents as well.

Tuesday, October 03, 2017

Over Dissent, En Banc Rehearing Denied On Mississippi Conscience Protection Act

In Barber v. Bryant, (5th Cir., Sept. 29, 2017), the U.S. 5th Circuit Court of Appeals by a vote of 12-2 refused to grant an en banc rehearing in a challenge to a Mississippi law (HB 1523) that protects from discriminatory state action anyone who acts on religious or moral beliefs relating to traditional marriage, sex outside of marriage, or transgender rights. In June, a 3-judge panel held that plaintiffs lack standing to challenge the law. (See prior posting.) Two judges dissented from the denial of an en banc rehearing in an opinion that argues:

... the panel opinion is wrong; the plaintiffs have standing to challenge HB 1523 under Supreme Court and Courts of Appeals precedents. The panel opinion misconstrues and misapplies the Establishment Clause precedent, and, as explained below, its analysis creates a conflict between our circuit and our sister circuits on the issue of Establishment Clause standing.

Court Enjoins Florida Law Restricting Abortion Advice

In Fuldwider v. Senior, (ND FL, Sept. 29, 2017), a Florida federal district court issued a preliminary injunction against enforcement of a Florida statute placing limits on individuals and organizations that provide advice or help to individuals seeking an abortion. Among those challenging the law were a minister and two rabbis who provide religious counseling that sometimes includes discussion of religious beliefs about abortion and sometimes includes referrals to organizations that provide abortions.

The challenged law requires those who provide advice or referrals to register with the state. It requires anyone making a referral to first provide a detailed explanation of abortion, including alternatives. Before referring a minor, the person or agency must also attempt to provide the same explanation to the minor's parents or guardian. The court summarizes its holding:

This case presents a challenge to a state law that (1) imposes a content-and viewpoint-based requirement to register and pay a fee to engage in speech protected by the First Amendment and (2) makes it a crime not to simultaneously engage in compelled speech that the law describes so vaguely that even the state’s Attorney General does not know what is required. This order grants a preliminary injunction barring enforcement of these provisions.

ACLU issued a press release announcing the decision.

Suit Over Requirement To Remove Hijab For Booking Photo Moves Forward

In G.E. v. City of New York, (ED NY, Sept. 29, 2017), a New York federal district court refused to dismiss at summary judgment stage a free exercise claim by a Muslim woman who was required to remove her hijab for police booking photos. Initially at the police precinct she was required to remove the head covering, but was allowed to do so in a private room with only a female photographer present.For a subsequent photo at Central Booking, she was required to remove her hijab with men present, despite her request to do so in a private room without men there. The court said in part:

The City provides nothing in the way of record evidence (or for that matter, legal support) to explain why there were no alternative means of accommodating an arrestee’s religious beliefs at Central Booking at the time when G.E. was arrested – other than to recite the fact that the Central Booking camera was in a fixed location in view of both male and female detainees and staff. Nor does the City explain any resource, staff or other burdens the City would face were it to consider moving the camera, or providing some other accommodation. Not only are these factors central to the rational basis test itself, they are critical to the analysis here because the City did, in fact, change its policy to provide for such accommodation subsequent to G.E.’s arrest.

Various other claims by plaintiff were dismissed.

Monday, October 02, 2017

USCIRF Issues Report On Religious Freedom In Southeast Asia

The U.S. Commission on International Religious Freedom last week issued (press release) a new report titled A Right for All: Freedom of Religion or Belief in ASEAN. The report surveys religious freedom in each of the ten nations that make up the Association of Southeast Asian Nations. The 35-page report concludes in general:

ASEAN and the individual Member States have an inconsistent record protecting and promoting human rights, and even more so with respect to freedom of religion or belief.

Invocation Policy That Excludes Non-Theists Is Unconstitutional

In Williamson v. Brevard County, (MD FL, Sept. 30, 2017), a Florida federal district court held that the invocation practices of the Brevard (FL) Board of County Commissioners violate the Establishment Clause as well as free speech, free exercise, equal protection and various state constitutional provisions. County Commissioners take turns inviting clergy or others to deliver an invocation at the beginning of each board meeting. Commissioners, however, will only invite representatives of the faith-based community. Non-theists may not deliver invocations, though they may speak during the public comment portion of a Board meeting. The court, in a 69-page opinion, held:

Although the County contends that its invocation practice passes constitutional muster under Town of Greece, the Supreme Court's opinion in that case cannot be read to condone the deliberate exclusion of citizens who do not believe in a traditional monotheistic religion from eligibility to give opening invocations at County Board meetings. Neither Town of Greece nor any other binding precedent supports the County's arguments, and none of the County's asserted justifications for its practice holds water....

For a governmental entity to require, or attempt to require, "religious" content in invocations is, in effect (or, at best, but a step removed from) that entity composing prayers for public consumption or censoring the content of prayer....

Americans United issued a press release announcing the decision.

Sunday, October 01, 2017

Reluctant Judge Holds Cross On County Seal Is Unconstitutional

In Freedom From Religion Foundation, Inc. v. County of Lehigh, (ED PA, Sept. 28, 2017), a Pennsylvania federal district court held that a large, central Latin cross in the seal and flag of Lehigh County, Pennsylvania violate the Establishment Clause under the Lemon test and the endorsement test. However Judge Edward Smith devoted much of his opinion to explaining why he disagrees with the Supreme Court's interpretation of the Establishment Clause:

If the drafters’ intent and the plain text of the Establishment Clause had alone guided the evolution of modern First Amendment jurisprudence and shaped the law applicable to this case, its resolution would be cut-and-dry. By including a Latin cross on the Seal, the County has chosen to celebrate the Christian values important throughout its history. The County has not, however, legally compelled its citizens to practice and conform to Christianity, infringed on freedom of conscience, or created political conflict between the Christian Church and other religious sects. Simply put, the County of Lehigh did not intend to “establish” religion or institute a County religion when it adopted Commissioner Herzog’s design for the Seal. And if it had intended to do so, it has certainly failed—one of the plaintiffs himself testified that per the 2010 census, 49 percent of the County reported no religious affiliation at all....

While such considerations appear to be a matter of common-sense in determining whether a government has established a religion in violation of the First Amendment, binding precedent has taken the inquiry in a different direction.

FFRF issued a press release announcing the decision.

UPDATE: The judgment ordering a permanent injunction (full text) was entered on Nov. 2, 2017, to become effective 180 days later, and, if an appeal is filed, with a stay (except for any new uses of the seal) while the appeal is pending.

Recent Prisoner Free Exercise Cases

In Rogers v. Jackson, 2017 U.S. Dist. LEXIS 155893 (ED NC, Sept. 25, 2017), a North Carolina federal district court upheld a prison's designation of Five Percenters as a security threat group, as well as upholding restrictions on Nation of Islam. The court also sealed exhibits in the case because they would create a security risk if exposed to inmates.

In Gordon v. Combs, 2017 U.S. Dist. LEXIS 156357 (WD VA, Sept. 25. 2017), a Virginia federal district court allowed a Nation of Islam inmate to move ahead with his complaint that he was not allowed to participate in the fast of Ramadan in 2014.

In Bayadi v. Clarke, 2017 U.S. Dist. LEXIS 156356 (WD VA, Sept. 25, 2017), a Virginia federal district court allowed an inmate to move ahead with his claim under RLUIPA challenging a grooming policy that barred him from growing a beard.

In Rushdan v. Gear, 2017 U.S. Dist. LEXIS 156675 (ED CA, Sept. 25, 2017), a California federal magistrate judge held that an inmate's free exercise rights were not violated when authorities, while allowing him to use both his committed name and his religious name on prison forms, required his list his committed name first.

In Lightner v. Wenderlich, 2017 U.S. Dist. LEXIS 157831 (WD NY, Sept. 25, 2017), a New York federal district court allowed a Muslim inmate to move ahead with his claim that he could not receive a Halal diet containing meat, but dismissed without prejudice his claim regarding access to an Islamic study correspondence course.

In Olds v. Clarke, 2017 U.S. Dist. LEXIS 158328 (WD VA, Sept. 27, 2017), a Virginia federal district court dismissed a Rastafarian inmate's complaint about Common Fare religious diet and transfer of inmates who violate grooming standards.

In Kasel v. Sedgwick County Detention Facility, 2017 U.S. Dist. LEXIS 158598 (D KA, Sept. 27, 2017), a Kansas federal district court gave a Wiccan inmate one month to show cause why his complaint regarding denial of religious services and materials should not be dismissed.

In Chichakli v. Samuels, 2017 U.S. Dist. LEXIS 158703 (WD OK, Sept. 27, 2017), an Oklahoma federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 159964, Aug. 15, 2017) and allowed an inmate to move ahead with his complaint that the diet served him did not comply with kosher standards, but dismissed his complaint regarding access to religious materials and ability to engage in prayer.

In Peyton v. Walrath, 2017 U.S. Dist. LEXIS 158820 (WD VA, Sept. 27, 2017), a Virginia federal district court dismissed a Nation of Islam inmate's complaint regarding unlawful confiscation of religious materials and suspension of NOI group services. Other complaints were dismissed for failure to exhaust administrative remedies.

In Lawson v. Carney, 2017 U.S. Dist. LEXIS 160030 (ED WA, Sept. 28, 2017), a Washington federal district court dismissed a Jewish inmate's complaint that his kosher diet was suspended for 77 days. UPDATE: The magistrate's recommendation in the case is at 2017 U.S. Dist. LEXIS 160272, Aug. 4, 2017.

Cheerleaders Can Move Ahead With Suit Over Religious-Themed Run-Through Banners

In a long-running dispute, a Texas state appeals court in Kountze Independent School District v. Matthews, (TX App, Sept. 28, 2017), held that run-through banners made and used by high school cheerleaders were private speech rather than government or school-sponsored speech. The cheerleaders sued when the school prohibited their placing religious messages on their banners. The court held that the cheerleaders' private speech is protected by the First Amendment and that the state has waived governmental immunity for suits alleging unconstitutional actions. (See prior related posting.)

Friday, September 29, 2017

Brazil's Supreme Court Upholds Denominational Religious Classes In Public Schools

Brazil's Constitution, Article 210, provides: "Minimum curricula shall be established for elementary schools.... The teaching of religion is optional and shall be offered during the regular school hours of public elementary schools...." As reported by Folha de S. Paulo and La Croix, on Wednesday, by a 6-5 vote, Brazil's Supreme Court held that this allows teachers in public schools to promote their specific religious beliefs, so long as the classes are optional. The dissenters argued that religion classes in public elementary schools must be non-confessional, that is, not connected to a specific religion. The case grew out of a challenge by the Prosecutor General's Office to a 2008 Agreement between Brazil and the Vatican allowing multi-confessional religious instruction in Brazil's public schools.

District Court Nominee's Prior Speeches Create Concern

As previously reported, earlier this month President Trump nominated Texas Assistant Attorney General Jeff Mateer for a federal district court judgeship in Texas. Mateer was previously general counsel and executive vice president of the First Liberty Institute. Now, according to Wednesday's San Antonio Express-News, Texas Senator John Cornyn is expressing concern over the nomination after CNN discovered speeches in which Mateer referred to transgender children as part of "Satan’s plan" and defended the use of gay "conversion therapy."

Trump Nominates Religious Liberty Expert For Seat On 5th Circuit

Yesterday President Trump announced (among other nominations) the nomination of Kyle Duncan for a seat on the U.S. 5th Circuit Court of Appeals. Much of Duncan's career has been devoted to religious liberty concerns. Reporting on the nomination, the Baton Rouge Advocate calls Duncan a "conservative Christian legal warrior."

An unusually deep record of Duncan's views on First Amendment issues is available. From 2004-2008, he was an Assistant Professor of Law at the University of Mississippi where he taught courses on constitutional law, church-state relations, and free speech. (Bio.) Duncan's publications include:

Secularism's Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493 (2003).
Bringing Scalia's Decalogue Dissent Down from the Mountain, 2007 Utah L. Rev. 287 [LEXIS link].
Prosecution Responses To Internet Victimization: Child Pornography and First Amendment Standards, 76 Miss. L. J. 677 (2007).
Subsidiarity and Religious Establishments in the United States Constitution, 52 Vill. L. Rev. 67 (2007).
Misunderstanding Freedom from Religion: Two Cents on Madison's Three Pence, 9 Nev. L.J. 32 (2008).

From 2012- 2014 Duncan served as general counsel for the Becket Fund for Religious Liberty. He was lead counsel in the Supreme Court case of Hobby Lobby Stores v. Burwell which concluded that the Affordable Care Act's contraceptive coverage mandate violates religious rights of objecting small businesses under RFRA. Here is the merits brief that Duncan's team filed in the case.

Now a partner in the Washington, D.C. law firm of Scherr Duncan, his web page includes links to nearly a dozen news interviews and blog posts in which Duncan talks about religious liberty issues.

EEOC Files Two Religious Accommodation Suits

On Wednesday the EEOC announced the filing of two separate religious discrimination lawsuits. One suit (press release) was brought against the Sacramento, California-based supermarket chain Raley's for refusing to continue accommodating the religious needs of a Jehovah's Witness employee. The employee was fired after insisting that she needed to attend religious meetings on Wednesday evenings and Sunday afternoons.

In a second suit (press release), the EEOC sued the Florida-based Publix Supermarket chain for refusing to accommodate a Ratafarian new hire's religious need to wear his hair in dreadlocks.

Nuns Lose Challenge To Pipeline

In Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, (ED PA, Sept. 28, 2017), a Pennsylvania federal district court dismissed for lack of jurisdiction a RFRA challenge by a Catholic order of nuns to the construction and operation of the Atlantic Sunrise gas pipeline through land owned by the order. The nuns say their religious beliefs require them to protect and preserve creation. The court held that the Natural Gas Act sets out a procedure for challenging a FERC grant of a certificate to build an interstate pipeline. Plaintiffs here did not follow those procedures which require first that challengers request a rehearing from the agency, and then review by the Court of Appeals. The court concluded that the Religious Freedom Restoration Act does not supersede the exclusive jurisdiction provision of the Natural Gas Act. Lancaster Online reports on the decision. (See prior related posting.)

Thursday, September 28, 2017

Controversy Brews Over Holiday Display of Pentagram Monument

Controversy over December holiday displays has begun early this year in Boca Raton, Florida. A city ordinance allows residents to put up unattended displays during the holiday season in Sanborn Square, a city park. According to yesterday's Christian Times, a local teacher has filed an application to set up a 300-pound metal Pentagram honoring Satan this December. The display would include captions such as "In Satan We Trust," "One Nation under Antichrist" and "May the Children Hail Satan." The teacher also wants to set up a Freedom From Religion Nativity Display. A local pastor has reacted by saying: "It’s evil, it’s the essence of evil. I will take the responsibility for taking the sledgehammer and knocking it down."

Wednesday, September 27, 2017

Roy Moore Wins Republican Runoff In Alabama

Former Alabama Supreme Court Chief Justice Roy Moore won yesterday's Alabama Republican U.S. Senate primary runoff, prevailing over Luther Strange who has served in the U.S. Senate for six months. Moore won by a vote of 55% to 45%. (Official results).

As reported by CNN:

Moore now faces Democratic nominee Doug Jones in a December general election in the race to replace Attorney General Jeff Sessions.

Moore's win Tuesday night will thrust his long history of homophobic and racially tinged remarks into the spotlight.

He has campaigned on a platform of placing Christianity at the center of public life. In 2003, Moore was removed as state Supreme Court chief justice for refusing to take down a Ten Commandments monument. He was re-elected to the job, and then ousted again in 2016, when he refused to follow the US Supreme Court's ruling legalizing same-sex marriage.

Though Alabama is a solidly red state, Democrats hope Jones, a former federal prosecutor who rose to prominence by leading the government's case against two perpetrators of the 16th Street Baptist Church bombing, can make the race competitive.

Here is additional background on Moore from Wikipedia.

Moore Tweeted from his victory rally: "There's one person you don't see on this stage that's done more for my campaign than anybody, and that's almighty God." In a second Tweet, he added: "We have to return to the acknowledgment of God, and the United States Constitution."

Saudi Decree Will Allow Women To Obtain Divers Licenses

Saudi Arabia's King Salman yesterday issued a Royal Decree (full text) which for the first time allows the issuance of drivers licenses to women. As reported by Reuters, Saudi Arabia has been the only country that bars women from driving. The new rules will be implemented by June 2018 after a high-level committee of ministries recommends how to implement the changes. The decree reads in part:

We also refer to what the majority of the Council of Senior Scholars agreed on, which is that the original Islamic ruling in regards to women driving is to allow it, and that those who have opposed it have done so based on excuses that are baseless and have no predominance of thought. The scholars see no reason not to allow women to drive as long as there are legal and regulatory guarantees to avoid the pretexts (that those against women driving had in mind), even if they are unlikely to happen.

And because the country - with the help of God - is the guardian of Islamic values, it considers preserving those values one of its priorities, in this matter and in others, and will not hesitate to take any means to ensure the security and safety of its society.

Suit Charges School With Retaliating Against Student Who Challenged Religious Viewpoints

Denver Post reported yesterday on a federal lawsuit filed by a former Delta County, Colorado High School student who contends that her grades were reduced and her college applications undercut because of her opposition to injection of religious views into classes and school assemblies. The lawsuit claims:

Defendants retaliated upon plaintiff Fisk, threatened, punished and censored her, for expressing her opinions on religion, abortion, sex education, and drug education in an attempt to chill, deter and restrict (her) from freely expressing her opinions.

EEOC Sues Over Dress Code Accommodation

EEOC announced Monday that it has filed suit against Georgia Blue, a Mississippi- based chain of restaurants which refused to grant an employee a religious accommodation to allow her to wear a blue skirt instead of the required blue jeans. A job offer to Kaetoya Watkins to work as a restaurant server was rescinded when she told the company that her Apostolic Pentecostal religious belief requires her to wear only skirts or dresses. AP reports on the lawsuit.

Today Is "See You At the Pole" Day

Today is "See You At the Pole" day in public and private schools in the U.S. and around the world. The SYAP website describes the event:

All around the globe, in every time zone, students will be gathering at their flagpoles, praying for their school, friends, families, churches, and communities. SEE YOU AT THE POLE is a day committed to global unity in Christ and prayer for your generation.

Christian Post says that 1 million students will participate in the event this year, which is held before school (7:00 am local time).

Tuesday, September 26, 2017

Pastor's Suit Against VA Over Prayer Content Dismissed For Lack of Standing

In Youngblood v. United States Department of Veterans Affairs, 2017 U.S. Dist. LEXIS 156522 (MD FL, Sept. 25, 2017), a Florida federal district court dismissed for lack of standing a suit by a Baptist pastor who feared that VA officials would not allow him to offer prayers on VA property consistent with his religious beliefs. At a memorial ceremony, Pastor Gene Youngblood offered an invocation specifically criticizing former secretary of State Hilary Clinton. This led to a complaint that Youngblood had violated VA regulations that bar demonstrations or services on VA property that support or oppose current U.S. government policy. In dismissing Youngblood's suit seeking an injunction to prevent his future exclusion from VA property, the court said in part:

In short, the Complaint claims injury because Defendants will consider Pastor Youngblood's past noncompliance in determining whether to allow future ceremonies on VA property. While Pastor Youngblood claims the "threat of future exclusion of Plaintiff from VA property is both great and immediate" he fails to plead specific facts as to how that is so. Instead, Pastor Youngblood sets forth general and vague allegations regarding injury...

Today Is Alabama Senate Primary Runoff Between Moore and Strange

Today in Alabama, Republican voters go to the polls in the runoff U.S. Senate primary race between incumbent Luther Strange and former Alabama Supreme Court Chief Justice Roy Moore. Moore is known for his high profile battles in which he refused to remove a Ten Commandments monument from the Alabama Supreme Court building and his defiance of the U.S. Supreme Court's same-sex marriage ruling. Al.com reports that in his final campaign rally last night, Moore told a large crowd: "For whatever reason, God has put me in this election at this time and all of the nation is watching."

Monday, September 25, 2017

Trump Issues New, More Targeted Version of Travel Ban

President Trump yesterday issued a Proclamation (full text) (press release) (White House background document) setting out a more targeted version of his travel ban. The travel restrictions in the prior ban expired yesterday, while the refugee restrictions in the prior ban extend to Oct. 24. The new ban focuses around a "baseline for the kinds of information required from foreign governments" to allow U.S. vetting of immigrants and non-immigrants. The Administration determined that 7 nations fail to meet these standards: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen, and travel to the U.S. by nationals of those countries is largely banned. (Though restrictions on Venezuela are limited to travel here by government officials.) The Administration also found that Iraq does not meet the baseline standards, but excludes its nationals from new restrictions. A ban is placed on admission of immigrants from Somalia, even though it technically meets the baseline criteria. The Proclamation separately sets out the scope of the restrictions on each of the covered nations, tailoring each to the individual situations. (Fact Sheet; FAQs).

As reported by Reuters, these developments are likely to have an effect on the challenges to the prior travel ban pending in the courts. The Supreme Court is scheduled to hear oral arguments on those challenges on Oct. 10. (See prior posting.) Yesterday the Administration asked the Supreme Court to consider receiving additional briefs to address the effects of the new Proclamation on the pending cases. Washington Post has additional reporting on the new Presidential Proclamation.

UPDATE: In an Order (full text) dated Sept. 25, the U.S. Supreme Court ruled:

The parties are directed to file letter briefs addressing whether, or to what extent, the Proclamation issued on September 24, 2017, may render cases No. 16-1436 and 16-1540 moot. The parties should also address whether, or to what extent, the scheduled expiration of Sections 6(a) and 6(b) of Executive Order No. 13780 may render those aspects of case No. 16-1540 moot.