Chabad Gets Partial Win Under RLUIPA In Long-Running Suit

In a case that has wound its way through the courts for nearly ten years, this week a Connecticut federal district court gave a partial victory to the Orthodox Jewish Chabad organization which is seeking to expand a residential building it purchased in an area zoned as an Historic District.  In Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield, Connecticut, (D CT, Nov. 1, 2017), a Connecticut federal district court held that the Lichtfield Historic District Commission's denial of a Certificate of Appropriateness for the planned expansion placed a substantial burden on the religious exercise of Chabad in violation of the Religious Land Use and Institutionalized Persons Act.  However, the court concluded that Chabad needs to submit revised plans that eliminates the portion of the expansion that would serve as a residence for the rabbi. (See prior related posting.) [Thanks to Dan Dalton for the lead.]

Pakistan Court Fines and Jails Husband For Polygamous Marriage Without Wife's Consent

According to Deutsche Welle, for the first time a trial court in Pakistan has sided with the woman in a polygamy case.  A trial court in Lahore sentenced Shahzad Saqib to 6 months in jail and a fine equivalent to $1900 (US) for violating Pakistan's 2015 family law that requires the exiting wife's approval for a man to take a second wife. (Background). The court rejected the husband's argument that he did not need consent because Islam permits a man to have up to four wives.

Canada's Supreme Court Rejects Aboriginal Tribe's Religious Objection To Ski Resort

In Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), (Sup. Ct. Canada, Nov. 2, 2017), the Supreme Court of Canada rejected a claim by the aboriginal Ktunaxa Nation that government approval for the development of a ski resort on land they considered sacred would violate their constitutional right to freedom of religion under Section 2(a) of Canada's Charter of Rights and Freedoms as well as their Aboriginal treaty rights under Section 35 of the Constitution Act.  Chief Justice McLachlin, writing for 7 Justices held (as summarized by the court):

... the Ktunaxa are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it. Rather, they seek to protect the presence of Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it. This is a novel claim that would extend s. 2(a) beyond its scope and would put deeply held personal beliefs under judicial scrutiny. The state’s duty under s. 2(a) is not to protect the object of beliefs or the spiritual focal point of worship, such as Grizzly Bear Spirit. Rather, the state’s duty is to protect everyone’s freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination.

Justice Moldaver, writing for 2 Justices, found a substantial interference with religious beliefs, but concluded that it was justified as a proportionate balancing between the Ktunaxa’s s. 2(a) Charter right and the Minister’s statutory objectives. The court summarized their conclusion as to infringement of religious liberty:

... the Ktunaxa sincerely believe that Grizzly Bear Spirit inhabits Qat’muk, a body of sacred land in their religion, and that the Minister’s decision to approve the ski resort would sever their connection to Qat’muk and to Grizzly Bear Spirit. As a result, the Ktunaxa would no longer receive spiritual guidance and assistance from Grizzly Bear Spirit. Their religious beliefs in Grizzly Bear Spirit would become entirely devoid of religious significance, and accordingly, their prayers, ceremonies, and rituals associated with Grizzly Bear Spirit would become nothing more than empty words and hollow gestures. Moreover, without their spiritual connection to Qat’muk and to Grizzly Bear Spirit, the Ktunaxa would be unable to pass on their beliefs and practices to future generations. 

Lawyer's Daily has a lengthy report on the decision.

New Tax Bill Would Allow "529 Plans" For Parochial School Tuition

The Republican tax bill (full text) introduced yesterday (see prior posting) would allow parents to set up "529 Plans" for up to $10,000 per year of elementary and secondary school tuition, including tuition at religious schools. (Section 1202).  529 Plans, currently limited to saving for college expenses, are a method of earning tax-free income on educational savings.  The bill also allows a Section 529 plan to be set up for an "unborn child," defined in the proposal as a "child in utero," which is in turn defined in the bill as "a member of the species homo sapiens, at any stage of development, who is carried in the womb."

Republican Tax Bill Would End Johnson Amendment Ban On Partisan Sermons

As reported by CBS, House Republicans yesterday released their proposed tax reduction plan.  The bill (full text) titled "Tax Cuts and Jobs Act" includes a limited change in the Johnson Amendment that would allow sermons that endorse specific candidates. The Johnson Amendment prohibits Section 501(c)(3) non-profits from participating in partisan political campaigns.  Yesterday's proposal (Sec. 5201) would provide a limited exceptions to that ban as it applies to churches (and their integrated auxiliaries and conventions and associations of churches).  Here is the relevant portion of the proposed language in the bill:

... an organization described in section 508(c)(1)(A) shall not fail to be treated as organized and operated exclusively for a religious purpose, nor shall it be deemed to have participated in, or intervened in any political campaign on behalf of (or in opposition to) any candidate for public office, solely because of the content of any homily, sermon, teaching, dialectic, or other presentation made during religious services or gatherings, but only if the preparation and presentation of such content— (A) is in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose, and (B) results in the organization incurring not more than de minimis incremental expenses.

Orthodox Jews In Canada Challenge Brain Death As End-of-Life Test

According to the National Post, in the Canadian city of Toronto an Orthodox Jewish family has filed suit claiming that under the Charter of Rights and Freedoms they should be able to require a hospital to continue to treat their 25-year old son who was declared brain dead.  The family says that their religious beliefs reject the concept of brain death in favor of the end of heart beat as the test.  The court ordered the patent to temporarily be kept on life support while the case is pending.

Louisiana Governor Exceeded Authority In Expanding Non-Discrimination Protections

In Louisiana Department of Justice v. Edwards, (LA App, Nov. 1, 2017), a Louisiana state appeals court held that Louisiana Governor John Edwards exceeded his authority when he issued an Executive Order that extended non-discrimination provisions for state contracts and state employment to include sexual orientation and gender identity.  the court said in part:

[T]he Governor's Executive Order constituted an unconstitutional interference with the authority vested solely in the legislative branch of our state government by expanding the protections that currently exist in anti-discrimination laws rather than directing the faithful execution of the existing anti-discrimination laws of this state.

The Times-Picayune reports on the decision.

California Pregnancy Clinic Requirement Violates State Constitution

In Scharpen Foundation, Inc. v. Harris, (CA Super. Ct., Oct 30, 2017), a California state trial court held that the state's Reproductive FACT Act violates the free speech protections of Art. I, Sec. 2 of the California Constitution. The challenged statute requires licensed pregnancy counseling clinics to post or provide to patients a notice on the existence of publicly-funded family planning services, including contraception and abortion. Applying strict scrutiny, the court said in part:

There is no question that the State has a legitimate regulatory interest in the practice of the healing arts.  In the midst of this contentious political dispute the State commands that specific State authored words be mouthed by the clinic at the very beginning of its relationship with those who come to it for guidance.... The statute interferes with both the right of the clinician to speak and with the right of the patient to hear what the clinician would say in the absence of State censorship....

It is entirely proper for the State to take its position supporting access to abortion.... But its ability to impress free citizens into State service in this political dispute cannot be absolute....

Last year the U.S. 9th Circuit Court of Appeals upheld the California statute against free speech and free exercise challenges raised under the U.S. Constitution. (See prior posting.) Liberty Counsel issued a press release announcing this week's state court decision.

2nd Circuit: Religious Court Lacks Standing To Challenge Stay of Its Proceedings

In Bais Din of Mechon L’Hoyroa v. Congregation Birchos Yosef, (2d Cir., Nov. 1, 2017), the U.S. 2nd Circuit Court of Appeals affirmed a  district court's conclusion that a Jewish religious court lacked standing to challenge the application of the Bankruptcy Code's automatic stay provisions to proceedings in the religious court.  The 2nd Circuit said in part:

As the district court correctly concluded, the Bais Din failed to demonstrate that it suffered a pecuniary harm. Quite the opposite, the Bais Din did not even allege a pecuniary harm before the district court, claiming instead that the automatic stay inhibited the free exercise of religion by “preventing the Bais Din from issuing notices to or against” individuals who violate Jewish law’s prohibition on initiating proceedings in secular courts without prior permission from a rabbinical court. Whatever the merits of that claim, it does not reflect a pecuniary injury. Moreover, to the extent that the Bais Din seeks to vindicate a non-pecuniary injury, nothing in this or the district court’s opinion prevents it from filing a civil action.

Amicus Briefs In Masterpiece Cakeshop Now Available Online

The Masterpiece Cakeshop case will be argued before the Supreme Court on Dec. 5. Over 50 90 amicus briefs have been filed in the case. SCOTUSblog's case page has links to them, as well as to briefs of petitioner and respondent and to commentary on the case. The case pits the Colorado Civil Rights Commission against a baker who, for religious reasons, refused to create a wedding cake for a same-sex couple.

Bus Driver Can Move Ahead With Religious Objection To Fingerprinting

In Kaite v. Altoona Student Transportation, Inc., (WD PA, Oct. 30, 2017), a Pennsylvania federal district court allowed a school bus driver to proceed with her religious discrimination and retaliation claims against her employer.  A newly enacted state law required the driver to undergo a background check, including fingerprinting.  According to the court, plaintiff, a devout Christian, sought an accommodation because of her belief that fingerprinting is the "mark of the devil" which is forbidden by the Book of Revelation.  Defendant refused any accommodation and dismissed plaintiff.  Legal Intelligencer reports on the decision.

Barrett Confirmed For 7th Circuit After Controversy Over Her Religious Beliefs

The Hill reports that the U.S. Senate yesterday confirmed the nomination of Notre Dame Law Professor Amy Coney Barrett for a seat on the U.S. 7th Circuit Court of Appeals.  Three Democrats joined Republicans to approve the nomination by a vote of 55-43.  Barrett's nomination had become controversial because of her views on reproductive rights, abortion, LGBTQ rights, as well as her statement in a 1988 law review article urging Catholic judges to recuse themselves in capital cases because of Catholic teaching opposing capital punishment. (See prior posting.) After the Senate's confirmation vote, a spokesperson for The Catholic Association said:

Amy Coney Barrett's qualifications for the federal judiciary are undisputed, but abortion industry advocates continue their smear campaign by attacking Barrett's Catholic faith.  The full Senate rejected their attempt to hang a ‘Catholics need not apply’ sign outside the Senate chamber when it considers candidates to the judiciary.

7th Circuit Hears Arguments On Christmas Pageant Challenge

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in Freedom From Religion Foundation v. Concord Community Schools. (Audio of oral arguments).  In the case, an Indiana federal district court upheld the constitutionality of a modified version of the annual Christmas Spectacular put on by an Indiana high school.  Plaintiffs had challenged the pageant under the Establishment Clause. The court had previously issued a preliminary injunction against the 2014 and proposed 2015 versions that included a live Nativity Scene and Bible passages. (See prior posting.)  Subsequently the court awarded nominal damages and a declaratory judgment as to the earlier versions. (See prior posting.)  Courthouse News Service reports in more detail on yesterday's oral arguments.

New Contraceptive Coverage Rules Challenged As Notre Dame Plans To End Coverage

As previously reported, the Trump Administration has issued Interim Final Rules that expand religious exemptions from the Affordable Care Act contraceptive coverage mandate.  The Administration has also settled many of the lawsuits challenging the contraceptive coverage requirement.  Indiana Public Media reports that Notre Dame University last week informed students and employees that after the end of the current plan year, health insurance policies obtained through the University will no longer cover contraceptives for birth control. Apparently plans will still cover contraceptives where necessary to treat medical conditions.

Yesterday, three Notre Dame students, an employee of an Illinois university and an employee of a church filed suit in an Indiana federal district court challenging the new Interim Rules.  The complaint (full text) in Shiraef v. Hargan, (ND IN, filed 10/31/2017), contends:

3. Bypassing the legally-required notice and comment process, the Rules were promulgated to take effect immediately and nullify existing regulations that took over six years to implement and involved no less than six rounds of notice-and-comment rulemaking, including consideration of over 725,000 comments.

4. The Rules and their issuance violate the Administrative Procedure Act, the Establishment Clause of the First Amendment to the U.S. Constitution, the Due Process Clause of the Fifth Amendment to the U.S. Constitution including equal protection guarantees and the right to liberty, and the ACA.

Americans United issued a press release announcing the filing of the lawsuit.

Muslim Woman's Suit Over Search By Male Officer Is Dismissed

In Montgomery v. Town of Colonie, (ND NY, Oct. 30, 2017), a New York federal district court granted qualified immunity to a male police officer who conducted a pat-down search of a Muslim woman when she was arrested.  Dismissing this portion of plaintiff's claim for damages, the court said in part:

Montgomery does not cite a single authority holding that a police officer violates the First Amendment by performing a cross-gender pat-frisk of an observant Muslim.

The court however allowed plaintiff to move ahead with her Fourth Amendment and false imprisonment claims.

Court Blocks Trump's Memo On Transgender Enlistment And Service In Military

A D.C. federal district court yesterday issued a preliminary injunction barring enforcement of the portions of President Trump's Memorandum on Military Service by Transgender Individuals that would have prevented enlistment and service by transgender persons.  In a 76-page decision in Jane Doe 1 v. Trump, (D DC, Oct. 30, 2017), the court said in part:

As a form of government action that classifies people based on their gender identity, and disfavors a class of historically persecuted and politically powerless individuals, the President’s directives are subject to a fairly searching form of scrutiny. Plaintiffs claim that the President’s directives cannot survive such scrutiny because they are not genuinely based on legitimate concerns regarding military effectiveness or budget constraints, but are instead driven by a desire to express disapproval of transgender people generally. The Court finds that a number of factors— including the sheer breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the President’s announcement of them, the fact that the reasons given for them do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself—strongly suggest that Plaintiffs’ Fifth Amendment claim is meritorious.

The court held plaintiffs lack standing to challenge the Memorandum's provisions blocking funds for sex reassignment surgery. New York Times reports on the decision.

Catholic Nurse Sues Duke University Hospital Seeking Religious Accommodation

A lawsuit was filed last week against Duke University and the Duke University Health System by a Catholic emergency department nurse who claims that Duke University Hospital discriminated against her because she requested accommodation of her religious beliefs.  The complaint (full text) in Pedro v. Duke University, (MD NC, filed 10/27/2017), alleges in part:

7. Because of her Catholic faith, [plaintiff] objects to assisting in abortions, dispensing birth control and contraceptives, and receiving as well as administering vaccines. Ms. Pedro’s employer, Defendant Duke, discriminated against her because of these religious beliefs and practices.

8. Furthermore, after Ms. Pedro made known her religious beliefs and requested religious accommodations, Defendant Duke subjected her to a degrading series of actions designed to punish and retaliate against her for engaging in federally-protected activity.

Apparently the Hospital was willing to accommodate Pedro's objection to receiving vaccines, but not her objection to participating in abortions.

Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Township In Litigation With Indian Tribe Over Use of Prayer Grounds

In Mahwah, New Jersey, where most of the attention is on a lawsuit claiming that the township is attempting to keep out Orthodox Jews (see prior posting), NJ Advance Media reports on another trial under way also involving religious rights.  The township is attempting to force the Ramapough Lenape Indian Tribe to remove teepees and other structures the tribe erected on their 13.6 acre prayer ground on the Ramapo River at the base of a high-priced housing development. the tribe says the township is trying to criminalize its religious gatherings.  The township argues that the issue is zoning compliance in a conservation zone and flood plain. It says the tribe has created a camp ground that is not permitted under zoning regulations.

Egyptian Court Bans TV Show That Criticizes Traditional Sunni Doctrine

Yesterday Egypt's Administrative Court banned the broadcast of the TV show "With Islam."  As reported by Al-Ahram and Egypt Daily News, the show, hosted by Egyptian reformer Islam El-Beheiry, features video excerpts of talks by respected Salafi preachers followed by El-Beheiry's criticism of their statements.  The show appears on the privately-owned TV channel Al Qahera Wel Nas.  The suit was originally filed in 2015 by Al-Azhar Grand Imam Ahmed El-Tayeb who contended that El-Beheiry falsely criticized religious doctrines to make individuals question their beliefs. Yesterday;s court order bans showing of future as well as past episodes of With Islam, and also prohibits inviting El-Beheiry to appear on any other satellite TV channels.  In December 2015, El-Beheiry was sentenced to one year in prison for contempt of religion after he questioned the authenticity of certain Sunni religious texts. He was released one month early with a pardon from Egyptian President Abdel Fattah el-Sisi, and his show resumed in May.

Recent Articles of Interest

From SSRN:

• Michael J. T. McMillen, Enforceability of Certain Promises, Particularly Unilateral and Pre-Closing Promises: Secular and Shari'ah Concepts, (2017 Proceedings of Accounting and Auditing Organisation for Islamic Financial Institutions Shari'ah Board Conference).
• Ronald J. Colombo, An Antitrust Approach to Corporate Free Exercise Claims, (Volume 92.1 of the St. John’s Law Review, 2017).
• Elizabeth Heger Boyle, Shannon Golden & Wenjie Liao, The Catholic Church and International Law, (Annual Review of Law and Social Science, Vol. 13, pp. 395-411, 2017).
• Liam Elphick, Sexual Orientation and 'Gay Wedding Cake' Cases Under Australian Anti-Discrimination Legislation: A Fuller Approach to Religious Exemptions, (Adelaide Law Review, Vol. 38, No. 1, 2017).
• Shahbaz Ahmad Cheema & Zubair and Abbasi, Contribution of the Lahore High Court in the Development of Islamic Family Law in Pakistan, (October 21, 2017).
• Asif Khan & Maseeh Ullah, Judicial Patronage of ‘Honor Killings' in Pakistan: The Supreme Court's Persistent Adherence to the Doctrine of Grave and Sudden Provocation, (June 18, 2015).

Court Resolves Factional Religious Split Using "Neutral Principles" Approach

In Kelley v. Garuda, (Nassau Cty. NY Sup. Ct., Oct. 2, 2017), a New York trial court, deferring to resolutions passed by the Governing Body Commission of the International Society of Krishna Consciousness ("GBC") and applying neutral principles of law, resolved a factional theological split within the Freeport, New York ISKCON Temple. The court upheld a default judgment against defendants who had taken control of the Temple, saying in part:

Plaintiffs' purchased the property well before the Defendants' arrival and interference with the Plaintiffs' use and enjoyment of the property. Prior to the 2005 "election" where Gupta and his adherents purportedly changed the leadership of the Freeport Temple, the Plaintiffs sufficiently established that all financial and ecclesiastical issues regarding the Freeport Temple were decided and/or approved by the GBC or its chosen delegates....

Further evidence of the Plaintiffs' ownership and control over the Freeport Temple is their constitution, the ISKCON Law Book, which creates an express trust in favor of the Society at large under the control of the GBC....

The Founder also established a Trust in the second Article of his Will which declared that each ISKCON temple would be held for the benefit of the ISKCON Society at large. The language of the Trust provision specifies that the GBC would continue to manage the ISKCON Society in perpetuity.

Recent Prisoner Free Exercise Cases

In Abdullah v. Cohen, 2017 U.S. Dist. LEXIS 174961 (D NJ, Oct. 23, 2017), a New Jersey federal district court dismissed without prejudice an inmate's suit alleging that hie was not on the Ramadan list and that his isolation in jail prevents him from practicing his religion.

In Green v. Frank Parish Detention Center, 2017 U.S. Dist. LEXIS 175215 (WD LA, Oct. 20, 2017), a Louisiana federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 175704, Sept. 19, 2017) and dismissed a Muslim inmate's complaint that group Jumah religious services are not offered on Fridays.

In Smith v. Drawbridge, 2017 U.S. Dist. LEXIS 175014 (WD OK, Oct. 23, 2017), an Oklahoma federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 175923,  Sept. 8, 2017) while dismissing a number of claims, allowed an Orthodox Jewish inmate to move ahead with his complaint that the chaplain consistently denied requests for religious accommodation as to food and various religious items and observances.

In Haslett v. Arnold, 2017 U.S. Dist. LEXIS 175988 (SD IL, Oct. 24, 2017), an Illinois federal district court allowed a Muslim inmate to move ahead with his complaint that he was not allowed to observe the Ramadan fast.

In Watkins v. Stogner, 2017 U.S. Dist. LEXIS 176502 (D NV, Oct. 25, 2017), a Nevada federal magistrate judge recommended dismissing a Muslim inmate's complaint over the manner in which inmates were permitted to celebrate Eid al-Fitr.  UPDATE: The court adopted the magistrate's recommendation, 2017 U.S. Dist. LEXIS 212202 (Dec. 27, 2017).

In Trammell v. McDonnell, 2017 U.S. Dist. LEXIS 177229 (CD CA, Oct. 25, 2017), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that during a one week period he was not provided with Ramadan meals or was provided them only after sunrise.

In Saif'ullah v. Cruzen, 2017 U.S. Dist. LEXIS 177873  and Smith v. Cruzen, 2017 U.S. Dist. LEXIS 178733 (ND CA, Oct. 26, 2017), a California federal district court dismissed inmates' complaints that on one evening during Ramadan Muslim inmates were interrupted and stopped from completing a congregational prayer session.

In Fisk v. Warren County Sheriff's Department, 2017 U.S. Dist. LEXIS 178128 (ED TN, Oct. 27, 2017), a Tennessee federal district court dismissed with leave to amend an inmate's claim that he was denied the things he needed to practice his religion, and dismissed his complaint that he was not permitted to attend his mother's funeral.

British Court Upholds Removal of Christian Social Work Student Over Facebook Comments

As reported by The Guardian and by a press release from Christian Concern, a British trial court judge yesterday upheld a decision by Sheffield University to remove graduate student Felix Ngole from his 2-year MA program in Social Work because of comments he posted on Facebook.  In 2015, commenting on the widely publicized case of Kentucky county clerk Kim Davis, Ngole, a devout Christian, said: "same sex marriage is a sin whether we like it or not. It is God’s words and man’s sentiments would not change His words." Ngole argued that the University's action infringed his free expression rights.  High Court Judge Rowena Collins Rice ruled, however:

Public religious speech has to be looked at in a regulated context from the perspective of a public readership. Social workers have considerable power over the lives of vulnerable service users and trust is a precious professional commodity.

Mississippi Suit On Gay Marriage Recusals Is Reopened

In June, the U.S. 5th Circuit Court of Appeals dismissed for lack of standing a challenge to Mississippi's broad Conscience Protection Act. (See prior posting.) In October, an en banc rehearing was denied.  In light of this, yesterday a Mississippi federal district court in Campaign for Southern Equality v. Bryant, (SD MI, Oct. 27, 2017), issued an order (full text) reopening a challenge to the law insofar as it allows county clerks to recuse themselves from issuing marriage licenses to same-sex couples because of religious or moral objections to same-sex marriage.  The Order also authorized plaintiffs to serve interrogatories to determine how many Clerk's Offices have employees that have sought to recuse themselves, and how the recusals are handled. AP reports on the order.

Pence: US Will Fund Faith-Based Groups Instead of UN In Mid-East Relief

On Wednesday evening, Vice President Mike Pence spoke to the In Defense of Christians Solidarity Dinner in Washington, D.C. (full text of remarks).  He said in part:

In Egypt, we see the bombing of churches during Palm Sunday celebrations -- a day of hope transformed into a day of horror.

In Iraq, we see monasteries demolished, priests and monks beheaded, the two-millennia-old Christian tradition in Mosul clinging for survival.

In Syria, we see ancient communities burned to the ground, believers tortured for confessing Christ, and women and children sold into slavery.

Let me assure you tonight, President Trump and I see these crimes for what they are -- vile acts of persecution animated by hatred for Christians and the Gospel of Christ. And so too does this President know who and what has perpetrated these crimes, and he calls them by name -- radical Islamic terrorists....

Here’s the sad reality: The United Nations claims that more than 160 projects are in Christian areas, but for a third of those projects, there are no Christians to help. The believers in Nineveh, Iraq, have had less than 2 percent of their housing needs addressed, and the majority of Christians and Yazidis remain in shelters....

Our fellow Christians and all who are persecuted in the Middle East should not have to rely on multinational institutions when America can help them directly. And tonight, it is my privilege to announce that President Trump has ordered the State Department to stop funding ineffective relief efforts at the United Nations. And from this day forward, America will provide support directly to persecuted communities through USAID.

We will no longer rely on the United Nations alone to assist persecuted Christians and minorities in the wake of genocide and the atrocities of terrorist groups. The United States will work hand-in-hand from this day forward with faith-based groups and private organizations to help those who are persecuted for their faith.

Marcus Nominated For Department of Education Civil Rights Post

The White House yesterday announced that President Trump will nominate Kenneth L. Marcus as Assistant Secretary for Civil Rights in the Department of Education  Marcus is president of the Brandeis Center for Human Rights Under Law, an organization devoted to combating anti-Semitism on college campuses. According to the Chronicle of Higher Education:

Mr. Marcus, who is also a visiting professor of equality and justice at Baruch College of the City University of New York, served under President George W. Bush as acting assistant secretary for civil rights, leading the Office for Civil Rights, or OCR. Since leaving the department, Mr. Marcus has been an outspoken critic of anti-Semitism on campuses. He previously served as director of the Initiative on Anti-Semitism at the Institute for Marcus Jewish and Community Research, in San Francisco.

Wedding Invite Designers Lose Challenge To Public Accommodation Law

In Brush & Nib Studio L.C. v. City of Phoenix, (AZ Super. Ct., Oct. 25, 2017). an Arizona trial court rejected challenges by a studio that creates custom wedding invitation and wedding products to the city of Phoenix's public accommodation anti-discrimination law.  Plaintiffs, because of the Christian religious beliefs, intend to refuse to produce custom designed products for same-sex couples,  The court rejected plaintiffs' claim that this violates their free speech rights under the Arizona Constitution, concluding that any impact on speech is merely an incidental, content-neutral impact of an ordinance directed at combating discrimination on the basis of sexual orientation.  The law survives the intermediate level scrutiny applied in such cases.  The court also rejected plaintiffs' claim under the state's Free Exercise of Religion Act, saying in part:

Nothing about the ordinance has prevented the Plaintiffs from participating in the customs of their religious beliefs or has burdened the practice of their religion in any way.

In a press release, ADF says that an appeal is planned.  The press release also contains links to various pleadings in the case.  Arizona Republic reports on the decision.

Israel's High Court Upholds Local Law Allowing Supermarkets To Open on Sabbath

According to the Jerusalem Post, in Israel yesterday an expanded panel of the country's High Court of Justice upheld a Tel Aviv municipal bylaw that allows 165 large supermarkets to remain open on the Sabbath. Small stores which must close because of the Law for Hours of Work and Rest, which prohibits requiring employees to work on their day of rest, argued that the Tel Aviv ordinance created unfair competition. Orthodox Jewish lawmakers say they will introduce legislation in the Knesset to overrule the decision. [Thanks to Steven H. Sholk for the lead.]

Judge Resigns Over His Refusal To Handle Gay Adoptions

According to a report from WDRB yesterday, Kentucky Family Court  Judge W. Mitchell Nance has resigned rather than defend against charges filed against him by the Judicial Conduct Commission.  Nance had sent out a general order to attorneys informing them that he would not hear cases involving adoptions by gays or lesbians.  Nance had argued that his religious beliefs and convictions required him to recuse himself in such cases. (See prior related posting.) [Thanks to Tom E. Rutledge for the lead.]

HHS Seeks Comments on Faith-Based Participation In Programs

The Department of Health and Human Services yesterday published a Release (full text)  in the Federal Register seeking comment on removal of barriers that may exist to participation in HHS programs and grants for faith-based organizations.  The Release says in part:

HHS seeks input from the public and relevant stakeholders on potential changes that could be made to existing HHS regulations or guidance to ensure that faith-based organizations and their religious beliefs and moral convictions are properly accommodated, that faith based organizations are not required to act contrary to their religious beliefs or moral convictions (as a recipient, subrecipient, contractor, sub-contractor, or otherwise) or are otherwise not restricted, excluded, substantially burdened, discriminated against, or disproportionately disadvantaged in HHS-conducted or funded programs or activities (including those administered by state and local governments) because of their religious character, identity, beliefs, or moral convictions

HHS also seeks input on whether faith-based organizations could face potential obstacles to participation in state or locally funded programs, or restrictions on their privately funded activities, because of HHS requirements imposed on state and local governments as a condition of receiving HHS funding.

Catholic Philly reports on the Release.

Indiana Sex Offenders Not Banned From Churches

In John Doe 1 v. Boone County Prosecutor, (IN App., Oct. 24, 2017), the Indiana Court of Appeals held that the state's sex offender law does not prohibit serious sex offenders from attending their church, even if the church conducts Sunday school or provides child care at the same site.  Indiana law prohibits "serious sex offenders" from entering "school property."  The Court concluded:

Churches and religious instruction are not schools, nor do they become so by use of the popular and common name of “Sunday school.”

Zionsville (IN) Times Sentinel reports on the decision.

New Jersey Sues Township Over Attempts To Exclude Orthodox Jews

Yesterday, New Jersey's Attorney general filed a religious discrimination suit against Mahwah Township.  The complaint (full text) in Porrino v. Township of Mahwah, (NJ Super. Ct., filed 10/24/2017) is summarized in a press release from the Attorney General's Office:

Likening the conduct of Mahwah township officials to 1950s-era “white flight” suburbanites who sought to keep African-Americans from moving into their neighborhoods, Attorney General Christopher S. Porrino announced today that the State has filed a Superior Court complaint against the Mahwah Township Council and the Township of Mahwah alleging that, in an effort to stave off a feared influx of Orthodox Jewish persons from outside New Jersey, it approved two unlawfully discriminatory ordinances.

One of those ordinances discriminated by banning non-New-Jersey-residents from using Mahwah’s public parks, the State alleges. The other – an ordinance amendment – discriminated by effectively banning the posting, on utility poles, of plastic strips called “lechis” that denote the boundaries of an eruv used by Sabbath-observant Orthodox Jews. The complaint also challenges actions the township has taken to have an existing eruv removed.

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

Court Rejects Objections To Refusal To Reschedule Trial Dates For Alleged Religious Reasons

In People v. Alliance Warburg Capital Management, (NY Cty. Sup. Ct., Oct. 17, 2017), a New York trial court rejected religious free exercise arguments by defendant who had been convicted of defrauding investors out of over $4 million.  Defendant objected to the court's refusal during trial to agree to hold no sessions on Fridays-- though only one session was in fact held on a Friday.  The state did not object to defendant's request.  The court found defendant's religious claims to insincere.  Defendant claimed to be Jewish and contended that "he was an adherent of Kabbalah Judaism and that the tenets of that faith required an observance with respect to "sundown in Israel, not just sundown here in the U.S...."

The court observed that defendant had repeatedly used religion to perpetrate his frauds.  It concluded:

The right to the free exercise of religion is one of our most precious liberties. The use of religion to perpetrate fraud, on the other hand, is abhorrent. This Court, as others, obviously does not make every decision to vindicate a principle. Often, efficiency and the agreement of the parties are controlling. In this case, however, the principle was also important. It was important that Mr. Canady not use religion to defraud the court — as he had done on multiple prior occasions to defraud his victims.

Supreme Court Dismisses As Moot Remaining Travel Ban Challenge On Its Docket

Yesterday, as President Trump's prior Executive Order barring admission of refugees expired and a new Executive Order took effect, the U.S. Supreme Court issued an order (full text) in Trump v. Hawaii in which it had previously granted review to decide on the constitutionality of the President's second travel ban.  In the order the Court vacated the judgment below and remanded to the 9th Circuit with instructions to dismiss as moot the challenge to the prior Executive Order.  Justice Sotomayor dissented from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted. The Court earlier dismissed another challenge on similar grounds. (See prior posting.)

New Executive Order Restarts Refugee Admissions With Increased Vetting

President Trump today issued an Executive Order (full text) resuming the admission of refugees to the United States, but with increased vetting.  The Executive Order provides rather cryptically for a 90-day review period to determine "whether any actions taken to address the risks to the security and welfare of the United States presented by permitting any category of refugees to enter this country should be modified or terminated..."  Politico reports on the meaning of this provision as provided by administration officials:

The order initiates a new 90-day review period for the administration to conduct an “in-depth threat assessment” of the 11 countries, according to a senior administration official.

The administration did not disclose the 11 countries, but based on statements from senior administration officials they appear to be: Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria and Yemen. All except for North Korea are majority-Muslim.

During the 90-day review period, refugee admissions from the 11 nations will be permitted on a case-by-case basis if the person’s entry is in the national interest and “poses no threat to the security or welfare of the United States,” the official said.

U.S. Will Announce New Vetting Rules That Will Allow Refugees From All Countries To Enter

USA Today, quoting the Wall Street Journal [subscription required], reports that the White House today will announce a new vetting process that will allow refugees from all countries to enter the U.S. again. President Trump's controversial travel ban, as it applies to refugees, expires today.

Britain's Court of Appeal Invalidates Sex-Segregated Classes In Co-Ed Faith Schools

In HM Chief Inspector of Education v. Interim Executive Board of Al-Hijrah School, (EWCA, Oct. 13, 2017), the England and Wales Court of Appeal held that a Muslim school which admits both boys and girls, but for religious reasons separates them into sex-segregated classes, violates the Equality Act 2010.  The opinion of Etherton, MR (joined by Beatson, LJ) concluded that the separation operates to discriminate against both boys and girls, saying in part:

An individual girl pupil cannot socialise and intermix with a boy pupil because, and only because, of her sex; and an individual boy pupil cannot socialise and intermix with a girl pupil because, and only because, of his sex. Each is, therefore, treated less favourably than would be the case if their sex was different.

They also point out:

It is common ground that the School is not the only Islamic school which operates such a policy and that a number of Jewish schools with a particular Orthodox ethos and some Christian faith schools have similar practices. 

In a separate opinion, Lady Justice Gloster argued that on the facts of this case, it should be found that the school's practice also has a more detrimental effect on girls than on boys.  She said in part:

One does not need to be an educationalist, a sociologist or a psychiatrist to conclude that a mixed sex school: (i.) which, whether intentionally or otherwise, tolerates an environment where extreme and intolerant contemporary views about the role and physical subservience of women, and the entitlement of men physically to dominate and chastise them, are on display, or available to read, in the school library; (ii.) whose teachers approve the expression by the pupils of gender stereotyped views about the roles of women as homemakers and child minders and the role of men as the breadwinners; (iii.) where girls are always required to wait for an hour during the school day so that the boys can take a break first; and (iv.) where no, or no sufficient, consideration is given to promoting equal  opportunity, is a school where a strict sex segregation policy subjects girls to a greater risk of extreme and intolerant views and is likely to reinforce or create misogynist attitudes amongst the boy pupils towards them.

She also points out that the Equality Act contains an exception for single-sex schools, i.e. schools that only admit students of one sex.

The Court also issued a press summary of its decision.  Schools Week reports on the decision.

Recent Articles of Interest

From SSRN:

• Rex Ahdar, Is Freedom of Conscience Superior to Freedom of Religion?,(October 17, 2017).
• Teresa Stanton Collet, The Urgency of Restoring the Catholic (and Catholic) Nature of Higher Education, (Leisure and Labor Conference, Ignatius Press (2017, Forthcoming)).
• Hillel Y. Levin, Why Some Religious Accommodations for Mandatory Vaccinations Violate the Establishment Clause, (Hastings Law Journal, Vol. 68, 2017).
• Terri Day & Danielle Weatherby, Contemplating Masterpiece Cakeshop, (Washington and Lee Law Review, Forthcoming).
• Michael A. Helfand, When Judges are Theologians: Adjudicating Religious Questions, (Forthcoming, Research Handbook on Law & Religion (Rex Ahdar ed., Edward Elgar Publishers 2018).
• Jill E. Family, Trump's Travel Ban and the Limits of the US Constitution, (El Espacio de Libertad, Seguridad y Justicia de la UE ante el CEDH, edited by Juan Ignacio Ugartemendía and Henri Labayle, 2018 Forthcoming).
• Robin Fretwell Wilson, Being Transgender in the Era of Trump: Compassion Should Pick Up Where Science Leaves Off, (Forthcoming, University of California Irvine Law Review).
• Reem Bahdi, Persona Non Grata: A Muslim Pilot, National Security and the Supreme Court of Canada, (Osgoode Hall Law Journal (55.1), Forthcoming).
• Re'em Segev, Should Law Track Morality?, (Criminal Justice Ethics, Vol. 36. No. 2, pp. 205-223, 2017).
• John Picton, Egoism and the Return of Charitable Gifts, (In R. Hickey, & H. Conway (Eds.), Modern Studies in Property Law (Vol. 9, pp. 175-194). Oxford: Hart (2017)).

Recent Prisoner Free Exercise Cases

In Davis v. Heyns, 2017 U.S. App. LEXIS 20377 (6th Cir, Oct 16, 2017), the 6th Circuit affirmed dismissal of an Muslim inmate's complaint that the only religious diet he could receive was the vegan diet.

In Cooper v. Bower, 2017 U.S. Dist. LEXIS 171529 (WD KY, Oct. 17, 2017), a Kentucky federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that he was not allowed to receive a copy of the Quran which had been ordered for him.

In Howard v. Connett, 2017 U.S. Dist. LEXIS 172130 (D NV, Oct. 17, 2017), a California federal district court reduced the punitive damages that had previously been awarded against two specific defendants on an inmate's complaint that his religious items were not returned when he was placed in a different cell, and his equal protection complaint that he was unable to attend Nation of Islam services.  The court refused to reduce punitive damages as to other claims.

In Cripe v. Gliddenn, 2017 U.S. Dist. LEXIS 172393 (SD IL, Oct. 18, 2017), an Illinois federal district court allowed a Jewish inmate to move ahead with his complaint that he was denied a kosher diet.

In Toney v. Harrod, 2017 U.S. Dist. LEXIS 173946 (D KA, Oct. 20, 2017), a Kansas federal district court allowed a Muslim inmate to move ahead against one defendant on his claim that his Ramadan meals were not served early enough.

In Johnson v. Little, 2017 U.S. Dist. LEXIS 174006 (D NV, Oct. 18, 2017), a Nevada federal district court refused to dismiss a Muslim inmate's complaint regarding the timing of his Ramadan meals.

In Moir v. Amdahl, 2017 U.S. Dist. LEXIS 174216 (SD IL, Oct. 19, 2017), an Illinois federal district court allowed a Muslim inmate to move ahead with his complaint that his prayer rug was confiscated.

In Sassi v. Dutchess County, 2017 U.S. Dist. LEXIS 174507 (ND NY, Oct. 20, 2017), a New York federal district court dismissed with leave to amend an inmate's claim that he was not permitted to access a Bible for seven days and was not permitted to participate in Bible study classes.

Minister May Move Ahead With "As Applied" Challenge to Disturbing-The-Peace Ordinance

In Roy v City of Monroe, (WD LA, Oct. 19, 2017), a Louisiana federal district court allowed plaintiff Clarence Roy to move ahead with an "as applied" First Amendment challenge to Monroe, Louisiana's disturbing-the-peace ordinance.  Roy is a minister who regularly preaches near a bar whose patrons are predominately gays and lesbians.  Police issued a summons for disturbing the peace to Roy when a woman complained that Roy had called her names, told her she was going to hell, and that her father was "the devil."  The court said in part:

In essence, the validity of Roy’s First Amendment as-applied claim “hinges on probable cause for [his] [summons]—a fact question for the jury.” ....  Accordingly, this claim cannot be resolved on summary judgment.... If Sergeant Booth had probable cause to arrest Roy under §12:153, “there could be no First Amendment violation.”...  However, if a jury finds there was no probable cause for Roy’s arrest, his First Amendment claim may be considered as well.

The court however dismissed a facial challenge, as well as a due process challenge, to the same Ordinance.

No Unemployment Benefits Where Religious Objections Leading To Resignation Were Not Disclosed

In Kelly v. Unemployment Compensation Review Board, (Commonwealth Ct. PA, Oct. 17, 2017), a Pennsylvania appellate court affirmed the denial of unemployment compensation benefits to an employee who resigned her job for religious reasons, but did not first inform her employer of her religious concerns.  In the case, petitioner Lori Kelly worked as a project manager for the University of Pittsburgh's Health Science's Tissue Bank. Kelly, who is Catholic, became concerned when she learned that some of the fetal tissue samples whose distribution she facilitated came from aborted fetuses.  However she complained at work only about the contentious relationship she had developed with her immediate supervisor.  The court concluded:

Respectful of Claimant’s religious beliefs, we must nevertheless affirm the order of the Board denying Claimant unemployment compensation benefits under Section 402(b) based on her failure to notify Employer of her religious objections to Employer’s use of fetal tissue in GUDMAP. Such notification would have provided Employer with an opportunity to accommodate her religious objections by transferring her to a project that did not involve the use of fetal tissue.

Quebec Enacts New Religious Neutrality Law

In Canada in Wednesday, Quebec's National Assembly passed Bill 62 (full text) which is designed to assure that those providing government services, including subsidized educational institutions, adhere to principles of religious neutrality.  Exceptions in the Act include those engaged in religious instruction in universities, or to prison or university chaplains.  In a section aimed at burqas, the Act bans both those furnishing government services, and those receiving them, from doing so with their face covered, though accommodations are possible. A UPI report on the new law suggests that it will prevent Muslim women who wear the burqa from visiting libraries or riding public buses.  The Act also provides criteria for granting religious accommodations to public employees. Among other things, any accommodation must be "consistent with the right for equality between women and men," and may "not compromise the principle of State religious neutrality." [Thanks to Scott Mange and Steven H. Sholk for the lead.]

USCIRF Condemns Pakistan's Blasphemy Convictions of Ahmadis

The U.S. Commission on International Religious Freedom issued a press release yesterday condemning Pakistan for sentencing three Ahmadis to death for blasphemy.  Voice of America reports that the three were sentenced Wednesday by a court in Pakistan's Punjab province.  The men were arrested in 2014 after village residents claimed they were tearing down a religious poster-- apparently an anti-Ahmadi poster.  Ahmadis consider themselves Muslims, but Pakistan does not recognize them as such and considers them heretics. USCIRF called on Pakistan to repeal their blasphemy laws and to release those in prison on blasphemy charges.

Court Dismisses Parents' Complaint of Coerced Baptism of Son

In Defibaugh v. Big Brothers/ Big Sisters of Northeast Ohio Board of Trustees,  (ND OH, Oct. 16, 2017), an Ohio federal district court dismissed a suit by parents of a minor child who contend that the mentor assigned by a juvenile court to their minor son coerced him into being baptized against the wishes of his parents. They also claim that their son's guardian ad litem preached to the family about Christianity. The court held that the various defendants were not state actors or had judicial immunity.  Friendly Atheist blog has more on the case.

4th Circuit: Latin Cross War Memorial Violates Establishment Clause

In American Humanist Association v. Maryland-National Capital Park and Planning Commission, (4th Cir., Oct. 18, 2017), the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that a 40-foot tall Latin Cross on government property created as a World War I Veterans' Memorial violates the Establishment Clause.  The majority summarized its holding:

The monument here has the primary effect of endorsing religion and excessively entangles the government in religion. The Latin cross is the core symbol of Christianity. And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George’s County, Maryland; and maintained with thousands of dollars in government funds. Therefore, we hold that the purported war memorial breaches the “wall of separation between Church and State.”

Chief Judge Gregory, dissenting in part, said:

I conclude that a reasonable observer would understand that the Memorial, while displaying a religious symbol, is a war memorial built to celebrate the forty-nine Prince George’s County residents who gave their lives in battle. Such an observer would not understand the effect of the Commission’s display of the Memorial—with such a commemorative past and set among other memorials in a large state park— to be a divisive message promoting Christianity over any other religion or nonreligion. A cross near a busy intersection "need not be taken as a statement of governmental support for sectarian beliefs...."

Baltimore Sun reports on the decision.

Church Can Move Ahead With RLUIPA Challenges To Zoning Refusal

In Hunt Valley Baptist Church, Inc. v. Baltimore County, Maryland, (D MD, Oct. 17, 2017), a Maryland federal district court held that a Baptist church can proceed with challenges under RLUIPA as well as with Free Exercise and Equal Protection challenges to the county's refusal to grant it a special exception under its zoning laws to allow construction of a place of worship and related facilities. The court said in part:

... [T]he Church has stated a substantial burden claim under 42 U.S.C. §2000cc(a)(1) because it has plausibly alleged that it had a reasonable expectation that it could build a house of worship on the Property if it satisfied the conditions. Moreover, the Church alleges that it complied with all of the objective standards under BCZR § 502.1 for the grant of a special exception. ....

HVBC has adequately alleged that it was treated less favorably than other religious denominations, and that the rejection of its application for a special exception ―was substantially motivated by hostility and animus toward the Church and its religious character, practices and denomination.

UPDATE: The court filed an amended opinion on Oct. 24, involving a change on the last page of the opinion as to dropping one of the defendants.

Another Court Enjoins Enforcement of Third Travel Ban

In International Refugee Assistance Project v. Trump, (D MD, Oct. 17, 2017), a Maryland federal district court became the second court (see prior posting) to bar enforcement of most of the third version of President Trump's travel ban.  As did the Hawaii federal district court the day before, the Maryland federal court held that the Presidential Proclamation violates provisions of the Immigration and Nationality Act that prohibit denial of immigrant visas on the basis of nationality.  Disagreeing with the Hawaii federal court, it held that the government had made an adequate fining of "detrimental interest" to justify the ban.

Reaching an issue that the Hawaii court had avoided, the Maryland federal court concluded that, like the prior two bans, the third travel ban also violates the Establishment Clause.  It concluded that the third version of the ban is merely "the inextricable re-animation of the twice-enjoined Muslim ban." The court said in part:

... [A] simple check on the demographics of the geographic area affected by the Proclamation, with a combined population that is predominantly Muslim, reveals that its impact closely aligns with religious affiliation....  Likewise, the inclusion of two non-majority Muslim nations, North Korea and Venezuela, does not persuasively show a lack of religious purpose behind the Proclamation. The Venezuela ban is qualitatively different from the others because it extends only to government officials, and the ban on North Korea will, according to Department of State statistics, affect fewer than 100 people....

Thus, while Defendants assert that the Proclamation’s travel ban was arrived at through the routine operations of the government bureaucracy, the public was witness to a different genealogy, one in which the President—speaking “straight to the American people,” ... announced his intention to go back to and get even tougher than in EO-1 and EO-2.... 

The reasonable observer using a “head with common sense” would rely on the statements of the President to discern the purpose of a Presidential Proclamation.... Here, those statements do not offer “persuasive” rejection of the President’s prior calls for a Muslim ban, or his stated intention to use a ban on certain “dangerous territory” to effectuate a Muslim ban, ... nor do they show that the stated intention to impose a Muslim ban has been “repealed or otherwise repudiated” 

The court, while issuing a nationwide injunction, limited its injunction to visa applicants who have a credible claim of a bona fide relationship with a person or entity in the United States, ad defined in prior litigation on the President's travel bans.  It also excluded travelers from Venezuela or North Korea. CNN reports on the decision.

Court Bars Enforcement of Most of Trump's Third Travel Ban

In State of Hawaii v. Trump,(D HI, Oct. 17, 2017), a Hawaii federal district court issued a nation-wide temporary restraining order barring enforcement of most portions of the latest, more focused, version of President Trump's travel ban. (See prior related posting.)  This version, set out in a Presidential Proclamation  and scheduled to take effect today, covers travel to the U.S. by nationals of eight countries.  The court banned enforcement of the Proclamation ("EO-3") against nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia.  Plaintiffs had not sought a ban on enforcing the provisions barring travelers from North Korea and some travelers from Venezuela.  The court summarized:

Ignoring the guidance afforded by the Ninth Circuit that at least this Court is obligated to follow, EO-3 suffers from precisely the same maladies as its predecessor: it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be “detrimental to the interests of the United States,” a precondition that the Ninth Circuit determined must be satisfied before the Executive may properly invoke Section 1182(f). Hawaii, 859 F.3d at 774. And EO-3 plainly discriminates based on nationality in the manner that the Ninth Circuit has found antithetical to both Section 1152(a) and the founding principles of this Nation. Hawaii, 859 F.3d at 776–79.

As with the 9th Circuit's earlier decision (see prior posting), this approach allowed the court to avoid reaching plaintiff's argument that the Proclamation amounts to an unconstitutional "Muslim ban."  Anticipating an appeal, the court also ruled that it would not stay its Order pending any appeal.  CNN reports on the decision.

UPDATE: On Oct. 20, the court converted the TRO to a preliminary injunction. (Full text of order.)

Israeli Court Fines Online "Jews-Only" Job Site

In Israel yesterday a Jerusalem trial court fined the online "Jewish Job List" NIS 40,000 ($11,371) for violating employment discrimination laws.  The site which lists jobs for employers who want to only hire Jews was found by the court to violate Israeli laws against employment discrimination on the basis of nationality or religion.  According to a report on the case in Hamodia:

The lawsuit received backing from the official government ombudsman for equality in the Labor Ministry, who said in a statement to the court that attempts to persuade the public to hire Jews, and not to hire Arabs, is “a serious violation of civil rights. The message is clear that promoting this kind of discrimination is against the values of the State of Israel, and removing this will be another step in providing an equal-opportunity job market,” he added.

California Governor Vetoes Expanded Labor Protections For Employees of Religious Organizations

On Oct. 15, California Governor Jerry Brown vetoed AB-569 (full text of bill) that would have expanded the employees who are protected against dismissal for their reproductive health choices.  The bill provides in part:

The Legislature finds that employees of religiously affiliated institutions are entitled to the same protections as any other employee under the California Labor Code, unless the employee is the functional equivalent of minister, and therefore subject to a “ministerial exception” as developed in First Amendment case law.

California's current Fair Employment and Housing Act does not cover any employees of non-profit religious associations or corporations (Sec. 12940(j)(4)).  Governor Brown's veto message said:

The California Fair Employment and Housing Act has long banned such adverse actions, except for religious institutions. I believe these types of claims should remain within the jurisdiction of the Department of Fair Employment and Housing.

In a press release on the governor's veto, ADF described the vetoed bill as one that "would have prohibited churches, religious colleges, religious non-profit organizations, and pro-life pregnancy care centers from having faith-based codes of conduct with regard to abortion and sexual behavior."

Plaintiff Argues that "Make America Great Again" Hat Is Religious Expression

The Gothamist this week reports that a plaintiff in a New York lawsuit against a West Village bar is defending against a motion to dismiss by claiming that his wearing of a "Make America Great Again" hat was religious expression.  Plaintiff Greg Piatek, a Philadelphia accountant, sued after he was allegedly insulted by the bartender and eventually removed from the bar because of the message on his hat. He now says that he was discriminated against because of his spiritual beliefs.  He argues that these beliefs are related to his sympathy for the victims of 9/11.

Church Feeding Homeless Denied Preliminary Injunction Because No Harm Imminent

In Compassion Church, Inc. v. City of Davenport, Iowa, (SD IA, Oct. 16, 2017), an Iowa federal district court refused to issue a preliminary injunction to prevent interference with a church serving breakfast to the homeless each day.  While in April zoning officials had issued a cease-and-desist order requiring the church to stop serving meals until it obtained rezoning, in May the city informed the church that it would not enforce the cease-and-desist order.  It also told the church that serving breakfast to the homeless was consistent with its current zoning classification.  The court concluded that plaintiffs had not shown the threat of irreparable harm since enforcement against it was unlikely.  Quad-City Times reports on the decision.

New California Law Bars State Role In Any Future "Muslim Registry"

On Sunday, California Governor Jerry Brown signed into law SB 31, the California Religious Freedom Act (full text).  As reported by Law Newz, the bill prevents any participation by local or state agencies in any federal "Muslim Registry" that might be developed.  As summarized in part by the Legislative Counsel's office:

The bill would prohibit a state or local agency or a public employee ... from providing or disclosing to the federal government personal information regarding a person’s religious beliefs, practices, or affiliation ... when the information is sought for compiling a database of individuals based on religious belief, practice, or affiliation, national origin, or ethnicity for law enforcement or immigration purposes. The bill would also prohibit a state agency from using agency resources to assist with any government program compiling such a database ... [and] would prohibit state and local law enforcement agencies ... from collecting personal information on the religious beliefs, practices, or affiliation of any individual, except as part of a targeted investigation ... or where necessary to provide religious accommodations.

Government Settles 13 Contraceptive Mandate Cases

According to a press release from Thomas Aquinas College, last Friday 74 plaintiffs in 13 cases around the United States entered a settlement agreement with the federal government in their lawsuits seeking religious exemptions from the Affordable Care Act contraceptive coverage mandate.  The settlement comes after the Trump Administration issued new rules providing broadened exemptions to individuals and entities with religious and moral objections to the ACA mandate. (See prior posting.) According to the press release:

Under the terms of the settlement, the government concedes that the HHS Mandate “imposes a substantial burden” on plaintiffs’ “exercise of religion” and, as such, “cannot be legally enforced, under RFRA, against Plaintiffs or their health plans.” The government therefore agrees to treat plaintiffs “as exempt from the Regulations or any materially similar regulation or agency policy.”

Christian School's Zoning Exclusion Did Not Violate RLUIPA

In Tree of Life Christian Schools v. City of Upper Arlington, (SD OH, Oct. 13, 2017), an Ohio federal district court held that Upper Arlington, Ohio's zoning law as applied to a Christian school did not violate the equal terms provision of RLUIPA.  In the case which has been in the courts for more than six years, the 6th Circuit Court of Appeals had instructed the district court to determine:

Are there nonreligious assemblies or institutions to which the court should compare Tree of Life Christian Schools because they would fail to maximize income-tax revenue, and if so, would those assemblies or institutions be treated equally to TOL Christian Schools?

The district court concluded:

Plaintiff’s proposed use of the Property as a school is not consistent with the regulatory purpose of the ORC Office and Research District–to maximize income, whereas permitted uses such as banks, hotels/motels, and hospitals do serve that purpose. Plaintiff, a religious school, is treated the same as every other nonreligious assembly or institution, such as secular schools, that do not maximize tax revenue as they are all prohibited from the ORC Office and Research District. Therefore, regardless of what test is applied, there is no nonreligious assembly or institution similarly situated that is being treated better than Plaintiff. 

Callista Gingrich Confirmed As Ambassador To The Vatican

According to AP, the U.S. Senate yesterday approved the nomination of Callista L. Gingrich to be Ambassador to the Holy See.  The vote was 70-23.  The new ambassador is the wife of former House Speaker Newt Gingrich. She is  president of Gingrich Productions where she has produced documentaries, including one focusing on Pope John Paul II.

Supreme Court Denies Review In 10 Commandments Case

The U.S. Supreme Court today denied certiorari in Bloomfield, NM v. Felix, (Docket No. 17-60, cert. denied 10/16/2017) (Order List).  In the case, a 3-judge panel of the 10th Circuit found that a Ten Commandments monument on a city hall lawn violates the Establishment Clause. (See prior posting.) The full 10th Circuit, over the dissent of two judges, denied en banc review. (See prior posting.) ADF issued a press release on the Supreme Court's denial of review.

Couple Sues Over Catholic Charities Refusal To Allow Adoption

AP reports that a North Dakota couple is suing Catholic Charities for $6.5 million because the organization refused to allow them to adopt a 15-year old girl who was in foster care.  The refusal was based on the fact that the adopting couple, in violation of Catholic religious teachings, were living together and were not yet married.  Their planned wedding was 5 months away and they had hoped the 15-year old would be a bridesmaid.

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.

Recent Articles of Interest

From SSRN:

• Marc O. DeGirolami, On the Uses of Anti-Christian Identity Politics, (Religious Freedom and LGBT Rights: Possibilities and Challenges for Finding Common Ground (Robin Fretwell Wilson & William Eskridge eds., Cambridge University Press, Forthcoming)).
• Adam Hersh, Daniel in the Lion's Den: A Structural Reconsideration of Religious Exemptions from Nondiscrimination Laws Since Obergefell, (Stanford Law Review, Forthcoming).
• Marc O. DeGirolami, The Two Separations, (The Cambridge Companion to the First Amendment and Religious Liberty (Michael Breidenbach & Owen Anderson eds., Cambridge University Press, Forthcoming)).
• Michael J. Perry, Conscience v. Access and the Morality of Human Rights, With Particular Reference to Same-Sex Marriage, (William Eskridge and Robin Fretwell Wilson (eds.), Religious Freedom, LGBT Rights, and the Prospects for Common Ground (Cambridge University Press), Forthcoming).
• Robin Bradley Kar, Transformational Marriage: How to End the Culture Wars Over Same-Sex Marriage, (The Contested Place of Religion in Family Life (Cambridge University Press 2018) (Robin Fretwell Wilson, ed.), Forthcoming).
• John Osogo Ambani, A Triple Heritage of Sexuality? Regulation of Sexual Orientation in Africa in Historical Perspective, (Sylvie Namwase & Adrian Jjuuko, Protecting the Human Rights of Sexual Minorities in Contemporary Africa, Pretoria University Law Press, 2017).
• Nathan B. Oman, Commerce, Religion, and the Rule of Law, (Journal of Law, Religion & the State, (Forthcoming)).
• Zachary D. Kaufman, Jesner v. Arab Bank: U.S. Foreign Policy and National Security Interests, (Just Security, 2017).
• Mark Stern, et. al., The Judicial and Generational Dispute over Transgender Rights, (Stanford Law & Policy Review, Vol. 29, No. 1, Forthcoming).
• Mark Strasser, Marriage, Divorce, and Domicile, (85 University of Missouri-Kansas City Law Review 145-86 (2016)).
• Dana Brakman Reiser, Disruptive Philanthropy: Zuckerberg, the Limited Liability Company, and the Millionaire next Door, (Brooklyn Law School, Legal Studies Paper No. 536 (2017)).

From SmartCILP:

• J. Shoshanna Ehrlich, Ministering (In)justice: The Supreme Court's Misreliance on Abortion Regret in Gonzales v. Carhart, [Abstract],17 Nevada Law Journal 599-617 (2017).
• Rene Reyes, The Mixed Blessings of (Non-)Establishment, 80 Albany Law Review 405-428 (2016-2017).
• Lisa Shaw Roy, The Unexplored Implications of Town of Greece v. Galloway, 80 Albany Law Review 877-891 (2016-2017).

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.

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.

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.)