Religion Clause

Wednesday, November 08, 2017

6th Circuit Dismisses Challenge To Michigan Procedures For Vaccination Exemption

In Nikolao v. Lyon, (6th Cir., Nov. 7, 2017), the U.S. 6th Circuit Court of Appeals ordered dismissal of a challenge to Michigan's procedures for granting school children a religious exemption from vaccination requirements. In order to obtain an exemption, a parent is required to visit the local health department and explain the basis for the objection. A health worker must certify that the parent has received education on the benefits of immunizations and the risks involved in not receiving them. Also the state has published a series of "Waiver Notes" containing responses to parental objections, including religious objections. The court held that plaintiff, a mother who asserted her Catholic religious beliefs as the basis for the request, lacked standing to raise a free exercise claim, saying in part:

While Nikolao has presented facts suggesting that she was exposed to religious information with which she did not agree, she has given no indication that the information coerced her into doing or not doing anything. Nikolao went to the WCDH to receive a vaccination exemption and left with one.

The court found that plaintiff did have standing to assert an Establishment Clause claim, but concluded that no Establishment Clause violation was shown, saying in part:

The Certification Rule only requires local health workers to have a conversation with objecting parents.... As part of that conversation, the state may offer its own take on a parent’s objections. But the Certification Rule does not allow state officials to withhold an exemption based on the legitimacy of those objections. Were that the case, the outcome here may very well be different....

Similarly, the Religious Waiver Note does not violate the Establishment Clause. The Note outlines a health department worker’s available responses to religious objections concerning vaccination. To be sure, this document contains information about specific religions.... But, again, the purpose of providing this information is secular.

[Thanks to Tom Rutledge for the lead.]

Tuesday, November 07, 2017

USDA Memo Gives Meat Packing Plants Broad Religious Speech Protection

ADF reported yesterday on a new Guidance Memorandum on First Amendment Policy issued by the U.S. Department of Agriculture Office of Food Safety (full text), and a related Q&A webpage. While the Guidance Memorandum appears to flow from President Trump's Executive Order Promoting Free Speech and Religious Liberty issued in May (see prior posting), and a follow-on Memo from the Secretary of Agriculture, it also resolves a particular dispute relating to a Michigan meat-packing plant. Federal meat inspectors working at the plant had removed an article placed on the plant's break room table that expressed religious views opposed to same-sex marriage. Apparently a USDA official, invoking an Obama-era Policy Statement on sexual harassment, had threatened to withdraw all its inspectors if the article reappeared. The new Guidance Memorandum gives broad permission for employees and supervisors at meat plants to express religious views, saying in part:

Employees are permitted to engage in religious expression directed at fellow employees and may attempt to persuade other employees of the correctness of their views. Religious views should be treated the same as any other comparable speech not involving religion. Proselytizing is as entitled to constitutional protection as any other form of speech.

Supervisors are also free to engage in speech about religion. While supervisors may not impose unfair work conditions on employees who do not share their religious beliefs, their personal views concerning religion are still protected by the First Amendment. As a result, supervisors may also express their sincere religious views without fear of sanctions.

Some employers in facilities that are inspected by USDA may wish to display religious icons, religious pamphlets, or faith-based messages in publicly available work areas or on public websites. Others may support employee religious organizations and openly express their own religious beliefs or practices in the workplace. USDA employees must act to avoid the limiting or chilling of protected speech.

The Guidance Memorandum adds that USDA employees who believe they are subject to discrimination, harassment or intimidation may still exercise their rights.

University's Anti-Harassment Policy Upheld Over Prof's Free Speech Claims

In Board of Trustees of Purdue University v. Eisenstein, (IN App., Oct. 30, 2017), and Indiana Court of Appeals held that a trial court should have dismissed a lawsuit brought by an associate professor at Purdue University Calumet against the university, its board of trustees and several of its faculty members. Associate Professor Maurice Eisenstein was accused by several students and faculty of making anti-Muslim and anti-Black statements in his Introduction to Judaism class and in Facebook postings. A number of students and faculty, as well as the Muslim Student Association, filed harassment complaints against Eisenstein. Subsequently Eisenstein made derogatory comments to two of the faculty who had complained, and they filed additional charges of retaliation. The university ultimately upheld only the retaliation claims. Eisenstein then sued claiming, among other things, that the university's retaliation policy is unconstitutionally vague and that his free speech rights were infringed. He also alleged breach of contract and other claims. In a 42-page opinion, the court rejected Eisenstein's claims on a number of grounds. Inside Higher Ed reports on the decision.

Canada's Supreme Court Hears Arguments In Ecclesiastical Abstention Case

On Nov. 2, the Supreme Court of Canada heard oral argument (video of full oral arguments) in Judicial Committee of the Highwood Congregation of Jehovah's Witnesses v. Wall. Links to the briefs of the parties and a number of intervenors are also available online. ReligiousLiberty.tv reports on the case. In the case, the Alberta Court of Appeals in a 2-1 decision held that Canadian civil courts have jurisdiction to review a formal decision by a Jehovah's Witness congregation to disfellowship one of its members. (See prior posting.) [Thanks to Michael Peabody for the lead.]

Monday, November 06, 2017

Trump Sends Holiday Greetings To Sikhs

On Nov. 4, the White House released a statement (full text) from President Trump sending "warm wishes to Sikh Americans and Sikhs around the world as they celebrate the birth anniversary of Guru Nanak Devji, the founder and first guru of Sikhism."

Sunday, November 05, 2017

Citizenship Applicant Challenges "So Help Me God" In Naturalization Oath

Represented by activist Michael Newdow, a French citizen who is a permanent U.S. resident living in Massachusetts filed suit last week challenging the inclusion of the phrase "so held me God" in the Naturalization Oath. The complaint (full text) in Perrier-Bilbo v. Congress of the United States, (D MA, filed 11/2/2017), contends that the presence of these words in the oath violates the Establishment Clause, free exercise clause, RFRA, as well as plaitiff's due process and equal protection rights. The citizenship application by Plaintiff, who is an atheist, was approved in 2009. When she objected to the form of the oath at that time, was told that she could either participate in the oath ceremony and omit the “so help me God” language, or schedule a private oath ceremony where the government would not use that phrase. Neither of those alternatives are acceptable to her. Her complaint contends in part:

By its very nature, an oath that concludes “so help me God” is asserting that God exists..... Moreover, even if the current oath were constitutional, the government of the United States has rendered Plaintiff, on the basis of her sincerely held religious beliefs, unable to take the oath that all others take. This is unfair, demeaning and improper. Plaintiff is unwilling to start her new life as an American citizen in some second-class status solely because she chooses to follow her religious precepts. Under the principles of equal protection, she demands the right to experience the elation, the pride, the sense of camaraderie, and the sense of belonging, which comes from joining her fellow new citizens as an equal participant in the naturalization oath ceremony.

Sacramento Bee reports on the lawsuit.

Recent Prisoner Free Exercise Cases

In Bethel v. Jenkins, 2017 U.S. App. LEXIS 22061 (6th Cir., Sept. 22, 2017), the 6th Circuit held that a district court correctly dismissed an Establishment Clause challenge, but should not have dismissed a free speech and procedural due process challenge, to a policy that barred inmate from receiving printed material ordered by a third party even directly from an approved vendor.

In Hargrove v. Holley, 2017 U.S. Dist. LEXIS 180284 (SD OH, Oct. 31, 2017), an Ohio federal magistrate judge recommended dismissal of an inmate's claim that compelled schooling without an Islamic curriculum violates his free exercise rights.

In Harris v. Cooper, 2017 U.S. Dist. LEXIS 181249 (ND CA, Nov. 1, 2017), a California federal magistrate judge allowed an inmate to move ahead against certain defendants with his claim that in a cell search his religious materials were confiscated as retaliation and part of a conspiracy to deny him parole because he is a Muslim.

In Maciejka v. Williams, 2017 U.S. Dist. LEXIS 182842 (SD L, Nov. 2, 2017), a Florida federal magistrate judge recommended ordering plaintiff, a former inmate, to file an amended complaint if he wishes to move ahead with his rambling allegations that while confined he was kept from attending Catholic religious services, and could not celebrate holidays, see chaplains or priests or keep religious publications and religious items such as a rosary and scapular.

Ecclesiastical Abstention Doctrine Does Not Bar School Administrator's Contract Claim

In Saint Augustine School v. Cropper, (KY Sup. Ct., Nov. 2, 2017), the Kentucky Supreme Court held that the ecclesiastical abstention doctrine does not prevent the former lay administrator of a Catholic elementary school from asserting a breach-of-contract claim, saying in part:

Saint Augustine's justification for the Cropper's dismissal stems from declining student enrollment and shrinking revenues. No matter the extent of Cropper's involvement in the religious life of Saint Augustine; adjudicating her damages claim for breach of her employment contract does not require the secular court's "wading into doctrinal waters"; it is simply the termination of the lay administrator at a parochial school. Even if Cropper had been a prominent actor in the religious life of the community, unless Saint Augustine- fired her for reasons associated with the application of church doctrine or governance, the ecclesiastical-abstention doctrine would not apply.

In the case, the school had specifically disclaimed reliance on the ministerial exception defense.

Saturday, November 04, 2017

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.]

Friday, November 03, 2017

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.

Thursday, November 02, 2017

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.

Wednesday, November 01, 2017

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.

Tuesday, October 31, 2017

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.

Monday, October 30, 2017

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.

Sunday, October 29, 2017

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.

Saturday, October 28, 2017

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.

Friday, October 27, 2017

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.]

Thursday, October 26, 2017

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.

Wednesday, October 25, 2017

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.)

Tuesday, October 24, 2017

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.

Monday, October 23, 2017

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.

Sunday, October 22, 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.

Friday, October 20, 2017

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.]

Thursday, October 19, 2017

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.

Wednesday, October 18, 2017

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.

Tuesday, October 17, 2017

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.

Monday, October 16, 2017

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.