Recent Articles of Interest

From SSRN:

• Ronald Niezen, Power Through Testimony: Reframing Residential Schools in the Age of Reconciliation (Foreword), (March 2017, ISBN: 978-0774833899).
• Katherine M. Franke & Elizabeth Reiner Platt, Amicus Brief to U.S. Supreme Court in Masterpiece Cakeshop v. Colorado Human Rights Commission, (Columbia Public Law Research Paper No. 14-566 (Oct. 2017)).
• Paul Johnson, Robert M. Vanderbeck & Silvia Falcetta, Religious Marriage of Same-Sex Couples: A Report on Places of Worship in England and Wales Registered for the Solemnization of Same-Sex Marriage, (November 24, 2017).
• Steven G. Calabresi, The Free Exercise of Religion, (Northwestern Public Law Research Paper No. 17-26 (Nov. 2017)).
• Douglas NeJaime & Reva Siegel, Religious Accommodation, and Its Limits, in a Pluralist Society, (Religious Freedom and LGBT Rights: Possibilities and Challenges for Finding Common Ground (Robin Fretwell Wilson & William N. Eskridge, Jr. eds., Cambridge Univ. Press 2018 Forthcoming).
• Santiago Legarre, A New Natural Law Reading of the Constitution, (78:3 Louisiana Law Review (2018 Forthcoming)).
• Ellen P. Aprill, Amending the Johnson Amendment in the Age of Cheap Speech, (University of Illinois Law Review On-Line (Forthcoming)).
• Khaled A. Beydoun & Abed Ayoub, Executive Disorder: The Muslim Ban, Emergency Advocacy, and the Fires Next Time, (22 Michigan Journal of Race & Law 215 (2017)).
• Abenaa Owusu-Bempah, Hate Crime and the Legal Process: Options for Law Reform, (LSE Law - Policy Briefing Paper No. 29 (Nov. 2017)).
• Robert Leckey, Judging in Marriage's Shadow, (Feminist Legal Studies, Forthcoming).

From SSRN (Comparative religion and law, jurisprudence):

• Jainlin Chen, Chapter 2, The Law and Religious Market Theory: China, Taiwan and Hong Kong, (Cambridge University Press 2017).
• Joseph E. David, Love, Law and the Judeo-Christian Separation-Individuation,(November 15, 2017).
• Joseph E. David, Divinity, Law, and the Legal Turn in the Study of Religions, (May 15, 2017).
• Lua K. Yuille, Creating a Babel Fish for Rights & Religion: Defining 'Rights' Through Sacred Texts, (25 Transnational Law & Contemporary Problems 309-361 (2016)).

From SSRN (Islamic law and society):

• Intisar A. Rabb, The Curious Case of Bughaybigha, 661–883: Land and Leadership in Early Islamic Societies, (Justice and Leadership in Early Islamic Courts, Edited by Intisar A. Rabb and Abigail Krasner Balbale (2017)).
• Fajri Matahati Muhammadin & Hanindito Danusatya, De-Secularizing Legal Education in Indonesia: Examining the 'Introduction to Jurisprudence' Textbooks on Norm Classification, (International Seminar on Islamic Civilization and Thought (2017), Conference Proceeding).

From SmartCILP:

• Shai Silverman, Before the Godly: Religious Arbitration and the U.S. Legal System, 65 Drake Law Review 719-779 (2017).
• Lucien J. Dhooge, The Equivalence of Religion and Conscience, [Abstract], 31 Notre Dame Journal of Law, Ethics & Public Policy 253-292 (2017).

Recent Prisoner Free Exercise Cases

In Eckstrom v. Beard, (9th Cir., Nov. 30, 2017), the 9th Circuit affirmed the dismissal of an inmate's claim that the prison's book policy violates his free exercise rights.

In Shaw v. Kaemingk, 2017 U.S. Dist. LEXIS 195018 (D SD, Nov. 28, 2017), a South Dakota federal district court allowed an inmate to move ahead with his complaint that authorities in numerous ways refused to accommodate his practice of Dorcha Cosàn as well as with his retaliation and other claims.

In Crowder v. Jones, 2017 U.S. Dist. LEXIS 195779 (SD IN, Nov. 29, 2017), an Indiana federal district court refused to find that a federal prison inmate had a Bivens implied private right of action against a prison chaplain for denial of a kosher diet.  The court relied largely on the Supreme Court's June 2017 decision in Ziglar v. Abbasi.

In Ali v. Duboise, 2017 U.S. Dist. LEXIS 196881 (ND OK, Nov. 30, 2017), an Oklahoma federal district court dismissed on qualified immunity grounds a Muslim inmate's complaint that he was told to pray only outside his cell and was threatened, pushed and locked up temporarily when he asked for a more specific location.

In Valerio v. Wrenn, 2017 U.S. Dist. LEXIS 196632 (D NH, Nov. 29, 2017), a New Hampshire federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 196999, Oct. 23, 2017) and allowed an inmate to move ahead with his complaint that his religious freedom was violated when he was subjected to a visual body cavity search in front of other inmates after being denied a privacy screen.

In Abreu v. Jaime, 2017 U.S. Dist. LEXIS 197323 (ED CA, Nov. 29, 2017), a California federal magistrate judge recommended dismissing an inmate's complaint alleging retaliation for appealing denial of Muslim prayers, and alleging denial of religious meals during a transfer.

In Kanatzar v. Cole, 2017 U.S. Dist. LEXIS 198067 (D KS, Dec. 1, 2017), a Kansas federal district court concluded that a Jewish inmate had adequately alleged a claim against two defendants for failure to provide properly prepared kosher food, and was given 30 days to file an amended complaint as to many other claims/

In Silverman v. Humboldt County Correctional Facility, 2017 U.S. Dist. LEXIS 198208 (ND CA, Dec. 1, 2017), a California federal magistrate judge allowed a Jewish inmate to move ahead with his claim seeking a kosher diet.

In Kollock v. Beemer, 2017 Pa. Commw. LEXIS 994 (PA Commnwlth. Ct., Nov. 30, 2017), a Pennsylvania appellate court rejected contentions by an inmate convicted of sexual offenses that the requirement he complete a program which includes admission of guilt in order to obtain parole violates his religious rights.  The inmate contended that this requires him to "bear false witness" against himself.

Suit Challenges Illinois Law Allowing Public Funds to Be Used To Cover Abortions

Last week, various Illinois right-to-life groups and several Illinois legislators filed a taxpayer lawsuit in state court challenging House Bill 40 which is scheduled to go into effect on January 1. The bill eliminates the prior ban on coverage for abortions by the state employees' insurance program and by the state's Medicaid program.  The law also eliminates a prior provision in state law that declared that an unborn child is a human being from the time of conception.  The complaint (full text) in Springfield Right to Life v. Norwood, (IL Cir. Ct., filed 11/30/2017) contends that funds cannot be expended on abortions because no appropriation has been made, and challenges the effective date of the law.  Thomas More Society issued a press release announcing the filing of the lawsuit.

Senate Version of Tax Bill Does Not Include Johnson Amendment Repeal

Vox has made available a "preliminary version" of the final Senate tax reform bill  (full text) passed early Saturday morning.  Repeal of the Johnson Amendment that was part of the House version did not make its way into the version of the bill passed by the Senate.  This will be one of many differences between the House and Senate versions that will need to be resolved by the Conference Committee.

Developments In Church Eligibility For FEMA Aid

As previously reported, three Texas churches have filed suit in federal district court challenging FEMA's policy of refusing disaster aid for houses of worship. FEMA, which is in the process of reviewing its policy, has refused to answer the complaint despite the court setting a Dec.1 deadline. According to the Houston Chronicle, just before the deadline passed, a group of civil rights organizations filed an amicus brief defending FEMA's policy.  Three hours after that brief was filed, federal district judge Keith P. Ellison who was assigned to the case recused himself, without explanation.

Meanwhile, as reported by Christian Times, on Thursday the House Transportation and Infrastructure Committee approved and sent on to the full House H.R. 4460, the Disaster Recovery Reform Act (full text). Section 211 of that bill amends 42 USC Sec. 5172 to add:

A church, synagogue, mosque, temple, or other house of worship, and a private nonprofit facility operated by a religious organization, shall be eligible for [disaster relief] ..., without regard to the religious character of the facility or the primary religious use of the facility.

Canada Reports 2016 Hate Crime Statistics

Earlier this week, Statistics Canada released its report on Police-Reported Hate Crimes 2016, saying in part:

Police reported 460 hate crimes targeting religious groups in 2016, 9 fewer than in the previous year. These accounted for one-third of all hate crimes in Canada.

Following a notable increase in hate crimes against the Muslim population in 2015, police reported 20 fewer in 2016 for a total of 139. The decrease in police-reported hate crimes against Muslims was the result of fewer reported incidents in Quebec (-16), Alberta (-8) and Ontario (-6).

Similarly, after an increase in 2015, hate crimes against Catholics also decreased, from 55 to 27 in 2016. Ontario reported 16 fewer incidents, and declines were also seen in Quebec (-7) and the Atlantic provinces (-5).

In contrast, hate crimes against the Jewish population grew from 178 to 221 incidents. Increases were seen in Ontario (+31), Quebec (+11) and Manitoba (+7).

European Court Advocate General Opines On Eid al-Adha Slaughterhouses

In Moskeeën v. Gewest, (ECJ Adv. Gen., Nov. 30, 2017), the Advocate General of the European Court of Justice concluded in his recommendation to the court that Belgian authorities had not infringed the religious freedom of Muslims by ending the practice of creating temporary slaughterhouses to be used for Eid al-Adha.  His opinion reads in part:

90.      Inasmuch as it cannot, in my opinion, be held that any limitation of freedom of religion results from the general obligation to use approved slaughterhouses, the question of whether such a limitation is justified does not arise.

91.      Nevertheless, in the event that the Court of Justice does not support that conclusion and considers that the obligation to use approved slaughterhouses, which alone is being challenged in this case, constitutes an interference with freedom of religion in that it prevents practising Muslims from fulfilling their religious obligation during the Feast of the Sacrifice, I am of the opinion that there would then be no legitimate objective in the public interest such as might justify the existence of a limitation of that freedom.

The Court issued a press release summarizing the Opinion.

Believer In Mark of the Beast Entitled To Unemployment Comp

In Kaite v. Unemployment Compensation Board of Review, (PA Commnw. Ct., Nov. 29, 2017), a Pennsylvania appellate court reversed the Unemployment Compensation Board of Review and held that a suspended employee whose unemployment compensation claim was rejected was justified in refusing to comply with an employer's fingerprinting requirement. Petitioner Bonnie Kaite contended that "she was raised to believe that any marking on the hands or head is the mark of the devil and will prevent her from getting into heaven...."  The court went on to say:

The United States Supreme Court has held that a conditioning of the availability of benefits upon an employee’s willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties. Sherbert v. Verner, 374 U.S. 398, 406 (1963).

Penn Live reports on the decision. [Thanks to Tom Rutledge for the lead.] 

Suit Challenging Indiana Charter School Law Mostly Survives Motion To Dismiss

In Indiana Coalition for Public Education v. McCormick, (SD IN, Nov. 29, 2017), an Indiana federal district court refused to dismiss standing and Establishment Clause challenges by an education advocacy group to the provision in Indiana's Charter School Act that gives religious institutions the power to authorize charter schools.  The court said in part:

Authorizers make important decisions about who may establish charter schools and under what circumstances a charter school may be established, which includes details such as the educational methodology the school will employ. Additionally, charter schools are publicly funded and, insofar as they draw students from public school corporations, their funding may result in a shift of public funds away from other schools. These decisions, when made by a religious institution, may raise Establishment Clause concerns....

The court however dismissed federal and state constitutional challenges to a provision that allows religious authorizers’ to receive an administrative fee of 3% of state funding.

Trump's Retweets of Islamophobic Videos Distress British Leaders

The Independent this morning reports that Donald Trump's retweeting of Islamophobic videos first posted by Jayda Fransen, deputy leader of the far-right Britain First movement, has caused consternation among British leaders. 

Suit In Belgium Challenges Wallonia's Ban On Kosher Slaughter

In Belgium yesterday, the Coordinating Committee of Jewish Organizations of Belgium (CCOJB) filed suit in the country's Constitutional Court challenging a law passed in May by the parliament of the Walloon Region that effectively bans kosher and halal slaughter.  A similar lawsuit is likely to be filed early next year challenging a similar law passed in July by the parliament of Flanders-- where half of Belgium's Jews live and where many kosher slaughtering facilities are located.  Reporting on the lawsuit, European Jewish Press quote the president of CCOJB who said:

Irrespective of its justification, a ban on kosher meat production sends a message to Belgian Jews that they can choose between living in Belgium and practicing their religion, but they cannot do both. It sends a clear message to Belgium’s Jewish and Muslim communities that they are not welcome here. This is a violation of Belgian constitutional principles,  EU law, and the freedom of religion enshrined as a fundamental right - we will challenge it as such, in Wallonia and in Flanders.”

While the law was pending, a regional court had questioned its constitutionality. (See prior posting.)

DC Archdiocese Sues Over Rejection of Christmas Season Bus Ads

The Washington, D.C. Catholic Archdiocese yesterday filed suit in federal district court against the Washington Metropolitan Area Transit Authority after WMATA rejected ads designed to be placed on the exterior of buses promoting the Archdiocese's "Find the Perfect Gift" Campaign.  The complaint (full text) in Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, (D DC, filed 11/28/2017), describes the ads:

the advertisements depict, in minimalist style, a starry night, with silhouettes of a small group of shepherds and sheep standing on a hill. All of the advertisements refer to an Internet site, FindThePerfectGift.org, which contains links to Mass schedules, opportunities for charitable service, information about religious holiday traditions, and reflections on the meaning of the Advent and Christmas seasons. The advertisements also refer to a social-media hashtag, #PerfectGift.

The WMATA advertising Guidelines prohibit ads that "promote or oppose any religion, religious practice, or belief."  The complaint alleges that the Guidelines as applied to this ad violate the Archdiocese's 1st amendment free speech and free exercise rights, RFRA, as well as denying it equal protection and due process.  The Archdiocese issued a press release announcing the filing of the lawsuit.

Magazine Profiles Christian Advocacy Organization

The Nation today published a long article titled The Christian Legal Army Behind ‘Masterpiece Cakeshop’: A special investigation into the rise of Alliance Defending Freedom.  Here is a short excerpt:

The overarching story highlighted in this substantial body of ADF’s briefs—most of which are available in public databases—is the organization’s painstaking construction, case by case and argument by argument, of a legal narrative asserting that Christians are under threat of persecution from the advance of LGBTQ and reproductive rights, as well as from secular schools and universities, and that the law must allow Christians to disregard, disobey, or even dismantle laws protecting those rights in order to protect their own rights to free speech and the free exercise of religion.

Indonesian Christians Get Temporary Stay of Deportation

In Devitri v. Cronen, (D MA, Nov. 27, 2017), a Massachusetts federal district court issued a temporary injunction barring the federal government from removing 51 Indonesian Christians who fear religious persecution if their final Orders of Removal are implemented. As explained by the court:

In 2010, Immigration and Customs Enforcement (“ICE”) instituted a humanitarian program called Operation Indonesian Surrender, through which Petitioners were granted Orders of Supervision, allowing them to seek employment and subjecting them to certain mandatory conditions. Petitioners also received temporary stays of removal that were renewed over multiple years. In the summer of 2017, these individuals were informed that they would be removed from the United States.

Petitioners claim that they need additional time to exercise their statutory right to move to reopen their cases based on changed country conditions that arose after their Orders of Removal became final. The court asked the government for additional briefing on how long the temporary injunction should remain in effect to give a reasonable time to file a motion to reopen.  ACLU issued a press release announcing the court's decision.

China Bans Tours To The Vatican

According to a report yesterday by UCA News, in China the State Tourism Bureau has sent a directive to travel agencies instructing them to end tours to the Vatican.  Travel agencies were instructed to remove the Vatican and St. Peter's Basilica from their list of tour destinations.  Any travel agency advertising those destinations will be subject to a fine equivalent to $45,430(US).  The directive apparently stems from the long simmering tensions between Beijing and the Holy See.

Abortion Clinic Buffer Zone Upheld

In Bruni v. City of Pittsburgh, (WD PA, Nov. 17, 2017), a Pennsylvania federal district court, in a case on remand from the 3rd Circuit (see prior posting), granted summary judgment to defendants in a case challenging Pittsburgh's ordinance that imposes a 15-foot buffer zone around abortion clinics and other health care facilities.  According to the court, "the undisputed evidence in this case demonstrates that the Ordinance places only a minimal burden on Plaintiffs’ First Amendment free speech rights."  The court went on:

Plaintiffs argue that the City should have considered any number of other alternatives prior to adopting the Ordinance, including targeted injunctions and/or the enforcement of antiharassment statutes.... [I]n light of the Court’s finding that the current law burdens very little speech to begin with, there is no reason to believe that any of these alternative measures would burden substantially less speech than does the current Ordinance.

BNA Daily Report for Executives [subscription required] reports on the decision.

White House Unveils This Year's Christmas Decorations

In a press release today, the White House announced that this year's White House Christmas decorations are themed "Time Honored Traditions." The press release and an ABC News report describe the decorations, selected by First Lady Melania Trump, in more detail. This year's family Christmas card, signed by the President, the First Lady and their son Barron, reads "Merry Christmas and Happy New Year."

Supreme Court Denies Review In School Board Prayer and Funeral Picketing Cases

Today the U.S. Supreme Court denied certiorari in American Humanist Association v. Birdville Independent School District, (Docket No. 17-178, cert. denied 11/27/2017). (Order List).  In the case, the 5th Circuit upheld a school board's practice of opening its meetings with presentations from students, which often involve a prayer.  It held that legislative prayer cases, not the decisions regarding school prayer, govern this situation. (See prior posting.)

The Supreme Court today also denied review in Phelps-Roper v. Ricketts, (Docket No. 17-427, cert. denied 11/27/2017). (Order List).  In the case the 8th Circuit upheld Nebraska's Funeral Picketing Law against both facial and as-applied challenges brought by members of the Westboro Baptist Church. (See prior posting.)

Massachusetts Court Will Hear Conservative Synagogue Suit Alleging Chabad Takeover

JTA reports on a lawsuit brought by members of a Sharon, Massachusetts Conservative Jewish synagogue that will be heard today in a  Massachusetts trial court.  Members of Temple Adath Sharon, in a lawsuit filed in November 2015, allege that Chabad of Sharon, which was experiencing financial difficulties, worked to have its members elected to the Conservative synagogue's board and as its officers in order to obtain a transfer of the synagogue's building and assets to Chabad.  It also claims that the April 2015 meeting that elected the board and officers was not properly announced and conducted. Chabad denies the allegations.

Recent Articles of Interest

From SSRN:

• Philip J. Candreva, Playground or Church? Implications for Public Administration from Trinity Lutheran v. Comer, (Public Administration Review, Forthcoming).
• Julie Ringelheim, State Religious Neutrality as a Common European Standards? Reappraising the European Court of Human Rights Approach, (Oxford Journal of Law and Religion, Vol. 6, no.1, p. 1-24 (2017)).
• Scott W. Gaylord, Is a Cake Worth a Thousand Words? Masterpiece Cakeshop and the Impact of Antidiscrimination Laws on the Marketplace of Ideas, (Tennessee Law Review, Vol. 85, Forthcoming).
• Mark Strasser, Obergefell's Legacy, (24 Duke Journal of Gender Law & Policy 61-88 (2016)).

From SmartCILP:

• Heidi Liu & Caleb C. Wolanek, Applying Strict Scrutiny: An Empirical Analysis of Free Exercise Cases, 78 Montana Law Review 275-312 (2017).
• Symposium, The Teachings of Pope Francis: Toward a Vision of Social Justice and Sustainable Capitalism? (Introduction by Steven W. Bender; articles by Michael Kaufman, Steven A. Ramirez, Nicholas Capaldi, Gilbert Paul Carrasco, Iryna Zaverukha, Russell Powell, Dean Vincent Rougeau, Amelia J. Uelmen). 40 Seattle University Law Review 1167-1415 (2017).
• Rev. John C. Lentz Jr., The Bystander in the Bible, 2017 Utah L. Rev. 661-705.
• Marcia L. McCormick, Religious Privilege to Discriminate as Religious Freedom: From Charitable Choice to Faith Based Initiatives to RFRA and FADA, 56 Washburn Law Journal 229-243 (2017).
• John R. Dorocak, How Might a Church's Tax-Exempt Status (and Other Advantages) Be Revoked Procedurally for Opposition to Same-Sex Marriage or Be Defended Possibly as Free Exercise of Religion?, [Abstract], 53 Willamette Law Review 161-184 (2017).
• Sarah M. Stephens, Freedom From Religion: A Vulnerability Theory Approach to Restricting Conscience Exemptions in Reproductive Healthcare, 29 Yale Journal of Law & Feminism 93-121 (2017).

Pakistan Troops Clash With Islamic Protesters Who Accuse Law Minister of Blasphemy

According to a report yesterday from BBC News, the government of Pakistan has deployed troops to the city of Islamabad to deal with protesters who have been blocking a key highway interchange for several weeks.  Protesters from the Islamist Tehreek-i-Labaik Ya Rasool Allah Party  are demanding the firing of Law Minister Zahid Hamid, claiming that he is guilty of blasphemy because of a provision in his 2017 Election Reform Bill passed by the National Assembly.

Here is the issue, as explained by Daily Pakistan. Under prior law, the nomination form that a candidate for office was required to complete included the following for all Muslim candidates:

I, the above mentioned candidate, solemnly swear that--

(i) I believe in the absolute and unqualified finality of the Prophethood of Muhammad (Peace be upon him), the last of the prophets and that I am not the follower of anyone who claims to be a Prophet in any sense of the word or of any description whatsoever after Prophet Muhammad (Peace be upon him), and that I do not recognize such a claimant to be Prophet or a religious reformer, nor do I belong to the Qadiani group or the Lahori group or call myself an Ahmadi.

In the 2017 legislation, this statement became an unsworn declaration by the candidate. Hamid said that this was a clerical error, and earlier this month Pakistan's National Assembly amended the 2017 Bill to restore this anti-Ahmadi provision as a sworn statement in the candidate nomination form. (TheNation).  That apparently did not assuage protesters' objections.  AP reports that at least 6 people were killed and 200 wounded in clashes yesterday between police and protesters in Islamabad.  Other opposition members of Parliament have different kinds of objections to other parts of the 2017 Bill.

UPDATE: Reuters (11/28) reports on the negotiated settlement of the conflict, though the military's role in the negotiations has raised questions.

Recent Prisoner Free Exercise Cases

In Brooks v. Walsh, (9th Cir., Nov. 22, 2017), the 9th Circuit upheld a qualified immunity defense in an inmate's suit because "it would not have been clear to every reasonable official that it was unlawful to require Brooks to fill out a Faith Group Affiliation Declaration form in order to reinstate his participation in the Common Fare diet after Brooks' voluntary withdrawal."

In King v. Stach, 2017 U.S. Dist. LEXIS 190788 (WD WA, Nov. 17, 2017), a Washington federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 191891, Oct. 19, 2017) and dismissed a Muslim inmate's complaint that unsanitary conditions in his safety/ observation cell made it impossible for him to perform his prayers, and that a corrections officer told him that he would be better off praying to Jesus.

In Veach v. Henderson County Detention Center, 2017 U.S. Dist. LEXIS 193177 (WD KY, Nov. 22, 2017), a Kentucky federal district court dismissed an inmate's complaint that on one occasion he was not given his Jewish meal tray.

In Rivera v. Davey, 2017 U.S. Dist. LEXIS 193607 (ED CA, Nov. 22, 2017), a California federal magistrate judge ordered dismissal unless an amended complaint is filed of an inmate's complaint that he was denied equal access to the facility's chapel for Jewish prayer services and holy day events.

Catholic Bishops Oppose Parts of Senate's Tax Reform Draft

Earlier this week, the chairman of the U.S. Conference of Catholic Bishops' Committee on Domestic Justice and Human Development issued a letter (full text) (press release)  criticizing the current version of the Senate's Tax Cuts and Jobs Act.  The letter calls for the Senate to amend its draft "to better ensure a just and moral framework for all."  While supporting some aspects of the bill, the Bishops expressed concern over a number of the provisions, analyzing them in light of six moral principles the Bishops had set fort in a statement on tax reform last October. Many of the criticisms focus on "care for the poor and concern for families."  Among the specific concerns expressed were opposition to repeal of the Affordable Care Act mandate without more comprehensive health care reform; concern that families with more than three children will find themselves in a worse tax situation that at present; concern that stricter rules regarding children’s social security numbers for the Child Tax Credit will make it difficult for immigrants to receive the benefit; and inadequate tax incentives for charitable giving.

Federal Court Strikes Texas' "Dismemberment Abortion" Ban

In Whole Woman's Health v. Paxton, (WD TX, Nov. 22, 2017), a Texas federal district court struck down Texas' ban on abortions performed through the standard dilation and evacuation procedure-- a procedure that the Texas law terms "dismemberment abortions."  The court said, in its 27-page opinion:

... [T]he Act prohibits the performance of an outpatient standard D&E abortion unless fetal demise occurs in utero before the fetus is removed from the woman. It is also undisputed that after approximately 15 weeks of pregnancy and before a fetus is viable, nationwide the most common second-trimester abortion is a standard D&E without inducing in utero fetal demise....

... [T]he State's legitimate interest in fetal life does not allow the imposition of an additional medical procedure on the standard D&E abortion  procedure not driven by medical necessity. Here the State's interest must give way to the woman's right. The Act does more than create a structural mechanism by which the State expresses profound respect for the unborn. The Act intervenes in the medical process of abortion prior to viability in an unduly burdensome manner.

Courthouse News reports on the decision. [Thanks to Scott Mange for the lead.]

UN Criminal Tribunal Convicts Mladić of Genocide and Crimes Against Humanity In Bosnian Conflict

Yesterday, in its final Trial Judgment, the United Nations International Criminal Tribunal for the Former Yugoslavia announced that Ratko Mladić, former Commander of the Bosnian Serb Army, has been found guilty of participating in joint criminal enterprises that committed genocide, crimes against humanity and violations of the laws or customs of war during the years 1992 to 1995.  The Tribunal, after a trial that extended over four years, found Mladić guilty on 10 of the 11 counts brought against him, including his participation in a joint criminal enterprise (JCE) to eliminate the Bosnian Muslims in Srebrenica:

The Chamber found that Mladić intended to carry out the objective of the Srebrenica JCE by destroying the Bosnian Muslims in Srebrenica, by killing the men and boys and forcibly removing the women, young children, and some elderly men. The Chamber therefore found Mladić guilty of genocide, persecution, murder, extermination, and the inhumane act of forcible transfer.

The Tribunal rejected a charge of genocide in other municipalities, though it convicted of crimes against humanity and violations of the laws or customs of war in those municipalities.

The Tribunal sentenced Mladić to life in prison.  The judgment may be appealed to the International Residual Mechanism for Criminal Tribunals.

The Criminal Tribunal yesterday also released a summary of the trial judgment and videos (Part I, Part II) of the Tribunal's reading of the judgment.  All the documents in the case, including the indictments and the trial transcripts are available online.  Voice of America reports on the decision.

President Trump's Thanksgiving Proclamation

Today is officially Thanksgiving.  The Thanksgiving Day 2017 Proclamation issued last week by President Trump sets the date.  It also recounts the history of the holiday and then goes on, in part, to say:

Today, we continue to celebrate Thanksgiving with a grateful and charitable spirit.  When we open our hearts and extend our hands to those in need, we show humility for the bountiful gifts we have received.  In the aftermath of a succession of tragedies that have stunned and shocked our Nation -- Hurricanes Harvey, Irma, and Maria; the wildfires that ravaged the West; and, the horrific acts of violence and terror in Las Vegas, New York City, and Sutherland Springs -- we have witnessed the generous nature of the American people.  In the midst of heartache and turmoil, we are grateful for the swift action of the first responders, law enforcement personnel, military and medical professionals, volunteers, and everyday heroes who embodied our infinite capacity to extend compassion and humanity to our fellow man.  As we mourn these painful events, we are ever confident that the perseverance and optimism of the American people will prevail.

...  We also offer a special word of thanks for the brave men and women of our Armed Forces.... As one people, we seek God's protection, guidance, and wisdom, as we stand humbled by the abundance of our great Nation and the blessings of freedom, family, and faith.

9th Circuit: Religious Sect's Attempt to Extort Land and Recruit May Create Basis For Asylum

In Singh v. Sessions, (9th Cir., Nov. 15, 2017), the U.S. 9th Circuit Court of appeals held that an immigration judge was incorrect when he rejected claims for asylum and withholding of removal by Harbans Singh who in India had suffered at the hands of the Dera Sacha Sauda which attempted to extort his land and recruit him for membership.  The court held that this could create a sufficient nexus to find religious or political persecution since "Singh’s refusal to join the DSS was inherently an act of religious expression." The court remanded the case for findings on additional issues. India West reports on the decision.

Another Court Enjoins Trump's Transgender Military Ban

Agreeing with a decision last month by a D.C. federal district court (see prior posting), yesterday in Stone v. Trump, (D MD, Nov. 21, 2017), a Maryland federal district court issued a preliminary injunction against President Trump's ban on transgender individuals serving in the military.  The court said in part:

President Trump’s tweets did not emerge from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest. Based on the circumstances surrounding the President’s announcement and the departure from normal procedure, the Court agrees with the D.C. Court that there is sufficient support for Plaintiffs’ claims that “the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.”

Going beyond the D.C. decision, the court found that plaintiffs have standing to challenge the ban on military spending for sex reassignment surgery and enjoined the Sex Reassignment Surgical Directive as well as the Retention and Accession Directives, pending final resolution of the lawsuit. Washington Post reports on the decision.

Court Refuses To Dismiss Constitutional Challenges To City's Civil Rights Law

In Country Mill Farms v. City of East Lansing, 2017 U.S. Dist. LEXIS 191658 (WD MI, Nov. 16, 2017), a Michigan federal district court refused to dismiss a number of plaintiff's constitutional challenges to a city's civil rights ordinance. Vendor Guidelines for East Lansing's Farmers' Market required vendors to comply with the civil rights ordinance as a general business practice. Country Mill Farms was denied a vendor permit because, while it hosts weddings at its orchard, it refuses on religious grounds to host same-sex weddings.  It announced its policy in a Facebook post.

The court allowed Country Mill to move ahead with an overbreadth challenge to a portion of the ordinance, saying in part:

The City is wrong that the Ordinance regulates only conduct. The Ordinance also regulates speech. Section 22-32 of the Code defines "harass" as including "communication which refers to an individual protected under this article." Section 22-31 prohibits harassment of any person based on a list of characteristics. And, Section 22-35(b)(2) prohibits the printing and publishing of certain statements and signs based on their content.

The court also refused to dismiss plaintiff's Free Exercise and Establishment Clause challenges (as well as an unconstitutional conditions challenge), saying in part:

Plaintiffs have alleged sufficient facts to state a plausible claim for a violation of their rights under the Free Exercise Clause. Plaintiffs have pleaded facts to support a claim that the City enacted a generally applicable and neutral policy, which was then used to target Plaintiffs' religiously-motivated conduct. The Ordinance did not apply to Plaintiffs in 2016. After the City learned that Plaintiffs would not hold same-sex weddings on their farms because of Plaintiffs' religious beliefs, the City amended the Vendor Guidelines to incorporate the neutral and generally applicable law and applied it to Plaintiffs. As pled, the City's action is a "veiled cover for targeting belief or a faith-based practice." ...

Plaintiffs have pled sufficient facts to state a plausible claim under the Establishment Clause. The facts in the complaint allow the Court to infer that the predominant purpose of the changes to the Vendor Guidelines was motivated by the disapproval of Plaintiffs' religious beliefs.

Various other challenges to the ordinance were dismissed. (See prior related posting.)

US Asks Supreme Court For Full Stay Pending Appeal of Injunction Against 3rd Travel Ban

As previously reported, a week ago the U.S. 9th Circuit Court of Appeals stayed in part the preliminary injunction issued by a Hawaii federal district court against enforcement of President Trump's third travel ban.  Yesterday, the government filed an application (full text) in the case (Trump v. State of Hawaii) seeking to have the preliminary injunction stayed completely while the case works its way through appeals to the 9th Circuit and to the Supreme Court.  According to a report from SCOTUSblog, the Justices have asked the challengers to file a response to the government's application by Nov. 28.

Court Strikes Down Health Clinic Buffer Zone

In Turco v. City of Englewood, New Jersey, (D NJ, Nov. 14, 2017), a New Jersey federal district court struck down as overbroad a city ordinance creating an 8-foot buffer zone around health care and transitional facilities.  The ordinance was a response to militant activists and aggressive protesters who congregated outside an Englewood abortion clinic. The court said in part:

Defendant created a sweeping regulation that burdens the free speech of individuals, not just in front of the Clinic, but at health care and transitional facilities citywide. To meet the narrowly-tailored requirement, Defendant must create an Ordinance that targets the exact wrong it seeks to remedy.

Liberty Counsel issued a press release announcing the decision.

Canadian Christian Couple Sues Over Alberta's Policy On Adoptions

In a lawsuit filed in Canada at the beginning of this month, an Evangelical Christian couple is challenging a decision by the Province of Alberta's Child and Family Services to refuse to approve them to adopt a child.  the refusal stemmed from the couple's Biblical views on marriage, sexuality and gender.  The complaint (full text) in C.D and N.D. v. Province of Alberta, (Q.B. AL, filed 11/1/2017), says that "Child and Family Services considered the Applicants' religious beliefs regarding sexuality a 'rejection' of children with LGBT sexual identities...."  It contends that the decision violates their rights under Canada's Charter of Rights and Freedoms. The Justice Centre for Constitutional Freedoms issued a press release announcing the filing of the lawsuit.

Public Shelter's "Blessing of the Animals" Challenged In Court

An Atheist group last week filed suit in a New Jersey federal district court challenging a county-run animal shelter's hosting for the second year in a row of a Blessing of the Animals event.  The complaint (full text) in American Atheists, Inc. v. Bergen County, (D NJ, filed 11/13/2017), objects to the use of public resources and employee time to promote and host a ritual that is performed by Franciscan clergy annually in honor of St. Francis of Assissi. Plaintiffs claim that the county has violated the Establishment Clause, the Equal Protection Clause and several provisions of the New Jersey Constitution.  American Atheists issued a press release announcing the filing of the lawsuit.

Cert. Petition Filed In Suit Over Police Investigation Interference With Prayer

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in Sause v. Bauer, (cert. filed 11/17/2017).  In the case, the U.S. 10th Circuit Court of Appeals dismissed on qualified immunity grounds a suit for damages alleging that police who were investigating a noise complaint violated plaintiff's 1st Amendment rights when an officer who had come to her home ordered her to get up and stop praying. (See prior posting.)  First Liberty issued a press release announcing the filing of the petition for review.

Pro-Life Group Sues Over City's Enforcement of Sign Ordinance

A suit was filed last week in a North Carolina federal district court by an anti-abortion group which contends that the city of Charlotte acted unconstitutionally when it applied an ordinance directed at preventing installation of permanent or semi-permanent signs and flyers in the public right of way to prevent plaintiffs' display of placards. The complaint (full text) in Cities4Life, Inc. v. City of Charlotte, (WD NC, filed 11/17/2017) alleges in part:

Defendants, through their enforcement of City Code § 10-212, prohibit speakers from resting their signs on the ground while they are assembled outside of abortion facilities and thereby restrict Plaintiffs’ right to free speech on significant portions of land. This restriction does not apply to many other types of signs whose content is different from those used by Plaintiffs. Defendants thus unconstitutionally restrict Plaintiffs’ rights because of the pro-life messages their signs convey.

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

Recent Articles of Interest

From SSRN:

• Preyanun Steannopkao, Phramaha Boonsri Yanavuddho, Suchao Ploychum & Chamnong Kanthik, An Integration of Buddhadharma in Performing Duties of Thai Lawyers, (PSAKU International Journal of Interdisciplinary Research (PSAKUIJIR), Vol. 5, No. 2, (July-December 2016)).
• Richard Albert & Yaniv Roznai, Religion, Secularism and Limitations on Constitutional Amendment, (Edward Elgar Research Handbook on Law & Religion (Rex Ahdar, editor, 2018 Forthcoming)).
• Gautam Bhatia, Equality of Opportunity, Group Subordination, and the Directive Principles: State of Kerala vs N.M. Thomas, (November 15, 2017).
• Andrew Koppelman, Entertaining Satan: Why We Tolerate Terrorist Incitement, (Fordham Law Review, Vol. 86, No. 2, 2017).
• Timothy Zick, Restroom Use, Civil Rights, and Free Speech ‘Opportunism’, (Ohio State Law Journal, Forthcoming).
• Mohammad Fadel, Fiduciary Principles in Classical Islamic Law Systems, (Oxford Handbook of Fiduciary Law, edited by Robert Sitkoff et. al. (Forthcoming)).
• Asmat Ali Khan, Marrying Without the Consent of the Wali (a Case Study of Pakistan) Compatibility of Pakistani Family Laws with UDHR, (November 8, 2017).

From SmartCILP:

• David B. Rosengard, "Three Hots and a Cot and a Lot of Talk": Discussing Federal Rights-Based Avenues for Prisoner Access to Vegan Meals, 23 Animal Law Review 355-403 (2017).
• John Weber, Protecting Against Discrimination or Violating the Freedom of Religion? Balancing One of Americans' Most Important Liberties, [Abstract],46 Journal of Law & Education 415-424 (2017).

Trump Adds 5 Names To List of Potential Supreme Court Nominees

On Friday, just before White House Counsel Donald F. McGahn delivered the Barbara K. Olson Memorial Lecture at the Federalist Society National Lawyers Convention, the White House issued a release announcing the addition of five names to the President's list of potential Supreme Court nominees. Among the five is Amy Coney Barrett who on Oct. 31 was confirmed for a position on the 7th Circuit after controversy over her views on reproductive rights, abortion, LGBTQ rights, as well as controversy over 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.) Other new names on the President's list are: Britt C. Grant (Georgia Supreme Court Justice); Brett M. Kavanaugh (Judge on the D.C. Circuit);  Kevin C. Newsom (11th Circuit Judge); and Patrick Wyrick (Oklahoma Supreme Court Justice).  The Hill reports on these developments.

Recent Prisoner Free Exercise Cases

In Grief v. Quay,  (2d Cir., Nov. 13, 2017), the 2nd Circuit concluded that a district court should not have dismissed as conclusively non-religious an inmate's claim that stuffed animals are necessary for his religious practice.

In Holt v. Givens, 2017 U.S. Dist. LEXIS 186752 (ND AL, Nov. Nov. 13, 2017),  an Alabama federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 187165, Oct. 17, 2017) and dismissed an inmate's complaint that his prayer oil was seized as contraband.

In Moon v. Jordan, 2017 U.S. Dist. LEXIS 187012 (ED MO, Nov. 13, 2017), a Missouri federal district court dismissed a Muslim inmate's complaint that he was not provided an Arabic language Qur'an, a clock for prayer time, a prayer rug, a bottle for cleaning himself after using the restroom, televised Jumu'ah services, or an Imam, and was not permitted to wear a Kufi.

In Bynum v. Poole, 2017 U.S. Dist. LEXIS 187453 (MD NC, No. 13, 2017), a North Carolina federal magistrate judge recommended dismissing a Muslim inmate's complaint that Jumu'ah services were cancelled on one Friday.

In Hewitt v. Johnson, 2017 U.S. Dist. LEXIS 187649 (D SC, Nov. 14, 2017), a South Carolina federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 187901, Oct. 26, 2017) and dismissed on qualified immunity grounds denial of an inmate's request for a kosher diet because authorities found his professed belief insincere.

In Muslim v. Carmichael, 2017 U.S. Dist. LEXIS 188522 (WD NC, Nov. 14, 2017), a North Carolina federal district court allowed a Muslim inmate to move ahead wit his damage claim for denial of a Kosher diet and failure to provide an Imam to lead prayer services.

In Johnson v. Fields, 2017 U.S. Dist. LEXIS 189448 (WD NC, Nov. 16, 2017), a North Carolina federal district court upheld disciplinary sanctions that deprived an inmate of his Bible for 24 days.

In Meza v. California Department of Corrections and Rehabilitation, 2017 U.S. Dist. LEXIS 189996 (ED CA, Nov. 15, 2017), a California federal magistrate judge recommended dismissing a Catholic inmate's complaint that because of his alleged gang affiliation he was not allowed to attend his brother's funeral off prison grounds.

In Shabazz v. Secretary Department of Corrections, 2017 U.S. Dist. LEXIS 190725 (MD FL, Nov. 17, 2017), a Florida federal district court issued a temporary restraining order preventing prison authorities from requiring an inmate to shave his beard that he wears for religious reasons.

Sacristan's Suit Dismissed On Ministerial Exception Grounds

In Vosney v. Archdiocese of Hartford, 2017 Conn. Super. LEXIS 4633 (CT Super., Oct. 13, 2017), a Connecticut trial court dismissed on "ministerial exception" grounds a suit by a former administrative assistant and sacristan of a Catholic Church in Connecticut. Plaintiff had claimed that his hours of employment were severely reduced as retaliation for his opposing discriminatory employment practices.

Head of DHS Faith Based Office Resigns Over Anti-Muslim, Anti-Black Statements

CNN reports that Rev. Jamie Johnson resigned yesterday as head of the Department of Homeland Security's Center for Faith-Based & Neighborhood Partnerships.  His resignation stems from inflammatory statements about Blacks and Muslims which Johnson made in radio appearances in years prior to his appointment to his position at DHS.  For example, in one appearance he said in part:

I agree with Dinesh D'Souza, your friend and mine, who says really all that Islam has ever given us is oil and dead bodies over the last millennia and a half.

Court Upholds Large Penalty Against Jehovah's Witnesses For Failure To Produce Documents

In Padron v. Watchtower Bible and Tract Society of New York, Inc., (CA App., Nov. 9, 2017), a California appellate court upheld a $4000 per day penalty against a Jehovah's Witness parent body for its refusal  to comply with a litigation discovery request.  At issue is a litigant's attempt to obtain copies of responses to a letter sent to elders around the country seeking names of congregation leaders who are known to have been guilty of child molestation in the past.  The total amount now due is some $2 million.  Reveal reports on the decision.

Elaborate Museum of The Bible Opens In D.C. Today

Washington Post reports that the new $500 million privately-funded Museum of the Bible opens in Washington, D.C. today.  The museum has been created by the Green family, owners of the Hobby Lobby retail chain.  Located on a site near the Mall in southwest Washington, the Museum focuses the importance of the Bible, Biblical history and the place of the Bible in U.S. history.  The Post says that the Museum "will set a new standard" for fusion of entertainment and education. It summarizes:

The Bible Museum has come to town, in all its technical splendor, bearing with it something that most historians and museum professionals may have thought was long discredited: the "master narrative" idea of history, that there is one sweeping human story that needs to be told, a story that is still unfolding and carrying us along with it. It tells this seductive story well, in many places with factual accuracy, and always with an eye to clarity and entertainment. It is an exciting idea, and an enormously powerful tool for making sense of the world.

Unless, of course, you don’t believe it.

Former Church Members Question Settlement of Suit Against Child Protection Officials

Former members of the North Carolina-based World of Faith Fellowship (WOFF) will ask the North Carolina attorney general to seek review a settlement agreement reached 12 years ago in a suit against the Rutherford County Department of Social Services by 12 members of WOFF. The plaintiffs claimed they were being targeted by Social Services because of their religion. AP now reports:

An ongoing Associated Press investigation has exposed years of abuse in the evangelical sect, with dozens of former members saying congregants are regularly beaten, punched and choked in an effort to "purify" sinners.

... [T]he state had opposed the agreement between Word of Faith and the county social services agency because it contains stipulations that limit such investigative tactics as what can trigger an abuse inquiry and how social workers can question minors....

Several former members have told the AP that [child protection director] Carroll’s department has either cited the settlement in refusing to act on child abuse allegations or given Word of Faith members advance notice of investigations.

Suit Challenges Tennessee's Therapist Bill

A suit was filed last week in a Tennessee federal district court challenging the constitutionality of  Tennessee's "Therapist Bill" (TN Code 63-22-302) that provides:

No counselor or therapist providing counseling or therapy services shall be required to counsel or serve a client as to goals, outcomes, or behaviors that conflict with the sincerely held principles of the counselor or therapist; provided, that the counselor or therapist coordinates a referral of the client to another counselor or therapist who will provide the counseling or therapy.

The complaint (full text) in Copas v. Haslam, (MD TN, filed 11/13/2017) contends that, despite the broad wording of the section:

The Tennessee Legislature intended for the Bill solely to allow religious counselors to discriminate against the LGBT community.

It asserts that the law violates the Equal Protection Clause and the Establishment Clause.  JURIST reports on the lawsuit.

OSCE Holds Hearings On Religious Freedom Violations

The U.S. Helsinki Commission (the Organization for Security and Cooperation in Europe) yesterday held a briefing at the Russell Senate Office Building on Religious Freedom Violations in the OSCE.  A video of the full briefing is available on the Commission's website.

USCIRF Says State Department Is Late In Designating "Countries of Particular Concern"

The U.S. Commission on International Religious Freedom issued a press release on Tuesday criticizing the State Department for failing to meet the statutory deadline for designating "countries of particular concern".  The International Religious Freedom Act (22 USC 6442 as amended in 2016) requires the President to designate countries of particular concern-- those that are the most egregious violators of religious freedom-- within 90 days of the issuance of the State Department's Annual Report on International Religious Freedom.  The State Department issued this year's Annual Report on Aug. 15. (See prior posting.)

Australian Government Survey By Mail Favors Same-Sex Marriage

The Australian Bureau of Statistics yesterday released the results of its national postal survey on whether the law should be changed to allow same-sex marriage.  (Press release; full survey results).  61.6% of respondents voted "yes"; 38.4% voted "no".  The press release expanded on the data:

All states and territories recorded a majority Yes response. Of the 150 Federal Electoral Divisions, 133 recorded a majority Yes response, and 17 Federal Electoral Divisions recorded a majority No response.

12,727,920 million people participated in the voluntary survey – representing 79.5 per cent of the more than 16 million eligible Australians.

CNN reports that celebrations broke out across Australia after the results were announced.  (See prior related posting.)

Bible In Schools Case Dismissed On Standing and Ripeness Grounds

In Freedom From Religion Foundation v. Mercer County board of Education, (SD WV, Nov. 14, 2017), a West Virginia federal district court dismissed on standing and ripeness grounds a lawsuit challenging a Bible in Schools class offered for over 70 years in Mercer County elementary and middle schools.  Shortly after the lawsuit challenging the program was filed, the county Board of Education voted to suspend teaching of the course for a least a year in order to undertake a review and modification of the curriculum.  While one plaintiff who transferred to another school was found to lack standing, other plaintiffs had standing.  The court nevertheless dismissed because:

the Bible in the Schools program of which plaintiffs’ complain is not currently offered nor will it be offered in the future. Furthermore, should a Bible in the Schools curriculum reemerge, the court has no information before it to determine the content of such a class.... Therefore, until the Bible in the Schools curriculum that Jamie Doe will actually encounter "is presented in clean-cut and concrete form,"... this action is not ripe for judicial review.

FFRF issued a press release announcing the decision. First Liberty also issued a press release on the decision.

Ontario Court Holds Mahr Is Part of Family Property In Divorce

In Bakhshi v. Hosseinzadeh,(Ont. Ct. App., Nov. 2, 2017), the Ontario Court of appeal held that the Mahr in an Islamic marriage contract is to be counted as part of net family property.  The Family Law Act in the Canadian province of Ontario calls for equal division of family-owned property in a divorce.  Here the marriage contract called for the husband to pay the wife 230 gold coins (found by the court to be worth $79,580).  The Court of Appeals held that the wife is entitled to receive the Mahr payment from her husband, but that (absent a provision to the contrary in the marriage contract) this amount is then to be included as family-owned property in the equalization calculation. Law Times reports on the decision.

New Suit Challenges Latest Limits on Refugees From 11 Countries

A lawsuit was filed yesterday in a Washington federal district court challenging the Oct. 24 Executive Order that resumes the admission of refugees to the United States, but with increased vetting of those from 11 countries. (See prior posting.)  The 44-page complaint (full text) in Jewish family Services of Seattle v. Trump, (WD WA, filed 11/13/2017) contends:

Refugee Ban 3.0 implements defendant Donald Trump’s and his Administration’s often repeated goal of banning Muslim refugees from the country. Of all Muslim refugees resettled in the United States in the last two fiscal years, 80% were from the nine Muslim majority countries whose nationals are subject to this most recent suspension.

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

Injunction Against Trump's 3rd Travel Ban Is Lifted In Part

In State of Hawaii v. Trump, (9th Cir., Nov. 13, 2017), the U.S. 9th Circuit Court of Appeals stayed in part the preliminary injunction issued by a Hawaii federal district court against enforcement of President Trump's third travel ban. (See prior posting.)  The 9th Circuit held:

The preliminary injunction is stayed except as to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States....

The injunction remains in force as to foreign nationals who have a “close familial relationship” with a person in the United States.... Such persons include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins.... “As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [Proclamation 9645].”

Reuters reports on the decision.

FBI Releases 2016 Hate Crime Data

Yesterday, the FBI released its Hate Crime Statistics 2016.  During the year, 6,121 hate crime incidents (including 6,063 single-bias incidents) were reported to law enforcement authorities.  This compares to 5,850 total incidents in 2015 (see prior posting). The 2016 data shows that 21% of the single-bias incidents (1,273 incidents) were motivated by religious bias. 684 of those incidents were anti-Jewish (up from 664 in 2015).  307 incidents were anti-Muslim (up from 257 in 2015). 62 were anti-Catholic (same as 2015).  ADL has created an interactive map illustrating the data.

Supreme Court Grants Review In Pregnancy Center Required Disclosure Case

The U.S. Supreme Court today granted certiorari in National Institute of Family and Life Advocates v. Becerra, (Docket No. 16-1140, cert granted 11/13/2017) (Order List).  In the case, the U.S. 9th Circuit Court of Appeals upheld  California's FACT Act which requires licensed pregnancy counseling clinics to disseminate a notice on the existence of publicly-funded family planning services, including contraception and abortion.  Unlicensed clinics must disseminate a notice that they and their personnel are unlicensed. (See prior posting.) The Supreme Court limited its grant of review to the Free Speech issues, excluding review of Free Exercise challenges.  SCOTUSblog's case page has links to the cert. petition and amicus briefs filed in the case.  The 9th Circuit in the case held that the required disclosures are regulation of "professional speech" subject only to intermediate scrutiny.  Washington Post reports on the Court's grant of review.

Cert. Filed In Challenge To Abortion Clinic Anti-Noise Law

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in March v. Mills, (cert. filed 11/6/2017).  In the case, the U.S. 1st Circuit Court of Appeals upheld a provision of the Maine Civil Rights Act that prohibits a person making noise that can be heard within a health care facility where the intent is to jeopardize health or interfere with the delivery of health services.  In March v. Mills, (1st Cir., Aug. 8, 2017), the appeals court rejected a constitutional challenge brought by an abortion protester who is the pastor and co-founder of a church whose mission was described as including "plead[ing] for the lives of the unborn at the doorsteps of abortion facilities." The 1st Circuit held that the Noise Provision is a content-neutral time, place and manner restriction. Thomas More Law Center issued a press release announcing the filing of the petition for review.

Recent Articles and Books of Interest

From SSRN:

• Catherine E. Smith, et. al., Brief of Amici Curiae Scholars of The Constitutional Rights and Interests Of Children in Support of Respondents in Masterpiece Cakeshop LTD, et al v. Colorado Civil Rights Commission, (U Denver Legal Studies Research Paper, Working Paper No. 17-39 (Nov. 2017)).
• Ian S. Speir, 'A Beacon on Our Coast': Religious Freedom as the First Freedom at Home and Abroad, (Providence, Forthcoming).
• Sahar F. Aziz, A Muslim Registry: The Precursor to Internment?, (Brigham Young University Law Review, Forthcoming).
• Antony Barone Kolenc, Putting Faith in Europe: Should the U.S. Supreme Court Learn from the European Court of Human Rights?, (Georgia Journal of International and Comparative Law, Vol. 45, No. 1, 2016).
• Luke W. Goodrich & Rachel N. Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, (Seton Hall Law Review, Forthcoming).
• Holning Lau & Hillary Li, American Equal Protection and Global Convergence, (Fordham Law Review, Vol. 86, 2017).

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

• Rung-Guang Lin, Towards Religious Institutionalism? The Future of the Regulation of Religious Institutions in Taiwan, (November 5, 2017).
• Masua Sagiv, The State and New Religious Movements, (Contemporary Alternative Spiritualities in Israel 115 (Shai Feraro and James R. Lewis eds., 2017)).
• Margaret D. Hagan, Human Rights Melodrama: A Literary Analysis of Reports of Police Violence Against Hungarian Roms, (Journal of Human Rights, Taylor and Francis, Pages 401-415 (2016).
• Ido Katri, The Banishment of Isaac: Racial Signifiers of Gender Performance, (University of Toronto Law Journal 68:1(2017)).

From SmartCILP and elsewhere:

• Mark Strasser, Neutrality, Accommodation, and Conscience Clause Legislation, 8 Alabama Civil Rights & Civil Liberties Law Review 197-238 (2017).
• Emma Green, The Quiet Religious-Freedom Fight That Is Remaking America, The Atlantic (Nov. 5, 2017).

Recent & Forthcoming Books:

• S.I. Strong, Transforming Religious Liberties: A New Theory of Religious Rights for National and International Legal Systems, (Cambridge Univ. Press, Oct. 2017).
• Michel Rosenfeld & Susanna Mancini, The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality, (Cambridge Univ. Press, March 2018).

Recent Prisoner Free Exercise Cases

In Garner v. Muenchow, (7th Cir., Nov. 8, 2017), the 7th Circuit reversed a Wisconsin federal district court grant of summary judgment for defendants in a suit in which a Muslim inmate alleged free exercise and equal protection violations growing out of efforts to prevent him from obtaining a copy of the Qur'an while in segregation.

In Cavin v. Heyns, 2017 U.S. App. LEXIS 22582 (6th Cir., Sept. 12, 2017), the 6th Circuit affirmed a finding of qualified immunity in a suit by an inmate challenging a blanket ban on attendance at religious services for prisoners on toplock status.

In Broyles v. Presley, 2017 U.S. Dist. LEXIS 182968 (D KA, Nov. 3, 2017), a Kansas federal district court held that plaintiff had stated a free exercise claim regarding his inability to receive a kosher diet.  The court ordered relevant jail officials to investigate the facts, determine what action should be taken and file this as a report along with defendants' answer.

In Sears v. Thomas, 2017 U.S. Dist. LEXIS 186498 (SD FL, Nov. 8, 2017), a Florida federal district court rejected part of a magistrate's recommendation (2017 U.S. Dist. LEXIS 137998, Aug. 25, 2017) and held that an inmate can proceed with his claim for nominal damages against a correctional officer who insisted that a chain and crucifix discovered in plaintiff's cell must be returned to the vendor who sent it.

Challenge To FEMA Policy On Disaster Aid To Churches Moves Ahead

In Harvest Family Church v. Federal Emergency Management Agency, (SD TX, Nov. 9, 2017), a Texas federal district court refused to grant FEMA a 30-day stay in a suit by three churches challenging FEMA's policy denying disaster aid to houses of worship.  FEMA, which refused defend the merits of its policy before the court, sought the stay because it is reconsidering the policy.  The court said it will delay a ruling on plaintiffs' request for a temporary injunction until December 1.  It added:

The Court has received instructive briefing from amici in support of Plaintiffs’ Motion, for which it expresses gratitude. Nevertheless ... “Without opponents, the adversary system cannot function.”... The Court would therefore welcome amici with differing views.

If, by December 1, FEMA’s position remains unchanged, the Court will assume that FEMA concedes, at the very least, Plaintiffs’ likelihood of success on the merits of this case and that the injury being suffered by Plaintiffs is irreparable. The Court will then issue its ruling on Plaintiffs’ request for preliminary relief.

Senate Republicans' Version of Tax Bill Retains Johnson Amendment Restrictions

As previously reported, the tax cut legislation introduced by Republicans in the House of Representatives eliminates some of the restrictions on political speech by non-profits currently imposed by the Johnson Amendment.  Senate Republicans have drafted their own version of a tax bill.  As reported by The Hill, Republicans on Thursday released a 253- page description of the bill (full text), though not the full legislative language.  It does not appear that the Senate is proposing any change to the Johnson Amendment's current restrictions on political intervention by non-profits. The Senate bill is scheduled for markup by the Finance Committee on Nov. 13.

NY Voters Approve Kiryas Joel Becoming Separate Town

JTA reports on Tuesday's election results in the town of Monroe, New York where voters by over an 80% majority approved a proposal that will allow the Village of Kiryas Joel to secede and become its own separate Yiddish speaking town. The vote resolves tensions growing out of Kiryas Joel's annexation of land from Monroe. (See prior posting.)  Kiryas Joel was founded by Satmar Rebbe Joel Teitelbaum. The new town will be named Town of Palm Tree, an English translation of "Teitelbaum".  It will be New York's first new town in 35 years.

Judge Says Suit Charging Campus Anti-Semitism Should be Refiled With Focus On Current Situation

Jewish News of Northern California reports that after a 57-minute pretrial hearing in Mandel v. Board of Trustees of the California State University, federal district court Judge William Orrick said he would dismiss the case with leave to amend. The suit alleges that  "a consistent pattern of anti-Jewish animus has emerged" at San Francisco State University since 1968. (See prior posting.)  The judge instructed that an amended complaint should focus on the current situation at SFSU, not on a 50-year history of anti-Semitism there.

9th Circuit Hears Oral Arguments In School Board Invocation Case

Yesterday the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full oral arguments) in Freedom From Religion foundation v. Chino Unified School District. In the case, a California federal district court held that invocations at school board meetings are governed by case law relating to school prayer, not by the line of cases on legislative prayer.  Courthouse News Service reports on the oral arguments.

Missouri Offers State Employees Health Policies That Exclude Abortion, Contraception, Sterilization

As previously reported, last year a Missouri federal district court in Wieland v. HHS enjoined the federal government from enforcing the Affordable Care Act against a state legislator who, on religious grounds, objected to participating in a healthcare plan for himself, his wife and his daughters that provides coverage for contraceptives.  Now according to a press release from the Thomas More Society, the state of Missouri has begun to offer all state employees the option of selecting a health insurance plan that excludes coverage for abortion, contraceptives or sterilization.

Marked-Up House Version of Tax Bill Includes Expanded, But Time-Limited, Partial Repeal of Johnson Amendment

The House Ways and Means Committee today during its markup of HR 1, the Tax Cuts and Jobs Act, approved an amendment (full text) that, if finally adopted, will expand the partial repeal of the Johnson Amendment that was in the original version, but will revert to the current Johnson Amendment after 5 years. (See prior posting.)  The original version would have permitted houses of worship to include political endorsement in sermons by clergy.  The amended version that now goes to the full House expands that to allow political endorsements in statements by any Section 501(c)(3) organization when the statement is made in the ordinary course of its exempt activities without incurring additional expense.  Here is the amended text of the section, marked up by me to show additions and deletions from the original HR 1:

SEC. 5201. CHURCHES 501 (c)(3) ORGANIZATIONS PERMITTED TO MAKE STATEMENTS RELATING TO POLITICAL CAMPAIGN IN ORDINARY COURSE OF RELIGIOUS SERVICES AND ACTIVITIES.

(a) IN GENERAL.—Section 501 is amended by adding at the end the following new subsection:

"(s) SPECIAL RULE RELATING TO POLITICAL CAMPAIGN STATEMENTS OF CHURCHES, INTEGRATED AUXILIARIES, ETC. ORGANIZATIONS DESCRIBED IN SUBSECTION (c)(3) —

(1) IN GENERAL.—For purposes of subsection (c)(3) and sections 170(c)(2), 2055, 2106, 2522, and 4955, an organization described in section 508(c)(1)(A) shall not fail to be treated as organized and operated exclusively for a religious purpose purpose described in subsection (c)(3), 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 content of any statement which—

(A) is in is made 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.

 (2) TERMINATION.—Paragraph (1) shall not apply to taxable years beginning after December 31, 2023. 

(b) EFFECTIVE DATE.—The amendments made by this section shall apply to taxable years ending after the date of the enactment of this Act beginning after December 31, 2018."

[Thanks to Samuel Brunson via Religionlaw for the lead.] 

Republican Senators Call For Roy Moore To Withdraw From Senate Race After Sex Charges

According to the Washington Post, a number of Republican senators are calling for Roy Moore, Alabama candidate for the U.S. Senate, to withdraw if charges in an earlier Washington Post article today are true.  The article, based on detailed interviews with named accusers, says that Moore engaged in improper sexual contact with a 14-year old girl nearly 40 years ago when Moore was a 32 year-old assistant district attorney.  Three other women say Moore tried to date them when they were between 16 and 18 years old.  Moore, well known for his battles defending a Ten Commandments monument and opposing same-sex marriage, says that the charges "are completely false and are a desperate political attack by the National Democrat Party and the Washington Post."  The special election in Alabama in which Moore faces Democratic nominee Doug Jones is scheduled for Dec. 12.

UPDATE: Defending Moore, Alabama State Auditor Jim Zeigler told the Washington Examiner:  "[T]ake Joseph and Mary. Mary was a teenager and Joseph was an adult carpenter. They became parents of Jesus. There’s just nothing immoral or illegal here. Maybe just a little bit unusual."

Italian Artist Charged With Criminal Blasphemy

The art blog Hyperallergic this week reports that in Italy, the anonymous artist known as Hogre was arrested and charged with publicly insulting religion in violation of Sec. 403 (Criminal Blasphemy) of Italy's Criminal Code.  According to the blog's report:

Hogre was one of two artists who, on June 1 of this year, placed satirical posters in bus stop advertising spaces in the Italian capital. Hogre’s poster “Ecce homo erectus” depicts Jesus with a conspicuous erection, resting one hand on the head of a praying, kneeling child. This was a response to sexual abuse charges against Cardinal Pell, the third highest-ranking Vatican official.

If convicted, the artist could face a fine of €1000 to €5000.  Hyperallergic's blog post includes a photo of the offending poster.

House Holds Hearing On Campus Anti-Semitism

On Nov. 7, the House Judiciary Committee held a hearing titled Examining Anti-Semitism on College Campuses.  A video of the full hearing and written transcripts of the prepared testimony of nine witnesses are available on the committee's website.  As reported by AP, following the hearing Rep. Jamie Raskin (D-MD) proposed legislation to expand Title VI of the 1964 Civil Rights Act to bar discrimination on the basis of religion by programs receiving federal financial assistance.  Currently Title VI only bars discrimination on the basis of race, color or national origin.

Organization Launches Annual "Friend or Foe Christmas" Campaign

The advocacy organization Liberty Counsel announced yesterday that it is launching its 15th annual "Friend or Foe Christmas Campaign."  Its campaign attempts to counter removal of the celebration of Christmas in schools, on public property and by retailers.  It has made available a Legal Memorandum on Public Celebration of Religious Holidays.

Indonesian Constitutional Court Requires Recognition of Indigenous Religions

According to an AP report, yesterday Indonesia's Constitutional Court handed down a ruling that will require recognition of adherents of the country's indigenous religions.  In the past, Indonesian law has required citizens in obtaining an identity card to select one of six religions-- Islam, Protestantism, Catholicism, Buddhism, Hinduism or Confucianism.  If they selected none of these, they risked prosecution under Indonesia's blasphemy law for being an atheist. Yesterday's ruling concluded that this arrangement is discriminatory.  According to the Jakarta Globe: "The Court recommended the creation of a seventh category – 'believers of the faith,' or penghayat kepercayaan.a'"

Suit Challenges Quebec's New Anti-Niqab Law

As announced by the Canadian Civil Liberties Association, a suit was filed in a Quebec Superior Court yesterday challenging the constitutionality of Sec. 10 of Quebec's recently enacted Religious Neutrality Law (see prior posting).  The law provides that public sector employees in carrying out their functions may not cover their faces, and that private citizens must have their faces uncovered when receiving public services.  The complaint (full text) in National Council of Canadian Muslims v. Attorney General of Quebec, (Que. Super., filed 11/7/2017) contends that Sec. 10 of the violates freedom of religion and equality protections of the Quebec and Canadian Charters of Rights and Freedoms.  It asserts that the Act's requirement particularly impacts Muslim women.

Notre Dame, In About Face, Will Continue Contraceptive Coverage Under Accommodation Rules

Reversing an announcement made last month (see prior posting), Notre Dame University yesterday told employees that they will continue to receive health insurance contraceptive coverage.  Under accommodation rules developed by the Obama Administration, the coverage is provided without cost by the insurance company directly to employees, without Notre Dame paying for it.  As reported by AP, the university thought that its insurer would end the no-cost coverage now that changes in Affordable Care Act rules allow religious non-profits to opt out of objectionable coverage. However the insurer has indicated that it will continue to provide the coverage.  A Notre Dame spokesman said:

Recognizing ... the plurality of religious and other convictions among its employees, [the University] will not interfere with the provision of contraceptives that will be administered and funded independently of the University.

In a similar reversal, Notre Dame also told students yesterday that after August they will still be able to obtain contraceptive coverage by electing it separately through their student health plan.

UPDATE: Since Notre Dame has a self-insured plan, references to "insurer" should be read as a reference to the third party administrator and benefits manager.  Sycamore Trust, an alumni group dedicated to preserving Notre Dame's Catholic identity strongly criticized the university's action.