Religion Clause

Thursday, December 07, 2017

European Court: Muslim Witness Should Be Allowed To Wear Skullcap While Testifying

In Hamidović v. Bosnia and Herzegovina, (ECHR, Dec. 5, 2017), the European Court of Human Rights held that the courts of Bosnia and Herzegovina infringed the religious freedom rights protected by Art. 9 of the European Convention on Human Rights when it held a Muslim man in contempt for refusing on religious grounds to remove a head covering while testifying in a criminal trial. As summarized in the Court's press release on the case:

In 2012 Mr Hamidović, a witness in a criminal trial, was expelled from the courtroom, convicted of contempt of court and fined for refusing to remove his skullcap.

The Court found that there had been nothing to indicate that Mr Hamidović had been disrespectful during the trial. Punishing him with contempt of court on the sole ground that he had refused to remove his skullcap, a religious symbol, had not therefore been necessary in a democratic society and had breached his fundamental right to manifest his religion.

The Court pointed out in particular that Mr Hamidović’s case had to be distinguished from cases concerning the wearing of religious symbols and clothing at the workplace, notably by public officials. Public officials, unlike private citizens such as Mr Hamidović, could be put under a duty of discretion, neutrality and impartiality, including a duty not to wear religious symbols and clothing while exercising official authority.

Two judges filed concurring opinions and one judge dissented.

Wednesday, December 06, 2017

Court Says Humanism Is Not A Religion

In Espinosa v. Stogner, (D NV, Dec. 4, 2017), a Nevada federal district court-- in a suit brought by a prisoner-- held that Humanism does not qualify as a "religion" for purposes of the Free Exercise or Establishment Clause. The court reasoned in part:

The Court has no basis to doubt Plaintiff’s sincerity as to his professed beliefs and of course has no opinion as to the value of those beliefs, but the allegations in the FAC confirm that despite the title Plaintiff gives his belief system (“Religious Humanism”), it is not a religion for the purposes of the religion clauses. See Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994) ... (“[R]eligion is the ‘belief in and reverence for a supernatural power accepted as the creator and governor of the universe.’”).... Alvarado v. City of San Jose, 94 F.3d 1223, 1229 (9th Cir. 1996) ... (“We are hard put to imagine a more unworkable definition of religion ... for purposes of the Establishment Clause or Free Exercise than that which is offered here. Few governmental activities could escape censure under a constitutional definition of ‘religion’ which includes any symbol or belief to which an individual ascribes ‘serious or almost serious’ spiritual significance. ‘If anything can be religion, then anything the government does can be construed as favoring one religion over another, and . . . the government is paralyzed. . . .’ While the First Amendment must be held to protect unfamiliar and idiosyncratic as well as commonly recognized religions, it loses its sense and thus its ability to protect when carried to the extreme proposed by the plaintiffs.”).

Colorado School Board Ends Voucher Program As 6 Years of Litigation Threatened To Drag On

Yesterday the Douglas County, Colorado Board of Education voted 6-0 (with one abstention) to end its controversial school choice grant program which has been the subject of litigation for over six years. The district has spent $1.77 million litigating the case. Most recently the cases challenging the program were remanded by the U.S. Supreme Court to the Colorado Supreme Court for reconsideration. (See prior posting.) As reported by the Highlands Ranch Herald, the vote to end the school choice program came after four anti-voucher candidates were elected to the school board in last November's election.

Tuesday, December 05, 2017

Transcript of Oral Arguments In Masterpiece Cakeshop Is Now Available

The transcript (full text) of today's oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is now available. Amy Howe at SCOTUSblog has posted an analysis of the argument. She speculates that Justice Kennedy holds the key vote. She also observes:

[M]any of the more liberal justices’ questions seemed to focus on trying to convince their more conservative colleagues that, even if they might be inclined to vote for Masterpiece, it would be next to impossible to write a ruling for the baker that did not, as Justice Stephen Breyer put it, “undermine every civil rights law since year 2.”

SCOTUS Will Hear Arguments In Masterpiece Cakeshop Case Today

The U.S. Supreme Court this morning will hear oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the widely followed case that pits the religious and free speech rights of a Christian bakery owner against the rights of a same-sex couple under Colorado's public accommodation law. SCOTUSblog has a preview of the arguments, as well as a case page with links to the many briefs filed in the case, to the opinion below and to extensive commentary. The high profile which the case has assumed is encapsulated in this deck headline from the Christian Science Monitor:

As evidenced by the people who began camping outside the high court for a seat at Tuesday’s oral arguments, the Masterpiece Cakeshop case seems destined to be a historic ruling – with both sides warning that defeat could bring potentially seismic consequences.

Daily Signal has a profile of one of the lawyers who will be arguing before the court today. The transcript of the oral arguments should become available later today. I will post a link to it at that time.

Settlement Reached In Correctional Employee's Suit Over Religious Curriculum for Inmates

The state of Tennessee last month agreed to a settlement of $45,948, plus up to $35,000 in attorneys' fees, in a suit that was brought by an employee of a state corrections agency who complained that the program he was required to teach to inmates was heavily religious. The program was based on the book This Ain’t No Practice Life by Michael Burt Also under the agreement, the employee will leave the agency next June. (Full text of settlement agreement). The agreement followed a federal district court's entering of a preliminary injunction in favor of the employee last February. In Baker v. State of Tennessee, (MD TN, Feb. 17, 2017), the court, finding a strong likelihood of an Establishment Clause violation, said:

The fact that the Coaching Program as a whole may have a secular purpose of rehabilitating TDOC inmates and preparing them for release and reentry does not mitigate the fact that there is likely no secular purpose to the inclusion of religious-based content in the Coaching Program’s materials.

Reporting on the settlement, WSMV News adds that the challenged program, which has now been canceled, cost the state $300,000 to implement.

Suit Challenges City's Reparative Therapy Ban

A suit was filed yesterday in Florida federal district court challenging the constitutionality of a Tampa ordinance that prohibits licensed counselors from practicing conversion therapy efforts on minors. Conversion therapy is defined in the ordinance as "efforts to change behaviors. gender identity, or gender expression, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex." The complaint (full text) in Vazzo v. City of Tampa, Florida, (MD FL, filed 12/4/2017), contends that the ordinance violates plaintiffs' free speech and free exercise rights as well as rights under various Florida statutes. Among other things, it argues that the law violates the First Amendment rights of plaintiffs' clients to receive information. Liberty Counsel issued a press release announcing the filing of the lawsuit.

Monument Challenges Dismissed For Lack of Standing

In American Atheists, Inc. v. Levy County, (ND FL, Dec. 3, 2017), a Florida federal district court dismissed on standing grounds a challenge to a Ten Commandments monument in a courtyard outside county government buildings, as well as a challenge to the county's refusal to allow placement in the same area of a granite bench dedicated to non-believers. Dismissing plaintiffs' Establishment Clause challenge to the Ten Commandments, the court said in part:

Plaintiffs have failed to meet the injury-in-fact requirement because [plaintiff] Mr. Sparrow is unlikely to encounter the Monument in the future and because his only encounter with the Monument in the past was during a purposeful visit.

Dismissing an equal protection challenge to the refusal of a permit for the monument to atheists, the court held that "Plaintiffs lack standing because they have failed to show redressability." Their proposal did not comply with guidelines for permissible monuments. The court concluded:

Had counsel for Plaintiffs devoted more thought to these [standing] issues, then perhaps this Court could have addressed the merits of this dispute. But counsel didn’t, so this case must be dismissed for lack of standing.

Liberty Counsel issued a press release announcing the decision.

Monday, December 04, 2017

Supreme Court Denies Review In Houston Spousal Benefits Case

The U.S. Supreme Court today denied certiorari in Turner v. Pidgeon (Docket No. 17-424, cert. denied 12/4/2017) (Order List). In the case, the Texas Supreme court gave two Houston taxpayer-voters another chance to challenge the legality of the city's extending spousal benefits to same-sex married couples. (See prior posting.) AP reports on the Court's denial of review.

Supreme Court Stays Preliminary Injunction Against Trump's 3rd Travel Ban

The U.S. Supreme Court today granted a complete stay of the preliminary injunction that a Hawaii federal district court had issued against President Trump's third travel ban. The 9th Circuit had lifted the ban in part. (See prior posting.) But today's order (full text) in Trump v. Hawaii (Sup. Ct., Dec. 4, 2017) stays the injunction completely while the case is being appealed to the 9th Circuit and then to the Supreme Court. The Supreme Court noted that the 9th Circuit is handling the appeal on an expedited basis. Justices Ginsburg and Sotomayor indicated that they would have denied the stay application. Washington Post reports on today's ruling by the Supreme Court. [corrected]

UPDATE: Later today the U.S. Supreme Court issued a similar stay while appeals are pending of a preliminary injunction against the third travel ban that has been issued by a Maryland federal district court. (See prior posting.) Today's order (full text) comes in Trump v. International Refugee Assistance Project, (Sup. Ct., Dec. 4, 2017). Again Justices Ginsburg and Sotomayor disagreed with the majority.

Suit Over Mosque Settlement Remanded To State Court

Litigation over site plan approval for construction of a mosque in Bernards Township, New Jersey continues. In May, the Township reached settlements with the Islamic Society of Basking Ridge and with the U.S. Justice Department under which the Township will permit the mosque to be built. (See prior posting.) However, township residents continue to challenge the settlement. (See prior related posting.) One of the suits contends that proper notice was not given of the meetings that approved the settlements. That suit was originally filed in state court, but removed to federal court by defendants. Now in Smith v. Township of Bernards, (D NJ, Nov. 29, 2017), the New Jersey federal court to which the case was removed has remanded the case to state court. It found that the suit does not raise any federal law issue, even though one of the settlements was incorporated into a federal court order. Thomas More Law Center issued a press release announcing the court's decision.

Sunday, December 03, 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.

Saturday, December 02, 2017

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).

Friday, December 01, 2017

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.

Thursday, November 30, 2017

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.

Wednesday, November 29, 2017

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.

Tuesday, November 28, 2017

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.

Monday, November 27, 2017

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).

Sunday, November 26, 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.

Saturday, November 25, 2017

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.

Friday, November 24, 2017

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.]

Thursday, November 23, 2017

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.

Wednesday, November 22, 2017

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.)

Tuesday, November 21, 2017

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.

Monday, November 20, 2017

Sunday, November 19, 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.

Saturday, November 18, 2017

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.

Friday, November 17, 2017

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.

Thursday, November 16, 2017

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.)

Wednesday, November 15, 2017

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.

Tuesday, November 14, 2017

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.

Monday, November 13, 2017

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.