Recent Prisoner Free Exercise Cases

In Howard v. Joyce Meyer Ministries, 2017 U.S. Dist. LEXIS 207022 (ED WI, Dec. 18, 2017),  a Wisconsin federal district court dismissed an inmate's complaint that the prison promoted Christianity through a Library drawing, a gift bag give away, and Christian radio programming, as well as his claim that he was not allowed to possess a Buddha emblem necklace.

In Cooper v. Bower, 2017 U.S. Dist. LEXIS 207350 (WD KY, Dec. 15, 2017), a Kentucky federal district court held that correctional officers were entitled to qualified immunity as to their rejection of a Qur'an that had been mailed to plaintiff inmate.

In Spearman v. Williams, 2017 U.S. Dist. LEXIS 208111 (WD MI, Dec. 19, 2017), a Michigan federal district court dismissed on statute of limitations grounds an inmate's claim that his Nuwaubian religious scrolls were lost when he was moved to a different room.

In Sabir v. Williams, 2017 U.S. Dist. LEXIS 208640 (D CT, Dec. 19, 2017), a Connecticut federal district court permitted a Musim inmate to move ahead with his complaint about prison policy that prohibited gropu prayer outside of the chapel.

In Endicott v. Allen, 2017 U.S. Dist. LEXIS 209998 (ED MO, Dec. 21, 2017), a Missouri federal district court allowed a Jewish inmate to move ahead with a number of complaints regarding availability of kosher meals, food items and religious materials. Among his charges he claims that the canteen manipulates the items listed as kosher to catch him buying non-kosher food and obtain his removal from the religious diet list.

In Cochran v. Sherman, 2017 U.S. Dist. LEXIS 210403 (ED CA, Dec. 21, 2017), a California federal magistrate judge recommended allowing an inmate to proceed against certain defendants who denied his religious request for a publicly recorded legal name change to Gabriel Christian Hunter.

In Hearns v. Gonzales, 2017 U.S. Dist. LEXIS 210517 (ED CA, Dec. 21, 2017), a California federal magistrate judge recommended allowing a former inmate to move ahead with his complaint regarding a retaliatory cell search, but dismissed with leave to amend his complaint regarding damage to and confiscation of his prayer rug.

In Davis v. Hamilton County Jail, 2017 U.S. Dist. LEXIS 210697 (ED TN, Dec. 22, 2017),a Tennessee federal district court dismissed an inmate's complaint that verbal harassment interfered with his ability to practice his religion.

In Saif'Ullah v. Albritton, 2017 U.S. Dist. LEXIS 211188 (ND CA, Dec. 21, 2017), a California federal district court dismissed a Muslim inmate's complaint regarding reminders about the ban on large group noon and afternoon congregational prayer during open day room.

Selective Suspension of Refugee Admissions Is Enjoined

In October, President Trump issued an Executive Order resuming the admission of refugees to the United States, but with increased vetting. (See prior posting.)  A follow-up Agency Memorandum (Fact Sheet) implemented the Executive Order by suspending indefinitely entry of most "follow to join" refugees (i.e. relatives of refugees already resettled in the United States), and suspending for at least 90-days entry of refugees from 11 specified countries.  In Doe v. Trump,  (WD WA, Dec. 23, 2017), a Washington federal district court concluded that the federal agencies involved should have engaged in rulemaking procedures under the Administrative Procedure Act before imposing these restrictions. It also concluded that the suspensions violated various provisions of the Immigration and Nationality Act. the court issued a nationwide preliminary injunction barring enforcement of these restrictions as to any refugee with a bona fide relationship to a person or entity within the United States.  All follow-to-join refugees have such a relationship. Politico reports on the decision.

9th Circuit: Trump's 3rd Travel Ban Violates Immigration Act

In State of Hawaii v. Trump, (9th Cir., Dec. 22, 2017), the U.S. 9th Circuit Court of Appeals, agreeing with the district court (see prior posting), concluded that President Trump's third travel ban is inconsistent with the Immigration and Nationality Act, saying in part:

The Proclamation, like its predecessor executive orders, relies on the premise that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., vests the President with broad powers to regulate the entry of aliens. Those powers, however, are not without limit. We conclude that the President’s issuance of the Proclamation once again exceeds the scope of his delegated authority. The Government’s interpretation of 8 U.S.C. § 1182(f) not only upends the carefully crafted immigration scheme Congress has enacted through the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well. Further, the President did not satisfy the critical prerequisite Congress attached to his suspension authority: before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be “detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). The Proclamation once again conflicts with the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas. Lastly, the President is without a separate source of constitutional authority to issue the Proclamation.

The court avoided deciding the question of whether the Proclamation violates the Establishment Clause.  The court also limited the district court's preliminary injunction to foreign nationals who have a bona fide relationship with a person or entity in the United States. Also, as already ordered by the Supreme Court, the 9th Circuit stayed its injunction pending Supreme Court review. Los Angeles Times reports on the decision.

European Court: EU Regulation Does Not Apply to Religious Court Divorces

In Sahyouni v. Mamisch, (CJEU, Dec. 20, 2017), the Court of Justice of the European Union held that EU Council Regulation 1259/2010 implementing enhanced legal cooperation in matters of divorce and legal separation does not apply to a divorce granted by a Muslim religious court.  The European Court said in part:

it is clear from the objectives pursued by Regulation No 1259/2010 that the latter regulation covers solely divorces pronounced either by a national court or by, or under the supervision of, a public authority.

Law & Religion UK blog has more on the decision.

Another Court Enjoins Expanded Exemptions From Contraceptive Coverage Mandate

In State of California v. Health and Human Services, (ND CA, Dec. 21, 2017), a California federal district court issued a nationwide preliminary injunction against enforcement of the Trump Administration's Interim Final Rules issued in October (see prior posting) expanding exemptions from the ACA contraceptive coverage mandate for those with religious or moral objections.  The court ordered the government, pending resolution on the merits, to proceed under the narrower exemption regime that was in effect prior to October.  The court concluded that plaintiffs had shown a likelihood that they will succeed on their claim that the government violated the Administrative Procedure Act by promulgating the Interim Final Rules without advance notice and comment.  Americans United issued a press release announcing the decision.  Last week another federal district court issued a similar preliminary injunction. (See prior posting.)

Trump Commutes Sentence of Sholom Rubashkin

The White House announced yesterday that President Trump has commuted the prison sentence of Sholom Rubashkin, saying that it was "an action encouraged by bipartisan leaders from across the political spectrum, from Nancy Pelosi to Orrin Hatch." According to the White House's announcement:

Mr. Rubashkin is a 57-year-old father of 10 children.  He previously ran the Iowa headquarters of a family business that was the country’s largest kosher meat-processing company.  In 2009, he was convicted of bank fraud and sentenced thereafter to 27 years in prison. Mr. Rubashkin has now served more than 8 years of that sentence, which many have called excessive in light of its disparity with sentences imposed for similar crimes.

This action is not a Presidential pardon.  It does not vacate Mr. Rubashkin’s conviction, and it leaves in place a term of supervised release and a substantial restitution obligation, which were also part of Mr. Rubashkin’s sentence.

In 2011, the 8th Circuit upheld Rubaskin's conviction and sentence. (See prior posting.) After his bank fraud conviction, charges against Rubashkin of hiring of illegal aliens in his meat packing plant were dropped.  Des Moines Register reports on developments, along with further background.

England's Court of Appeal Rejects Religious Objections To Transgender Parent's Contact With Children

Britain's Court of Appeal yesterday reversed the decision of a Family Court judge who had ordered that the Orthodox Jewish father of five children who left the family to live as a transgender woman could have no direct contact in the future with the children.  The Family Court judge based his decision on the ostracism that the children and their mother would face from the North Manchester Charedi Jewish community in which they continued to live. (See prior posting.)  In In the matter of M (Children),  (EWCA, Dec. 20, 2017), the appeals court remanded the case to the Family Court, suggesting that some compromise might be found. The appeals court, however, made clear what result should follow if a compromise could not be found:

If the matter has in due course to be determined by the court, we would take the view that in the light of developments in Strasbourg jurisprudence there would be force in Ms Ball's submissions that the community’s beliefs, which resulted in the ready exclusion of young children from the rest of the community, did not meet the criteria set by the Strasbourg court for a religious belief that was entitled to protection under Article 9 [Freedom of thought, conscience and religion].... In that situation, we would expect the leaders of the community to help the community to adopt a more flexible attitude to their beliefs as they might affect the children....

Provisionally ... it seems to us that, if a court were to make an order granting the father some form of direct contact to the children, it would have to have concluded, after the most careful consideration with the parties, that that course was in the best interests of the children. If this involves any interference with any rights of the community to manifest their religious beliefs, we doubt that there would be any violation of the community’s rights under Article 9. This is because the court, as an organ of the State, will on this basis have decided that a restriction that may be involved of their right to express their religious beliefs serves the legitimate aim of protecting the children’s rights to have contact with their father and thus to enjoy family life with him, which rights are vital to their well-being.

The appeals court also issued a Press Summary of the decision. LGBTQ Nation reports on the decision.

Fired Atlanta Fire Chief Wins Challenge To Outside Employment Rules

In Cochran v. City of Atlanta, Georgia, (ND GA, Dec. 20, 2017), a Georgia federal district court gave a partial victory to a former Atlanta fire chief who was dismissed from his position over a book which he wrote.  The book, designed as a religious guide for men, called those who engage in extramarital or in homosexual sex "wicked" and "ungodly."  Plaintiff Kevin Cochran contends that he was fired because of his religious speech.  The city says Cochran was fired for ignoring the city's pre-clearance rules for outside employment, facilitating a public relations campaign against the mayor and the city, and also creating city vulnerability for employment discrimination claims. (See prior related posting.)

The court dismissed plaintiff's retaliation, free speech and free exercise claims.  However the court refused to dismiss plaintiff's challenges to the city's pre-clearance rules for outside employment.  The court granted plaintiff summary judgment on his prior restraint challenge to the pre-clearance rules, as well as on his claim that the rules are unconstitutional content-based restrictions that invite unbridled discretion by the city.  AP reports on the decision, indicating that the two sides have different views as to what issues remain to be determined in the case.

DC Circuit Refuses Injunction Pending Appeal In DC Religious Bus Ad Case

In Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, (DC Cir., Dec. 20, 2017), the Court of Appeals for the D.C. Circuit refused to issue an injunction pending appeal to prevent enforcement of a WMATA advertising policy that rejects bus ads which promote religion, religious practices or religious beliefs.  Earlier this month, the district court upheld WMATA's rejection of an ad from the Archdiocese promoting its "Find the Perfect Gift" Christmas campaign. (See prior posting.)  In denying the motion for an injunction, the Court of Appeals said in part:

Appellant has failed to establish a substantial likelihood of success because, at least at this early pre-discovery procedural stage, Appellant’s argument of discriminatory treatment is grounded in pure hypothesis. Appellant has not come forward with a single example of a retail, commercial, or other non-religious advertisement on a WMATA bus that expresses the view that the holiday season should be celebrated in a secular or non-religious manner.

The court did order an expedited briefing schedule, and urged the parties to limit the use of abbreviations, including acronyms, in their briefs.  Washington Post reports on the decision.

Oklahoma Supreme Court Reverses Itself In Suit By Muslim Convert To Christianity

In Doe v. First Presbyterian Church U.S.A. of Tulsa, (OK Sup. Ct., Dec. 19, 2017), the Oklahoma Supreme Court, in a 5-4 decision, withdrew its Feb. 2017 decision (see prior posting) dismissing on church autonomy grounds a suit challenging a church's publicizing of plaintiff's baptism, and replaced it with a majority opinion reversing the trial court's dismissal of the suit for lack of subject matter jurisdiction. At issue are tort and breach of contract claims against a Presbyterian congregation.  Plaintiff is a Syrian, Muslim refugee who became interested in converting to Christianity and agreed to be baptized only after it was agreed that his conversion would be kept private.  However Presbyterian Church doctrine requires that information about those baptized be made public.  The fact of plaintiff's baptism was published on the Internet, leading to plaintiff's kidnapping and torture by Islamic extremists when he returned to Syria for a visit. The majority held:

All parties agree Doe simply asked for baptism, but never to become a member subject to the Appellees' ecclesiastical hierarchy. Without this consent, Doe's religious freedom to not subject himself to the Appellees' judicature must be respected and honored under the longstanding and clear constitutional decisions from our Court and the Supreme Court of the United States. What Doe consented to and what the FPC communicated to Doe must be determined as a foundational inquiry regarding Doe's claims.

It was error for the district court to conclude that it had no subject matter jurisdiction to hear Doe's claims on the basis of ecclesiastical jurisdiction. The record below is replete with contested issues of fact which must be resolved by the trier of fact in an adversarial hearing below. This matter is hereby remanded back to the trial court for proceedings consistent with this decision.

Chief Justice Combs dissenting opinion argued that the majority wrongly conflated the church autonomy and ministerial exception doctrines in holding that the church autonomy defense is not jurisdictional. He went on to argue that plaintiff's non-membership in the church does not preclude application of the church autonomy doctrine. News OK reports on the decision. [Thanks to Scott Mange for the lead.]

Judge Reprimanded For Gay Adoption Recusal Order

The Kentucky Judicial Conduct Commission has voted to reprimand now-retired Family Court Judge W. Mitchell Nance.  In In re Nance, (Jud. Con. Commn, Dec. 19, 2017), the Commission concluded that Nance had violated Canons of Ethics that require judges to decide cases fairly and impartially when, based on his religious views, he issued an Order recusing himself from any case involving adoption of a child by a gay or lesbian.  As described by the Commission:

On April 27th, 2017 the Respondent issued General Order 17-01 declaring that “under no circumstance” would the adoption of a child by a homosexual be in the child’s best interest. Acknowledging that this declaration constitutes a “personal bias or prejudice” against homosexuals seeking to adopt children, Judge Nance ordered that any attorney filing a motion for adoption on behalf of a homosexual party notify court staff so that he could recuse and disqualify himself from any such proceeding.

(See prior related posting.) The Richmond Register reports on the Commission's decision.

10th Circuit: ERISA "Church Plan" Exemption Does Not Violate Establishment Clause

In Medina v. Catholic Health Initiatives, (10th Cir., Dec. 19, 2017), the U.S. 10th Circuit Court of Appeals held that Catholic Health Initiatives retirement plan for employees of 92 hospitals qualifies as a "church plan" under ERISA. One of the issues in the case was resolved by the Supreme Court while this appeal was pending.  Resolving the other issues, the 10th Circuit held that CHI's internal benefits committee qualifies as the statutorily required organization associated with a church that maintains a retirement plan.  The Court went on to conclude that the "church plan" exemption does not violate the Establishment Clause.  It held that the exemption meets all three prongs of the Lemon test.  Rejecting the argument that the exemption has the effect of favoring religion, the Court said in part:

Any law of general applicability that exempts religious organizations from its requirements could be said to convey a message that religion is favored. Religion is, after all, being exempted from a rule everyone else has to follow. Such an approach would mean that Congress could never exempt religious organizations from laws that might burden them—even when burdening religious organizations would itself run afoul of the Constitution. But this is common practice. A number of statutes regulate wide swathes of the American economy. And many of these statutes expressly exempt religious organizations from various requirements. 

Dismissal of Claims Against Church For Sex Abuse by Youth Director Is Upheld

In B.B. v. Methodist Church of Shelbina, Missouri, (MO App., Dec. 19, 2017), a Missouri appellate court upheld the dismissal of a suit for damages against a church growing out of the sexual molestation of appellant by the church's youth director.  The molestation occurred in 2006 when appellant was 12 years old.  The court summarized its holding in part as follows in an accompanying Opinion Summary:

(1) The Establishment Clause ... bars Appellant’s negligence-based claims and his claim for breach of fiduciary/confidential relationship against Respondents because we cannot resolve these claims without interfering with and interpreting the doctrine, policy, polity, practice, and administration of the Respondents.

(2) Appellant has not and will not be able to present sufficient evidence to prove an element of his claim for intentional failure to supervise.... Specifically, Appellant failed to establish the sexual abuse he suffered occurred on property possessed by the Church.

(3) Appellant’s claims for child sexual abuse and battery against the Church fail ... because: a. [The youth director's] misconduct was completely outside the course and scope of his employment with the Church; b. Appellant’s argument the trial court erred in not imposing liability on the Church based on its employee’s failure to act on information given to her ... is nothing more than a reconstituted claim of negligence against the Church, which is not cognizable pursuant to precedent from Missouri courts....

USCIRF Issues New Report On Iraq

With the defeat ISIS in Iraq, last week the U.S. Commission on International Religious Freedom issued a Policy Update on Iraq (full text). The Report's recommendations included the following:

Iraq’s progress and stability hinge on full respect for the rule of law and compliance with international human rights standards, including freedom of religion or belief. USCIRF continues to advocate for a peaceful home for all of Iraq’s citizens, particularly its religious minority communities that are at risk of extinction in their ancestral homeland. 

USCIRF urges the U.S. government to:

•  Designate Islamic State of Iraq and Syria (ISIS) as an “entity of particular concern” under the International Religious Freedom Act, as amended by the Frank R. Wolf International Religious Freedom Act of 2016;
• Encourage both the government of Iraq and the Kurdistan Regional Government (KRG) to cease conflict, protect the rights of all Iraqis, and resolve land disputes....

New Jersey Township Reverses Moves That Were Aimed At Excluding Orthodox Jews

According to JTA, as a strategic response to a lawsuit filed against it in October (see prior posting), the Mahwah, New Jersey Township Council last week voted to rescind an ordinance that banned out-of-state residents from using Township parks and passed a resolution withdrawing a proposed ordinance that would have prevented the construction of an eruv. (Dec. 14 Meeting Agenda).  Legal counsel had recommended the move in the face of charges that the Township was attempting to prevent Orthodox Jews from moving into the area.

Suit Charges Louisiana School Promotes Christian Beliefs and Broadcasts Daily Prayer

In Louisiana yesterday, the mother of a high school student filed suit against a local school board alleging extensive Establishment Clause violations.  The complaint (full text) in Cole v. Webster Parish School Board, (WD LA, filed 12/18/2017) alleges in part:

2 ... [T]he Webster Parish School District has a longstanding custom, policy, and practice of promoting and inculcating Christian religious beliefs by sponsoring religious activities and conveying religious messages to students, including by broadcasting prayers daily over school speakers.

3. So engrained is official promotion of religion at Webster Parish schools that virtually all school events—such as sports games, pep rallies, assemblies, and graduation ceremonies—include school-sponsored Christian prayer, religious messages and/or proselytizing. Graduation ceremonies are frequently held in houses of worship, and at times they resemble religious rituals that include Bible verses and Christian prayers.

The ACLU issued a press release announcing the filing of the lawsuit. Shreveport Times reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Bruce Ledewitz, Is Religion a Non-Negotiable Aspect of Liberal Constitutionalism?, (Michigan State Law Review, Vol. 2017, No. 2, 2017).
• Robin Bradley Kar, Transformational Marriage: The Religious Case for Supporting Same-Sex Marriage, (The Contested Place of Religion in Family Life, p. 375, 2018 (Cambridge University Press) (ed., Robin Fretwell Wilson), Forthcoming).
• Michael A. Helfand, The Future of Religious Arbitration in the United States: Looking Through a Pluralist Lens, (Oxford Legal Handbook on Global Legal Pluralism, Paul Schiff Berman ed., 2018 Forthcoming).
• Richard Schragger & Micah Schwartzman, Jews, Not Pagans, (Virginia Public Law and Legal Theory Research Paper No. 2017-67 (Dec. 2017)).
• Daniel O. Conkle, Religion, Law, and the Constitution, (Foundation Press, 2016).
• Eric Che Muma, The Impact of Anti-Terrorism Laws on Religious Freedom: Cameroon's Approach in Combating Terrorism and the Role of the Church, (Proceedings of the RAIS Conference: The Future of Ethics, Education and Research, 2017).
• Andras Koltay & Jeroen Temperman, Blasphemy and Freedom of Expression in Western Liberal Democracies, (Forthcoming as "Introduction" in: Jeroen Temperman and András Koltay (Eds.), Blasphemy and Freedom of Expression: Comparative, Theoretical and Historical Reflections after the Charlie Hebdo Massacre (Cambridge: Cambridge University Press, 2017), 1-21).
• Mohammad Hasan Javadi, Behzad Balazadeh & Mehdi Ghoreyshi, Restoring Dignity in Islamic Law, (December 10, 2017).

From SmartCILP:

• Lucien J. Dhooge, The Impact of State Religious Freedom Restoration Acts: An Analysis of the Interpretive Case Law, [Abstract], 52 Wake Forest Law Review 585-647 (2017).

Recent Prisoner Free Exercise Cases

In Kemp v. Liebel, (7th Cir., Dec. 11, 2017), the 7th Circuit upheld qualified immunity for an official who transferred two Jewish inmates to another facility so they could obtain kosher meals, but did not delay the transfer until the new facility offered Jewish group worship and study.

In Reed v. Bryant, (10th Cir., Dec. 13, 2017), the 10th Circuit held that the district court should not have dismissed an inmate's due process and RLUIPA challenges to a zero tolerance rule that automatically suspends and inmate's kosher diet if he consumes any non-kosher food.

In Schuh v. Michigan Department of Corrections, 2017 U.S. App. LEXIS 25351 (6th Cir., Dec. 14, 2017), the 6th Circuit affirmed the dismissal of an inmate's complaint that he was denied a kosher diet because his insufficient knowledge of Judaism showed a lack of sincerity of belief.

In Priest v. Holbrook, 2017 U.S. Dist. LEXIS 203386 (ED MI, Dec. 11, 2017), a Michigan federal district court dismissed a complaint by a Native American inmate that his eagle feathers were stolen or destroyed.

In Dexter v. Olson, 2017 U.S. Dist. LEXIS 203923 (WD MI, Dec. 12, 2017), a Michigan federal district court allowed an inmate to move ahead with claims against two officials for refusing to permit Nation of Islam inmates to attend the Eid al-Fitr celebration.

In King v. Lombardi, 2017 U.S. Dist. LEXIS 203959 (ED MO, Dec. 12, 2017), a Missouri federal district court held that for purposes of the exhaustion requirement, an inmate's charge that he was unable to attend religious services was not a separate claim, but part of his due process claim challenging his lengthy assignment to administrative segregation.

In Christian Separatist Church Society of Ohio v. Ohio Department of Rehabilitation & Corrections, 2017 U.S. Dist. LEXIS 205480 (SD OH, Dec. 14, 2017), an Ohio federal magistrate judge recommended that inmates who are members of the Christian Separatist Church be allowed to move ahead with their claim for declaratory and injunctive relief in their suit challenging prison policy that denies them separate congregate worship and requires they worship with the recognized Protestant Christian organization.

In Cooper v. True, 2017 U.S. Dist. LEXIS 203780 (D MN, Dec.12, 2017), a Minnesota federal district court accepted a magistrate's recommendation (2017 U.S. Dist. LEXIS 205900, Nov. 2, 2017) and dismissed a Jewish inmate's damage claim against a warden who kept him at a facility that lacked access to a rabbi, a Torah, and minyan.

In Greenhill v. Clarke, 2017 U.S. Dist. LEXIS 206384 (WD VA, Dec. 15, 2017), a Virginia federal district court dismissed a Muslim inmate's complaint regarding ritual contamination of his food tray.  It allowed him to proceed with RLUIPA, but not 1st Amendment, claims regarding beard length and group Jum'ah services.

In Miller v. Clarke, 2017 U.S. Dist. LEXIS 206382 (WD VA, Dec. 15, 2017), a Virginia federal district court allowed a Muslim inmate to move ahead with his damage claim growing out of his suspension from the Common Fare diet and denial of his participation in Ramadan.

Nigerian Lawyer's Group Denies Law School Grad Bar Admission Because of Hijab

According to a report on Friday from Al Jazeera, the Lagos-based Nigerian Law School has refused to allow a Muslim woman graduate to receive her call to the bar (i.e. be sworn in as a lawyer) because she insists on wearing her hijab under her traditional barrister's wig.  On Dec. 12, the Body of Benchers refused to allow Amasa Firdaus Abdulsalam to enter the Conference Centre where the call to the bar is held because she was in violation of the Law School's dress code.

Complaint Filed Against Convenience Store For Its Anti-Muslim Signs

CAIR announced last week that it has filed a discrimination complaint with the New Mexico Department of Workforce Solutions charging that a Mayhill, New Mexico convenience store has violated the state's anti-discrimination law by denying service to Muslims.  The store's windows are plastered with anti-Muslim and anti-African American signs, such as "Obama & other Muslims Not welcome here."  KOB4 News reports on the filing.

Religious Worker Visa Rule Requiring Compensation Violates Sect's RFRA Rights

In O Centro Espirita Beneficiente Uniao Do Vegetal v. Duke, (D NM, Dec. 15, 2017), a New Mexico federal district court concluded that immigration rules which deny religious worker visas to uncompensated clergy likely place a substantial burden in violation of RFRA on the UDV sect because its theology requires non-compensation of its ministers.  The court issued a preliminary injunction requiring US Citizenship and Immigration Services to reconsider petitions for an R-1 Religious Worker Visa and an I-360 Religious Worker petition without applying those provisions of the rules that require applicants be compensated employees or part of an established missionary program.

Final Tax Bill Extends 529 Plans To Elementary and Secondary School Tuition

The final version of the Tax Cuts and Jobs Act as it emerged from the Conference Committee (full text) extends Section 529 Qualified Tuition Programs so that they will now be able to be used to fund not just higher education expenses, but also up to $10,000 per student per year of tuition at public, private or religious elementary or secondary schools.

Court Issues Nationwide Injunction Against Expanded ACA Contraceptive Mandate Exemptions

In Commonwealth of Pennsylvania v. Trump, (ED PA, Dec. 15, 2017), a Pennsylvania federal district court granted a nationwide preliminary injunction  against enforcement of the Interim Final Rules issued by the Trump Administration in October (see prior posting) expanding exemptions from the ACA contraceptive coverage mandate for those with religious or moral objections.  First, in a lengthy discussion, the court concluded that Pennsylvania has standing to bring the challenge because of its "quasi-sovereign interest in safeguarding the health and wellbeing of its women residents," and because it will now "have to increase its expenditures for State and local programs providing contraceptive services."

The court, without reaching constitutional challenges, found that plaintiffs had shown a likelihood of success on the merits because of two types of violations of the Administrative Procedure Act: the government violated the APA's notice-and-comment requirements and the new rules are "arbitrary, capricious, or not in accordance with law."  Characterizing as "matryoshkanesque in its construction" the government's argument that it has statutory authority to bypass the notice-and-comment requirement, the court said: "The argument is creative, but not supported by law." Similarly the court rejected the government's argument that it had "good cause" to bypass the notice-and-comment requirement.

Examining whether the new rules are inconsistent with the Affordable Care Act, the court was particularly critical of the "moral exemption" rule, saying in part:

The Moral Exemption Rule allows any non-profit or for-profit organization that is not publicly traded to deny contraceptive coverage for its employees for any sincerely held moral conviction. This means that boards of closely held corporations can vote, or their executives can decide, to deny contraceptive coverage for the corporation’s women employees not just for religious reasons but also for any inchoate – albeit sincerely held – moral reason they can articulate. Who determines whether the expressed moral reason is sincere or not or, for that matter, whether it falls within the bounds of morality or is merely a preference choice, is not found within the terms of the Moral Exemption Rule. If one assumes that it is the Agency Defendants – or, indeed, any agency – then the Rule has conjured up a world where a government entity is empowered to impose its own version of morality on each one of us. That cannot be right.

The court went on to reject the government's argument that the new religious exemption is required by the Religious Freedom Restoration Act, citing cases in which the Third Circuit has found that the prior accommodation process governing religious objections did not impose a substantial burden on the exercise of religion.  Pennsylvania's attorney general issued a press release announcing the decision.  New York Times reports on the decision. [Thanks to Tom Rutledge for the lead.]

No Johnson Amendment Repeal In Conference Version of Tax Bill

The Conference Committee version of the Tax Reform Act which will be released today will not contain a repeal of the Johnson Amendment.  Washington Post reports that the Senate Parliamentarian has ruled that repeal of this provision cannot be included in legislation passed through the reconciliation process. The so-called "Byrd Rule" does not allow measures passed by reconciliation to contain matters extraneous to revenues or expenditures.  The Johnson Amendment bars non-profit organizations from engaging in partisan political activity.  A partial repeal of the Johnson Amendment had been in the House version of the tax bill (see prior posting), but not the Senate version (see prior posting). [Thanks to Nathan Walker for the lead.]

Trump Nominates Feldblum For Additional Term On EEOC

The White House announced earlier this week that President Trump has sent to the Senate the nomination of Chai R. Feldblum for an additional 5-year term on the Equal Employment Opportunity Commission.  Her current term expires on July 1, 2018.  Feldblum is the first openly lesbian EEOC Commissioner.  The EEOC enforces federal employment anti-discrimination laws, including laws prohibiting religious discrimination. Newsweek reports on the nomination.  The conservative blog Power Line speculates that the nomination is part of a deal to expedite a vote on at least one of two other EEOC nominees previously put forward by Trump: — Janet Dhillon and David Gade.

European Court Says Countries Must Recognize Same-Sex Unions Entered Abroad

In Orlandi and Others v. Italy, (ECHR, Dec. 14, 2017), the European Court of Human Rights in a Chamber Judgment, by a vote of 5-2, held that Italy violated the rights of same-sex couples by refusing to register their marriages.  The Court summarized the decision on its website as follows:

the Court has found a violation of the right to respect for private and family life. [Art. 8, European Convention on Human Rights.]  In this case 6 homosexual couples complained that they had been unable to have their marriages, which had been entered into abroad, registered or recognised in Italy.

The Court observed in particular that States were free only to authorise heterosexual couples to marry, but that homosexual couples needed to be legally recognised and to ensure the protection of their relationship. It also noted that the situation in Italy had changed in 2016 with the enactment of new legislation on homosexual civil partnerships.

Indonesia's Constitutional Court Refuses To Criminalize All Sex Outside of Marriage

Reuters reports that Indonesia's Constitutional Court yesterday in a 5-4 decision rejected a petition seeking to expand the definition of adultery in Indonesian law to cover not just married couples, but all sexual relations outside of marriage.  The petition was filed by the conservative Family Love Alliance (AILA).  Rights activists feared that the petition was particularly aimed at the LGBT community.  The Court majority held that any change in the law is a matter for Parliament, not the court.  Currently, same-sex relations between adults is outlawed only in the province of Aceh.

FLDS Leader Sentenced To 57 Months In Prison

As reported by News4Utah and Fox13News, yesterday a Utah federal district judge sentenced FLDS Church leader Lyle Jeffs to 45 months in prison for food stamp fraud and an additional 12 months for fleeing while on bond awaiting trial. He must also serve 3 years probation and pay restitution of $1 million to the Department of Agriculture.  In September, Jeffs plead guilty to the offenses. (See prior related posting.)

School Graduation In Christian Chapel Violates Establishment Clause

In American Humanist Association v. Greenville County School District, (D SC, Dec. 12, 2017), in a case on remand from the 4th Circuit (see prior posting), a South Carolina federal district court held that a South Carolina school district's practice of holding elementary school graduation ceremonies in the Christian Chapel of a local university violates the Establishment Clause. The court awarded plaintiffs $1 in nominal damages. The court said in part:

... [T]his ruling is limited to the specific facts of this case and should not be construed as a bright line rule regarding a school district’s use of a church-owned facility.... The fact that the district chose to hold the ceremony (which included school-endorsed Christian prayers) in a clearly Christian place of worship in the presence of religious iconography, including, among other things, a cross on the podium and eight stained glass windows depicting Christian imagery, only further created a likelihood that observers would perceive the district as endorsing a particular set of religious beliefs. There has been no showing that the chapel was the only available venue for the graduation ceremony, and in view of the overall circumstances of the event, there can be no doubt that the setting in which the ceremony occurred conveyed a message of religious endorsement and created a likelihood that the school-aged children would perceive a link between church and state.

 In a prior opinion in the case, the court had concluded student-led prayer at the school's past graduation ceremonies was unconstitutional.  In this case, the court held that the organizational plaintiff has standing to challenge the school's revised prayer policy as it is being applied.  Plaintiffs claim that as implemented, the revised policy merely continues past practices.  The court ordered the parties to attempt mediation before proceeding further. American Humanist Association issued a press release announcing the opinion.

Injunction Denied Again In Church Founder's Suit Over Marijuana Cutivation

In Harris v. City of Clearlake, (ND CA, Dec. 12, 2017), a California federal district court for the second time (see prior posting) denied a preliminary injunction, and dismissed with leave to amend, a religious discrimination suit brought by the founder of the Church of the Greater Faith & Redemption. The Church cultivates cannabis for sacramental purposes.  Plaintiff claims that his free exercise rights were infringed by the issuance against him of an administrative citation for violating a city ordinance regulating the growing of marijuana, and threats to close down the church's activities if plaintiff did not comply.  The court held that plaintiff had not shown how his exercise of religion was burdened.  Moreover, the ordinance at issue is a neutral law of general applicability.

UPDATE: A second amended complaint was dismissed in 2018 U.S. Dist. LEXIS 17742 (Feb. 2, 2018) for containing no new allegations.

9th Circuit: Protection of Sacred Land From Mining Does Not Violate Establishment Clause

In National Mining Association v. Zinke, (9th Cir., Dec. 12, 2017), the U.S. 9th Circuit Court of Appeals upheld the Obama administration's withdrawal for up to 20 years of over 1 million acres of land near Grand Canyon National Park from new uranium mining claims.  Among other things, the court rejected a claim that the Interior Department violated the Establishment Clause when it precluded new mining claims in order to protect land that has sacred meaning to Indian tribes. The court reasoned in part:

preservation of areas of cultural or historic value ... may constitute a “secular purpose” justifying state action even if the area’s significance has, in part, a religious connection.

In a related opinion in Havasupai Tribe v. Provencio, (9th Cir., Dec. 12, 2017), the 9th Circuit upheld the right of a two companies with a pre-existing approval to operate a uranium mine near Red Butte within the Grand Canyon withdrawal area.  Red Butte is a site of religious and cultural significance to the Havasupai Tribe.  Washington Post reports on the decisions.

PCUSA's Trust Clause Keeps Property of Breakaway Church For National Body

In Lehigh Presbytery v. First Presbyterian Church of  Bethlehem, Pennsylvania, (PA Com Pl., Dec. 12, 2017), a Pennsylvania trial court in a 43-page opinion held that the property of a break-away congregation belongs to the Presbyterian Church (USA) because of the trust clause in the PCUSA's Book of Order.  The court concluded its opinion as follows:

Since its inception, the congregational generations of FPCB have consistently expressed allegiance, fidelity, and adherence to the national denomination now known as PCUSA.  However, rather than leaving the Church to join a different religious denomination, the majority of the congregants wish to evict the national denomination from the church; thereby repudiating the intent of those who founded FPCB and extinguishing the sacrifices, contribution, and hard work of many prior generations of congregants who built FPCB with the expectation that FPCB would remain affiliated with the national denomination of Presbyterian Churches (USA).  Thus, although we have resolved this issue under neutral principles of law, we were also struck that to do otherwise, we would ignore the express intention of those who built this congregation with the expectation that those founding principles should forever direct its mission.

The Morning Call reports on the decision.

Australian Imams Publish Guidance For Muslim Witnesses In Judicial Proceedings

The Australian National Imams Council announced yesterday the release of a document titled Explanatory Note on the Judicial Process and Participation of Muslims (full text).  Prepared in cooperation with the Judicial Council of New South Wales, the document is designed to:

a) give practical guidance and explanation to members of the Australian Muslim community of the etiquette and behaviours expected of persons engaging in the judicial processes so that they may act consistently with these without compromising their religious beliefs; and,

b) provide information to judicial officers on Islamic concepts and practices as they relate to matters which may be raised in connection with Muslims participating in the court processes.

Among other things, the document says that there are no religious prohibitions on a Muslim standing up for the Magistrate or judge as a sign of respect.  It also announces:

It is not contrary to Sharia law for a woman to uncover her face when she is giving testimony in court, whether she is a witness in a case or is there to witness a deal, and it is not contrary to Sharia law for the Magistrate or Judge (male or female) to look at her in order to know or identify who she is, make assessments as to credibility where this is an issue and protect the rights of all concerned.

The document also outlines the appropriate way to swear in a Muslim witness. Daily Telegraph, reporting on the document, outlines some of the situations in Australian courts that led to the need for these clarifications.

Court Dismisses Establishment Clause Challenge To Tax Code

In Hinds v. United States Government, (ED MO, Dec. 11, 2017), a Missouri federal district court dismissed on various jurisdictional and procedural grounds a claim by by plaintiff that:

by virtue of the Tax Code, the Government has established an institutionalized faith and religion of taxism ...[and] that this institutionalized religion has the effect of endorsing, favoring, and promoting organized religions, which Plaintiff believes violates the Establishment and Free Exercise clauses of the Constitution.

Jewish Museum CFO Claims Religious Discrimination

The New York Post reported last week that the former chief financial officer of New York's Museum of Jewish Heritage has filed suit alleging that he was forced out of his position because he is Muslim.  According to the Post:

Mohad Athar says he was subjected to racial slurs and false performance reviews after a new chief executive officer, Michael Glickman, was hired in 2016.

Military Will Move Ahead With Transgender Enlistments

Yesterday, a Washington federal district court granted a preliminary injunction against President Trump's Memorandum that excludes transgender individuals from the military. The court in Karnoski v. Trump, (WD WA, Dec. 11, 2017), concluded that the Memorandum violates plaintiffs' equal protection, substantive due process and First Amendment rights, saying in part:

While Defendants identify important governmental interests including military effectiveness, unit cohesion, and preservation of military resources, they fail to show that the policy prohibiting transgender individuals from serving openly is related to the achievement of those interests.

The Washington state Attorney General issued a press release on the decision.

At least two other courts have previously issued similar injunctions. (See prior posting.)  Yesterday in one of those other cases, a D.C. federal district court judge refused to delay her January 1 deadline for the military to comply. (Washington Post).  The Department of Defense announced yesterday that the military will allow transgender enlistments beginning January 1. It will also reinstitute a 2016 policy that allows transgender enlistment only after 18 months of stability after treatment.

Settlement Reached In Suit Over Sale of Fetal Tissue

The Orange County, California District Attorney announced last week that it has obtained a settlement in an unlawful business practice lawsuit against two related companies that violated California and federal law provisions against sale for profit of fetal tissue.  The suit, California v. DV Biologics, LLC, was filed in California state court in October 2016. (Full text of complaint.) It asserts that the companies "obtained aborted fetus donations from Planned Parenthood and turned those donations into a profit-driven business." Under the settlement,  DV Biologics and DaVinci Biosciences will disgorge $7.78 million in profits which they will donate to  a non-profit academic and scientific teaching institution affiliated with a major U.S. medical school.  The companies also will pay civil penalties of $195,000 and will cease doing business in California.  Los Angeles Times reports on the settlement.

Christian Student Organization Sues University of Iowa Over Anti-Discrimination Rule

A Christian student organization, Business Leaders in Christ, brought suit yesterday against the University of Iowa challenging the University's de-registration of the organization.  The complaint (full text) in Business Leaders in Christ v. University of Iowa, (D IA, filed 12/11/2017), contends that the University objects to BLinC's requirement that its leaders agree to follow its Statement of Faith. The University concluded that the requirement violates the University's policy barring discrimination on the basis of sexual orientation or gender identity.  The University took action against the organization after a gay student who wanted to continue to pursue a same-sex relationship complained that he was not permitted to serve as vice president of BLinC.  The student organization's 20-count complaint contends that the University's action violates the 1st and 14th Amendments, as well as various other state and federal statutory and constitutional provisions. Becket issued a press release announcing the filing of the lawsuit.

Antagonists In Same-Sex Marriage Saga will Now Face Each Other In 2018 Election

In 2015, Rowan County, Kentucky clerk Kim Davis was at the center of the battle over same-sex marriage as she was held in contempt for refusing to allow her office to issue marriage licenses to same-sex coupled. (See prior posting.)  One of the individuals who was denied a marriage license was David Ermold.  Last week, Ermold filed papers to run against Davis for the Clerk position next year. Papers, of course, were filed in Davis' office.  The Luxora Leader reports:

... Ermold, alongside his now-husband, filled out the paperwork to run for office with Davis sitting across from him:

Davis smiled and welcomed them, chatting with them about the state retirement system and the upcoming Christmas holiday. She made sure Ermold had all of his paperwork and signatures to file for office, softly humming the old hymn ‘Jesus Paid It All’ as her fingers clacked across a keyboard.

When it was over, she stood and shook hands with Ermold, telling him: ‘May the best candidate win.'

More Challenges To FEMA's Policy On Disaster Aid To Religious Facilities

As three churches filed an appeal with the 5th Circuit (full text of Emergency Motion) after a Texas federal district court refused to enjoin a FEMA Policy Guideline that bars disaster relief grants for religious facilities, two Florida synagogues filed suit seeking to invalidate the same FEMA regulation. According to yesterday's Miami Herald, Chabad of Key West and Chabad of the Space Coast in Satellite Beach are seeking FEMA grants for repairs after damage from Hurricane Irma.  They contend that FEMA's policy violates their rights under the 1st Amendment and RFRA.

Fight Over Religious Artifacts Becomes Part of the Catalonian Independence Battle

An unanticipated development flowing from Spain's takeover of the Catalonian government is Spain's move to retrieve 44 religious artifacts housed in Catalonia’s Museum of Lleida. The Spanish government claims that nuns of a convent in Sijena illegally sold the rare artifacts to the Museum after the order moved to Barcelona. The Telegraph yesterday reported:

In 2015, after years of contradictory rulings and appeals, an Aragonese court found that the sales were illicit, and ordered the treasures returned. But Catalonia refused to comply, lodging an appeal which has yet to be ruled upon.

When that Catalan government was removed in November under Article 155 - which imposed direct rule in response to the illegal independence referendum - the Aragonese judge saw his chance, demanding that the return be approved by Spain's culture ministry.

The minister, Íñigo Méndez de Vigo, defended the sign-off, insisting it was not "adding to the fire" to comply with a court order.

It is expected that Spanish police will try to retrieve the artifacts today.

Recent Articles of Interest

From SSRN:

• Stephanie H. Barclay & Mark Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, (November 30, 2017).
• Blair A Major, Translating the Conflict over Trinity Western University's Proposed Law School, ((2017) 43:1 Queen's Law Journal [Forthcoming]).
• Andrea Pin, Balancing Dignity, Equality and Religious Freedom: A Transnational Topic, (Ecclesiastical Law Journal, Volume 19, Issue 3 September 2017, pp. 292-306).
• Haya Sandberg & Haim Sandberg, Dilemmas of Civil Tribunals in Formulating Their Positions Towards Religious Tribunals – The Case of Custody of Muslim Children, (5 Journal of Law, Religion and State 214-253 (2017)).
• Donald Paul Sullins, 'No Wedding's a Wedding Without a Cake': The History and Significance of the Wedding Cake, (October 24, 2017).
• Pierre-Alexandre Cardinal, The Modern and the Traditional; Islam, Islamic Law and Capitulations in Late Qajar Iran, (September 1, 2017).
• Herbert I. Lazerow, Holocaust Art Disputes: The Holocaust Expropriated Art Recovery Act of 2016, (The International Lawyer, Forthcoming).

From SmartCILP:

• Tanya Monforte, Broad Strokes and Bright Lines: A Reconsideration of Shari'a Based Reservations, 35 Columbia Journal of Gender & Law 1-69 (2017).
• Julie C. Suk, Equality After Brexit: Evaluating British Contributions to EU Antidiscrimination Law, 40 Fordham International Law Journal 1535-1552 (2017).
• Khaled A. Beydoun, On Islamophobia, Immigration, and the "Muslims Bans," 43 Ohio Northern University Law Review 443-458 (2017).

Recent Prisoner Free Exercise Cases

In Wilcox v. Brown, (4th Cir, Dec. 5, 2017), the 4th Circuit, reversing the district court in large part, held that an inmate had adequately stated a free exercise claim for denial of Rastafarian group religious services.

In Butts v. Martin, (5th Cir., Dec. 8, 2017), the 5th Circuit held that the district court had improperly dismissed a Jewish inmate's free exercise and retaliation claims growing out of a dispute about his wearing his yarmulke at a dinner.

In Ross v. Sandoval, 2017 U.S. Dist. LEXIS 198670 (D NV, Dec. 4, 2017), a Nevada federal district court allowed a Buddhist inmate to move ahead with his claim that he was denied a vegetable/ plant based diet.

In Cousins v. Lassiter, 2017 U.S. Dist. LEXIS 198816 (WD NC, Dec. 4, 2017), a North Carolina federal district court allowed a Rastafarian inmate who is seeking a vegan diet to move ahead with his challenge to regulations that bar him from changing his diet more than once each 90 days.

In Huapaya v. Davey, 2017 U.S. Dist. LEXIS 199128 (ED CA, Dec. 1, 2017), a California federal magistrate judge gave a Muslim inmate who claimed he was being prevented from attending religious services 30 days to file an amended complaint alleging a resultant substantial burden.

In Mixon v. Tyson, 2017 U.S. Dist. LEXIS 199188 (ED CA, Dec. 4, 2017), a California federal magistrate judge rejected an inmate's free exercise claim since he was permitted to put on a jump suit when he objected to appearing in his underwear before women.

In West v. Phelps, 2017 U.S. Dist. LEXIS 199301 (D DE, Dec. 4, 2017), a Delaware federal district court rejected free exercise claims by an inmate who practices the religion of Thelema. Plaintiff claimed he needed a healthy kosher diet; sexual relations with a female to perform a worship rite; and Tarot cards.  He also claimed that his prison job amounted to a form of slavery that violates his religious beliefs.

In Faber v. Smith, 2017 U.S. Dist. LEXIS 201243 (WD MI, Dec. 7, 2017), a Michigan federal district court held that a Bivens action is not available for a free exercise claim.

In Dawson v. Beard, 2017 U.S. Dist. LEXIS 201955 (ED CA, Dec. 7, 2017), a California federal magistrate judge recommended dismissing an inmate's claim that he was denied access to religious services and the right to fast.

In Thomas v. Bzoskie, 2017 U.S. Dist. LEXIS 201959 (D MN, Dec. 6, 2017), a Minnesota federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 202511, Oct. 30, 2017) and dismissed on res judicata grounds an inmate's free-exercise and equal-protection claims regarding Islamic gatherings, access to worship materials, and unequal treatment. It also refused to hear related state claims.

In Hunter v. Corrections Corporation of America, 2017 U.S. Dist. LEXIS 199955 (SD GA, Dec.5, 2017), a Georgia federal district court held that a religious program run at a private prison violates the Establishment Clause and awarded plaintiff $1 in nominal damages.

DC Transit Authority's Ban On Religious Ads Upheld

In Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, (D DC, Dec. 8, 2017), the DC federal district court upheld advertising Guidelines of the Washington Metropolitan Area Transit Authority which, among other things, bar transit vehicle ads "that promote or oppose any religion, religious practice or belief."  The Catholic Archdiocese challenged the application of this Guideline after WMATA refused to allow the Archdiocese's "Find the Perfect Gift" Christmas campaign ad.  The ad, intended for the exterior of public buses, was designed "to invite the public to consider the spiritual meaning of Christmas..." Denying a preliminary injunction, the court found that plaintiff is unlikely to succeed  on the merits of its free speech, free exercise, equal protection or RFRA arguments.

Rejecting the Archdiocese's free speech claim, the court held that the exterior of a bus in not a "public forum," and WMATA's restriction is neutral and reasonable.  The court said in part:

plaintiff maintains that the Guideline has been discriminatorily and arbitrarily enforced, favoring other religious advertisements over those sponsored by the Catholic Archdiocese.... But the record does not support this contention. None of the advertisements plaintiff highlights to make that point – neither the ads heralding the opening of another CorePower Yoga fitness studio in Clarendon, Virginia (“Muscle + Mantra”), nor the ads soliciting contributions to the Salvation Army’s Red Kettle effort (“Give Hope. Change Lives”) “promote or oppose any religion.”

Rejecting plaintiff's RFRA argument, the court said that no "substantial burden" or religious exercise was shown here:

... RFRA decisions turn on an element of compulsion, and here plaintiff is under no pressure to do anything. The fact that plaintiff has a sincere belief in spreading the gospel is not in dispute, but the existence of that belief, and even the sincere desire to act in accordance with it, is not enough to sustain a claim.

Washington Post reports on the decision.

4th Circuit En Banc and 9th Circuit Hear Arguments In Challenge To Third Travel Ban

On Wednesday, a 3-judge panel of the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in State of Hawaii v. Trump, a challenge to President Trump's third travel ban Proclamation. In the case a Hawaii federal district court-- without reaching the Establishment Clause question-- issued a nation-wide temporary restraining order barring enforcement of most portions of this latest, more focused, version of President Trump's travel ban.  The court (See prior posting.)  The Hill reports on the arguments.

Yesterday, the U.S. Fourth Circuit Court of Appeals, sitting en banc, heard two hours of arguments (audio of full arguments) in International Refugee Assistance Project v. Trump, another challenge to the same travel ban Proclamation.  In the case, a Maryland federal district court held that the Proclamation violates provisions of the Immigration and Nationality Act that prohibit denial of immigrant visas on the basis of nationality, and that, like the prior two bans, the third travel ban also violates the Establishment Clause. (See prior posting.)  The Hill reports on the arguments.

Earlier this week, the U.S. Supreme Court granted a stay of the preliminary injunction while appeals are pending in both cases.  (See prior posting.)

President Hosts Hanukkah Reception At White House

Yesterday evening President Trump and the First Lady hosted a Hanukkah party in the East Room of the White House. In his remarks (full text), the President said in part:

The miracle of Hanukkah is the miracle of Israel. The descendants of Abraham, Isaac, and Jacob have endured unthinkable persecution and oppression.

But no force has ever crushed your spirit, and no evil has ever extinguished your faith. And that is why the Jewish people shine as a light to all nations. And right now I’m thinking about what’s going on and the love that's all over Israel and all about Jerusalem. (Applause.)

On behalf of all Americans, I also want to say how grateful I am for Jewish congregations throughout our country. You cherish your families, support your communities, and uplift our beloved country.

Photos from the reception are posted on the President's Instagram account.

Rabbinical College Wins Challenge To Zoning and Environmental Laws

In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, NY, (SD NY, Dec. 7, 2017), a New York federal district court in a 112-page opinion held that various zoning and environmental regulations enacted by the Village of Pomona violate the rights of plaintiff which is seeking to build a rabbinical college, on-campus housing and related religious facilities on a 100-acre piece of land which it owns.  The court held that plaintiff had proven that the challenged laws were enacted with a discriminatory purpose to "thwart the expansion of the orthodox/ Hasidic community.  The challenged laws were found to violate the Equal Protection Clause, the state and federal Free Exercise Clauses, RLUIPA's non-discrimination provisions, and the Fair Housing Act.  the court also concluded that the challenged laws imposed a substantial burden on plaintiff's religious exercise in violation of RLUIPA.  Lohud reports on the decision.

Court Upholds FEMA Policy Denying Disaster Grants To Religious Facilities

In Harvest Family Church v. Federal Emergency Management Agency, (SD TX, Dec. 7, 2017), a Texas federal district court refused to issue a preliminary injunction against a FEMA Policy Guideline that bars disaster relief grants to facilities that are used primarily for religious activities. (The Guideline also bars grants to facilities used primarily for political, athletic, recreational, vocational, or academic activities.)  The court concluded that plaintiff had not shown a substantial likelihood of success on its Free Exercise challenge to the Guideline.  It held that the case is governed not by the U.S. Supreme Court's Trinity Lutheran decision, but instead by the Supreme Court's decision in Locke v. Davey:

[T]he Locke plaintiff was not denied a scholarship because of what he was, but “because of what he proposed to do—use the funds to prepare for the ministry.” ... In Trinity Lutheran, on the other hand ... [t]he funds were not denied because of what they would be used for—a non-religious use—but because of the church’s status as a religious institution.... In the instant case, FEMA’s policy is closer to the scholarship in Locke. Plaintiffs would use the FEMA funds to rebuild facilities used primarily to promote religious activities.... Further, FEMA’s policy even distinguishes based on use, rather than status or identity....

MySanAntonio.com reports on the decision. [Thanks to Marty Lederman via Religionlaw for the lead.]

Australia Approves Same-Sex Marriage

As reported by the New Zealand Herald, Australia's Parliament has given final approval to same-sex marriage. The vote comes after a government mail survey showed that 61.6% of Australians favored marriage equality.  (See prior posting.) Marriage Amendment (Definition and Religious Freedoms) Bill 2017  passed the House of Representatives yesterday.  It was approved 43-12 last week by the Senate.  It now goes to the Governor General for royal assent.  The Herald reports further:

Amendments meant to safeguard freedoms of speech and religion for gay-marriage opponents were all rejected, though those issues may be considered later. The government has appointed a panel to examine how to safeguard religious freedoms once gay marriage is a reality in Australia....

The current bill allows churches and religious organizations to boycott gay weddings without violating Australian anti-discrimination laws.

Existing civil celebrants can also refuse to officiate at gay weddings, but celebrants registered after gay marriage becomes law would not be exempt from the anti-discrimination laws.

One of the rejected amendments would have ensured Australians could speak freely about their traditional views of marriage without fear of legal action.

ABC News says that the first same-sex weddings could take place as early as January 9.

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.

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.

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.

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.