Report Says Women of Color Disproportionately Give Birth In Catholic Hospitals In 19 States

The Columbia Law School Public Rights/ Private Conscience Project yesterday released a new report Bearing Faith: The Limits of Catholic Health Care for Women of Color. The study focuses on racial disparities of women giving birth in Catholic hospitals governed by Ethical and Religious Directives for Catholic Health Care Services.  According to the report:

The ERDs forbid hospitals owned by or affiliated with the Catholic Church ... from providing many forms of reproductive health care, including contraception, sterilization, many infertility treatments, and abortion, even when a patient’s life or health is jeopardized by a pregnancy. Catholic hospitals represent a large and growing part of the U.S. health care system. One in six hospital beds in the country is in a hospital governed by the ERDs....

This study finds that in nineteen out of the thirty-four states/territories that we studied, women of color are more likely than white women to give birth at hospitals bound by the ERDs.

The study found that in 12 states and one territory, Catholic hospitals disproportionately served white women, two states showed little disparity, and seven states had no Catholic birth hospitals.

Trump Administration Takes Several Actions Supporting Pro-Life Advocates

As reported by CNN, today was the 45th annual March for Life in Washington, D.C.  Both Vice-President Pence and President Trump addressed the marchers via video feed from the White House Rose Garden. (Video of remarks.) Today, President Trump also issued a Proclamation (full text) declaring January 22 as National Sanctity of Human Life Day. The White House additionally issued a Fact Sheet titled President Donald J. Trump is Standing Up for the Sanctity of Life.

Today, the Department of Health and Human Services also announced two pro-life initiatives. The HHS Office for Civil Rights issued a 216-page release (full text) proposing revisions in in order to expand enforcement authority as to rules that protect conscience objections in delivery of health care services. Second, the Department of Health and Human Services issued a Letter to State Medicaid Directors (full text) rescinding SMD #16-005, a 2016 letter to Medicaid.  That letter which today's action rescinded provided in part:

... [S]tates may not deny qualification to family planning providers, or take other action against qualified family planning providers, that affects beneficiary access to those providers—whether individual providers, physician groups, outpatient clinics or hospitals—solely because they separately provide family planning services or the full range of legally permissible gynecological and obstetric care, including abortion services (not funded by federal Medicaid dollars, consistent with the federal prohibition), as part of their scope of practice.

Supreme Court Grants Cert. In 3rd Travel Ban Challenge; Asks For Argument on Establishment Clause

The U.S. Supreme Court today issued an order (full text) granting review in Trump v. Hawaii, (Docket No. 17-965, cert. granted 1/19/2018).   In the case, the U.S. 9th Circuit Court of Appeals held that the third version of President Trump's travel ban is inconsistent with the Immigration and Nationality Act, but stayed its injunction pending Supreme Court review. (See prior posting.) While the 9th Circuit avoided ruling on plaintiffs' Establishment Clause claim, the Supreme Court ordered the parties to brief and argue that issue (raised as Question 3 in Hawaii's brief in opposition), as well as the issues raised by the original petition for certiorari.  SCOTUSblog's case page has links to additional primary source material relating to the case.

No Title VII Claim Based on "Perceived" Religion

In Cole v. Cobb County School District, (ND GA, Jan. 18, 2018), a Georgia federal district court dismissed Title VII religious discrimination claims brought by a school principal who was transferred to a low performing school far from her home after parents complained about her introduction of mindfulness practices, including yoga, at her school.  The principal is Christian, but parents complained to the school board falsely claiming that the she was a Buddhist and was attempting to indoctrinate their children with Buddhism.  The court held that Title VII does not cover discrimination or reverse discrimination claims based on an individual's perceived, rather than their actual, religion,  The court however did permit plaintiff to move ahead with her Establishment Clause claim.

10th Circuit Reverses Summary Judgment In Title VII Suit By Seventh Day Adventists

In Tabura v. Kellogg USA, (10th Cir., Jan. 17, 2018), the U.S. 10th Circuit Court of Appeals reversed a district court's grant of summary judgment to employer Kellogg in a Title VII suit brought by Seventh Day Adventists who were seeking an accommodation for their Sabbath observance.  The court held:

Title VII required Kellogg reasonably to accommodate Plaintiffs’ religious practice, if Kellogg could do so without incurring undue hardship to its business. Whether Kellogg reasonably accommodated Plaintiffs’ Sabbath observance and, if not, whether Kellogg could do so without undue hardship, must await further proceedings.

In reaching this conclusion, the court rejected arguments that it should adopt per se rules defining reasonable accommodation, and instead emphasized that these issues must be decided on a case specific basis.  Business Insurance reports on the decision.  [Thanks to Steven H. Sholk for the lead.]

Trump Administration Is Planning Expanded Religious and Moral Exemptions For Doctors

The Wall Street Journal reported yesterday that the Trump Administration is planning to expand exemptions from health care anti-discrimination rules for doctors who have religious or moral objections to gender transitioning or abortion.  The Department of Health and Human Services also plans to create  a division of "conscience and religious freedom protections" in the Department's Office for Civil Rights.  HHS sent its rule proposals to the White House for review last Friday.  President Trump might announce the changes on Friday when he addresses the March for Life on the National Mall by satellite. [Thanks to Steven H. Sholk for the lead.]

UPDATE: On Jan. 18, the Department of Health and Human Services formally announced formation of a new Conscience and Religious Freedom Division in its Office for Civil Rights.

"Church Plan" Class Action Settled

Last June, the U.S. Supreme Court held that retirement plans of religiously affiliated health care systems qualify as "church plans" exempt from ERISA. (See prior posting.) Now a settlement has been approved by an Illinois federal district court in a class action suit against Ascension, the largest Catholic health care system in the country. The suit was one of many that challenged the availability of the  church plan exemption.  As reported by Cook County Record:

Under the deal, Ascension agreed to pay $29.5 million into a trust fund, and agreed to not reduce any retiree accrued benefits for at least the next seven years, and provide various annual plan notices, “equitable provisions that mimic certain provisions” of the federal Employee Retirement Income Security Act, according to a memorandum filed by plaintiffs in support of the settlement.

However, the deal would allow Ascension to buy out its full obligation, by contributing $25 million to the trust fund.

3rd Circuit: Preachers' Civil Rights Suit Dismissed On Immunity Grounds

In Karns v. Shanahan, (3rd Cir., Jan. 11, 2018), t U..S. 3rd Circuit Court of Appeals affirmed the dismissal of a civil rights damage action brought by two evangelical Christian ministers who were arrested for preaching on an NJ Transit train platform without the required permit.  In a 2-1 decision, the court held that NJ Transit is an arm of the state and thus has 11th Amendment immunity.  The 3-judge panel agreed unanimously that the police officers who were also sued have qualified immunity.  WHYY News reports on the decision.

Advocacy Groups Say Military Is Imposing Religious Participation On Cadets

The Freedom From Religion Foundation and American Atheists announced this week that they have sent a joint letter (full text) to Secretary of Defense James Mattis complaining about an increased incidence of military members and their families being forced to participate in religious observances at military training facilities. The letter says in part:

By scheduling prayer in graduation ceremonies, and by leading cadets in prayer prior to examinations, our military training facilities are violating the Establishment Clause of the First Amendment. By assigning menial or labor-intensive tasks to cadets who elect not to participate in worship services, these facilities are violating the equal protection principles enshrined in the Due Process Clause of the Fifth Amendment.

Friendly Atheist Blog reports on the letter.

Couple Sues Printer Over Substitution of Anti-Gay Pamphlets For Wedding Programs

The New York Post this week reports on a lawsuit filed in Massachusetts federal district court against Vistaprint.  The company's North American Business Headquarters are located in Boston.  Plaintiffs are a same-sex couple who were married in a ceremony in Pennsylvania last September. The couple had ordered 100 copies of a customized program for their wedding.  When they opened the package Vistaprint sent to them, they found that instead of the programs they had been sent 80 copies of an anti-gay pamphlet titled "‘Understanding Temptation: Fight the good fight of the faith." The pamphlets warn: "Satan entices your flesh with evil desires." Vistaprint, which says it would not discriminate on the basis of sexual orientation, indicated that it had just learned of the incident and have begun an internal investigation.

Wife's Religious Convictions Do Not Override Vermont Divorce Law

In Maghu v. Singh, (VT Sup. Ct., Jan. 12, 2018), the Vermont Supreme Court rejected a wife's attempt to obtain dismissal of a no-fault divorce petition filed by her husband.  The couple was married in India and, among other contentions, the wife argued that Vermont's courts should defer to Indian divorce law. In rejecting that contention, the court said in a footnote:

We reject wife’s argument that the court’s grant of a no-fault divorce contrary to India’s Hindu Marriage Act, and the religious requirements reflected therein, impinges on wife’s free exercise of religion in violation of Chapter I, Article 3 of the Vermont Constitution. Quite the opposite, it would be constitutionally problematic, to say the least, if we began to decline access to a divorce from an otherwise qualified domiciliary on the basis of the religious convictions of the other party. 

Inter-American Human Rights Court Recognizes Same-Sex Marriage and Transgender Rights

In an Advisory Opinion (full text in Spanish) dated Nov. 24, 2017, but apparently first published on Jan. 9, 2018, the Inter-American Court of Human Rights ruled that the American Convention on Human Rights requires governments to recognize family rights of same-sex couples and transgender rights. As reported by the Washington Blade:

The Inter-American Court of Human Rights on Tuesday issued a landmark ruling that recognizes same-sex marriage and transgender rights in the Western Hemisphere. 

The seven judges who issued the ruling stated governments “must recognize and guarantee all the rights that are derived from a family bond between people of the same sex.” Six of the seven judges also agreed that it is necessary for governments “to guarantee access to all existing forms of domestic legal systems, including the right to marriage, in order to ensure the protection of all the rights of families formed by same-sex couples without discrimination.”

The court issued its ruling after the Costa Rican government in 2016 asked for an advisory opinion on whether it has an obligation to extend property rights to same-sex couples and allow transgender people to change their name and gender marker on identity documents.

The ruling says the Costa Rican government must allow trans people to legally change their name and gender marker on official documents.

According to La Voz,  "Costa Rica is the only country that gives the same weight to a CIDH ruling as it does to a national court’s judicial decision."

Church Camp Loses Challenge To Zoning Decision On Neighboring Dairy Farm

In House of Prayer Ministries, Inc. v. Rush County Board of Zoning Appeals, (IN App., Jan. 16, 2018), an Indiana state appeals court rejected a challenge by a church summer camp to a zoning board decision granting a special exception to a dairy farm to operate a concentrated animal feeding operation one-half mile from the summer camp.  The church argued in part that the grant of the special exception substantially burdens its religious exercise by "imperiling the health of the children" at its camp.  The court first held that the federal Religious Land Use and Institutionalized Persons Act is not available to the church here because a RLUIPA claim can be raised only by a person with a property interest in the land that is regulated.  RLUIPA does not extend to other property that is merely affected by a land use decision as to neighboring land.

The court went on to hold that Indiana's state Religious Freedom Restoration Act was also not violated:

The [Board of Zoning Appeal's] apparent assessment that House of Prayer will not be substantially burdened in the exercise of its religion by the grant of the special exception is supported by substantial evidence.

Indiana Lawyer reports on the decision.

Suit Contends Ministerial Exception Does Not Bar Hostile Work Environment Claims

Yesterday's Cook County Record reports on a hostile work environment lawsuit filed in federal court in Chicago by Sandor Demkovich, former organist and music director of St. Andrew the Apostle Church in Calumet City, Illinois.  Demkovich was fired several days after he entered a same-sex marriage. His earlier lawsuit charging employment discrimination was dismissed on "ministerial exception" grounds.  The new lawsuit argues that the ministerial exception doctrine does not apply to hostile work environment claims.

Justice Department Supports Archdiocese Against Washington Area Transit Authority

As previously reported, the Court of Appeals for the D.C. Circuit is considering an appeal by the Archdiocese of Washington challenging the refusal of the Washington Area Metropolitan Transit Authority to accept bus ads that promote religion, religious practices or religious beliefs. Yesterday the U.S. Department of Justice filed an amicus brief (full text) supporting the Archdiocese whose Christmas ad was rejected by WMATA. The brief argues that "WMATA’s policy constitutes unconstitutional viewpoint discrimination." National Law Journal reports on DOJ's action.

Suit In Belgium Challenges Kosher Slaughter Ban

In Belgium yesterday, three organizations filed suit challenging legislation in the Flemish Region of the country that bans kosher and halal slaughter beginning in 2019. As reported by The Daily Mail, the lawsuit contends that the legislation in Flanders violates the freedom of religion protections found in the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and the Belgian Constitution. The Coordinating Council of Islamic Institutions has separately filed suit challenging the law. A suit filed last November challenged a similar law enacted by the Walloon Region. (See prior posting.)

Today Is Religious Freedom Day

As reported by Blog from the Capital, today is Religious Freedom Day, the anniversary of the passage of the Virginia Statute of Religious Freedom in 1786. Traditionally the President issues a Proclamation designating the day.

UPDATE: This morning President Trump issued a  Religious Freedom Day Proclamation (full text) which reads in part:

Our Constitution and laws guarantee Americans the right not just to believe as they see fit, but to freely exercise their religion.  Unfortunately, not all have recognized the importance of religious freedom, whether by threatening tax consequences for particular forms of religious speech, or forcing people to comply with laws that violate their core religious beliefs without sufficient justification.  These incursions, little by little, can destroy the fundamental freedom underlying our democracy.  Therefore, soon after taking office, I addressed these issues in an Executive Order that helps ensure Americans are able to follow their consciences without undue Government interference and the Department of Justice has issued guidance to Federal agencies regarding their compliance with laws that protect religious freedom.  No American — whether a nun, nurse, baker, or business owner — should be forced to choose between the tenets of faith or adherence to the law.

French Mayor Bars Pork Alternatives In Schools

The Washington Post yesterday reports on the newest battle in France over how to implement the principle of secularism (laïcité ):

Beaucaire, in the south of France, has become the latest fault line in a battle over the place of Islam in a staunchly secular society. On the day school started back after the holiday break, Julien Sanchez, the town’s 34-year-old mayor — and a member of the far-right National Front — outlawed alternatives to pork in school cafeterias, insisting that religious exceptions to the menu violate France’s vaunted Republican principles.

For many, his message was clear: Being French means eating pork, Muslims (and Jews) be damned. Unsurprisingly, outrage immediately ensued from virtually every corner of society: parents, the local opposition, Muslim leaders and even the French government.

One Count Dismissed In Michigan Female Genital Mutilation Case

A Detroit (MI) federal district court yesterday dismissed the most serious of seven charges against two doctors indicted for their involvement in alleged female genital mutilation of girls who are members of the Dawoodi Bohra, a Muslim sect from western India. (See prior related posting.)  In United States v. Nagarwala, (ED MI, Jan. 14, 2018), the court dismissed the Count charging violation of 18 USC Sec. 2423, Conspiracy to Transport Minor with Intent to Engage in Criminal Sexual Activity.  The court held that "sexual activity" as used in the statute must involve libidinal gratification.  Applying that definition, the court said:

The government does not contend that Dr. Nagarwala or Dr. Attar sought or obtained any libidinal gratification from subjecting the minor victims to FGM....  In short, while the indictment may sufficiently allege a violation of the FGM statute – the statute adopted by Congress to address precisely such genital cutting – it does not allege that defendants transported minors intending that they engage in “sexual activity.” 

Detroit News reports on the decision.

Belief In Government Corruption Is Not a "Religious" Belief

The Daily Sentinel reports that last Thursday a Colorado federal district court jury found Rocky Hutson guilty on multiple fraud charges.  Hutson, a member of the sovereign citizen movement, had attempted to use the Religious Freedom Restoration Act as a defense.  However federal district court Judge Marcia Krieger rejected the defense, saying that while Hutson's beliefs about the corruption of the U.S. government are sincere, but they are not "religious" beliefs.

Recent Articles and Books of Interest

From SSRN:

• Matthew S. Erie, The Afterlife of Property: Affect, Time, Value, (Legalism: Property and Ownership, edited by Hannah Skoda, Tom Lambert, and Georgy Kantor. Oxford University Press, 89-114).
• Josh Blackman, The Domestic Establishment Clause, (Forthcoming in 23 Roger Williams University Law Review).
• Engy Abdelkader, The Muslim Ban and Separation of Powers Doctrine in Trump's America, (State, Religion and Muslims: Between Discrimination and Protection at the Executive, Legislative and Judicial Levels, Forthcoming).
• Michael A. Helfand, Reasoning Through Clashes between Religion and Equality: Case Law, Skeptics, and Social Coherence, (Constitutional Commentary, Vol. 33, 2018, Forthcoming).
• Robert A. Kahn, Denial, Memory Bans and Social Media, (January 2018).
• Michael A., Helfand, Reasoning Through Clashes between Religion and Equality: Case Law, Skeptics, and Social Coherence, (Constitutional Commentary, Vol. 33, 2018).

Recent Books:

• Katherine Ludwig Jansen, Peace and Penance in Late Medieval Italy (Princeton Univ. Press, Dec. 2017).
• Hüseyin Yılmaz, Caliphate Redefined: The Mystical Turn in Ottoman Political Thought, (Princeton Univ. Press, Dec. 2017).
• Mary Ziegler, Beyond Abortion: Roe v. Wade and the Battle for Privacy,  (Harvard Univ. Press, Feb. 2018).

Recent Prisoner Free Exercise Cases

In Carter v. Fleming, (4th Cir., Jan. 8, 2018), the 4th Circuit reversed the district court's grant of summary judgment to defendants in an inmate's suit claiming that the Common Fare menu does not comply with Nation of Islam dietary restrictions because it includes fried foods and challenging his suspension from the Common Fare diet.

In Brooks v. Williams, 2018 U.S. Dist. LEXIS 3050 (Jan. 8, 2018), an Illinois federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 214438, Dec. 19, 2017) and refused to dismiss on exhaustion grounds an inmate's claim that he was denied access to Rastafari Sabbath services.

In Newman v. Grzegorek, 2018 U.S. Dist. LEXIS 3626 (ND IN, Jan. 9, 2018), an Indiana federal district court allowed an inmate to move ahead whit his challenge to jail policies that prevented him from attending church services and Bible study.

In Trisvan v. Annucci, 2018 U.S. Dist. LEXIS 3851 (ED NY, Jan. 9, 2018), a New York federal district court dismissed with leave to file an amended complaint a parolee's claim that his curfew and travel conditions prohibit him from praying at a mosque and participating in Ramadan between 9:00 PM and 7:00 AM, and from making a pilgrimage to Mecca.

In Canseco v. Spearman, 2018 U.S. Dist. LEXIS 3991 (ED CA, Jan. 9, 2018), a California federal magistrate judge dismissed a Muslim inmate's complaint that he was not allowed to attend evening religious activities in the dining hall during Ramadan.

In Wallace v. Ducart, 2018 U.S. Dist. LEXIS 4684 (ND CA, Jan. 10, 2018), a California federal magistrate judge dismissed with leave to amend an inmate's claim that he was required to strip in front of female guards in violation of his religious beliefs, and was not allowed to properly clean himself before prayer.

In Hatcher v. Trotter, 2018 U.S. Dist. LEXIS 4926 (WD TN, Jan. 11, 2018), a Tennessee federal district court, adopting a magistrate's recommendation (2017 U.S. Dist. LEXIS 215104, Dec. 20, 2017) dismissed an inmate's complaint that he was unable to attend Sunday religious services on one occasion due to a lock down.

In Rivera v. Davey, 2018 U.S. Dist. LEXIS 5422 (ED CA, Jan. 10, 2018), a California federal magistrate judge recommended dismissing an inmate's complaint that he was denied the opportunity to perform obligatory Jewish prayer services and holy day events.

Bureau of Prisons Says Objecting Chaplains Need Not Carry Pepper Spray

A Liberty Counsel press release today reports that the U.S. Bureau of Prisons has granted accommodation requests from prison chaplains who object on religious grounds to carrying pepper spray as a potential defense in emergency situations.  Various prison Chaplains were told to carry the spray after enactment of the Eric Williams Correctional Officer Protection Act of 2015.  Liberty Counsel sent a letter in October seeking a religious accommodation and religious exemption for chaplains.

Quebec Court: Muslim Community Center Is Not "House of Worship"

The Globe and Mail reported yesterday that a Quebec Superior Court judge has ruled that a Muslim community center in a Montreal suburb is not a "house of worship". The city of Mascouche attempted to shut down the community center in a strip shopping mall on the ground that under zoning rules "houses of worship" are not permitted in the area. A room in the community center was used by men for prayer. The court said however that "prayers can be uttered in all places and not exclusively in a place of worship."

Parents Challenge Teacher's Distribution of Material Disparaging Muslims

According to yesterday's Pasedena Star-News, the parents of a 7th grade boy have filed an appeal with the California Department of Education over the Mesa Union School District's clearing of a teacher's who distributed material disparaging Muslims.  The boy is being bullied by other students because of his religion. The paper reports:

The material the teacher distributed contained information taken from the website billionbibles.org, which makes “inaccurate and disparaging” statements about Islam and Muslims,” said Masih Fouladi, CAIR-LA’s advocacy manager.

The sheet of paper distributed by the teacher states Sharia Law, or Islamic religious law, gives Muslim men sexual rights over any woman or girl not wearing the hijab or head scarf; allows a man to marry an infant girl and consummate the marriage when she is 9; and requires Muslims to lie to non-Muslims to advance their faith.

“The main issue at hand with this incident of bullying is that the material was drawn from a website that is clearly intended to promote one religion at the expense of another,” Fouladi said. “This has no place in our public school system and is a clear violation of the First Amendment.”

School District Says First Amendment Bars District Diwali Holiday

According to Fox4News yesterday, Coppell Independent School District in Texas has refused requests to schedule a day off from school during Diwali. Nearly half the students in the school district are Asian.  The school board however took the position that principles of separation of church and state prevent it from recognizing a religious holiday.  When proponents argued that the district schedules a holiday on Good Friday, the school district responded that Good Friday is considered a professional development and bad weather make-up day.

European Court Vindicates Critic of Anti-Muslim Political Remarks

In Case of GRA Stiftung gegen Rassismus und Antisemitismus v. Switzerland,  (ECHR, Jan. 9, 2018), the European Court of Human Rights in a Chamber Judgment held that the free speech rights of a civil rights organization were infringed when Swiss courts sanctioned it for a web posting calling remarks of a youth leader of a right wing party "verbal racism." The remarks were made in the context of a referendum on banning the building of minarets. A Swiss appellate court found that the web posting infringed the party leader's personality rights.  It required the organization to remove its web posting and replace it by the court's opinion. It also was required to pay legal and court costs. The ECHR held in part:

When assessing the impugned statements in the present case, it is first of all important to bear in mind the general background of the ongoing political debate in which both statements were made.

... Both B.K.’s speech and the applicant organisation’s article concerned a topic of intense public debate in Switzerland at the material time, which was the popular initiative against the construction of minarets, which was widely reported on in national and international media. The initiative, calling for a ban on the construction of minarets, was ultimately accepted by a referendum on 29 November 2009 and such a ban was included in the Swiss Constitution....

The Court reiterates that a distinction has to be made between private individuals and persons acting in a public context, as political or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures.... 

... B.K. had willingly exposed himself to public scrutiny by stating his political views and therefore had to show a higher degree of tolerance towards potential criticism of his statements by persons or organisations which did not share his views.

A Chamber Judgment may be appealed to the Grand Chamber.  the Court issued a press release summarizing the decision.  Law & Religion UK has more on the case.

Suit Challenges Canada's Denial of Grants to Pro-Life Group

In Canada last week, a pro-life group filed suit in Federal Court in Alberta challenging new rules that bar it from receiving grants under the Canada Summer Jobs Program.  According to Life Site News report on the lawsuit, Canada Summer Jobs provides grants to non-profit groups, small businesses, and public sector employers in order to create jobs for students between 15 an 30 years old.  The complaint (full text) in Right to Life Association of Toronto and Area v. Canada (Minister of Employment, Workforce and Labour), (Fed. Ct., filed 1/4/2018), contends that the grant restrictions infringe plaintiffs' freedom of religion, conscience and belief, as well as their equal protection rights, under Sections 2(a)-(b) and 15 of the Canadian Charter of Rights and Freedoms. Last December, Canada's Employment Ministry added a requirement that in order to receive a grant under the program, an organization had to attest to the following:

Both the job and the organization's core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights.  These include reproductive rights, and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation, or gender identity or expression.

Suit Challenges Rules Against Proselytizing At Alaska Town Festival

The Center for Religious Expression last week announced the filing of a federal lawsuit in Alaska challenging a rule at the Girdwood, Alaska Forest Fair that prohibits the distribution of religious literature.  Anchorage Daily News has more on the lawsuit:

During the Forest Fair, an annual Girdwood summer festival that celebrates tie-dye, home-spun crafts and public hula-hooping, signs posted on the tall trees alert visitors to three main rules: "No dogs, no politics, no religious orders."

But one of those rules, a doctrine of the fair for more than four decades, now faces a legal challenge. Last week, two evangelical Christians, one of whom is a well-known activist, filed a lawsuit in federal court saying the ban on "religious orders" infringes on their constitutional right to free speech....

The two plaintiffs say they were told that they could not continue to proselytize and distribute literature in the park where the festival is held.  They were required to move to sidewalks outside the park to distribute their gospel tracts. [Thanks to Jeff Pasek for the lead.]

6th Circuit: Tennessee Constitutional Amendment On Abortion Was Validly Adopted

In George v. Hargett, (6th Cir., Jan. 9, 2018), the U.S. 6th Circuit Court of Appeals rejected a challenge by Tennessee voters to the method by which votes were counted in 2014 on a state constitutional amendment.  At issue was an amendment that provides in part: "Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion."  Language in the Tennessee constitution on the number of votes needed to approve a constitutional amendment is ambiguous.  However a state court had upheld the interpretation by state voting officials.  The 6th Circuit, reversing the district court, upheld the state's determination that the amendment had passed. It also concluded that the vote counting method used by the state does not violated due process or equal protection provisions of the federal Constitution.  The Tennessean reports on the decision. [Thanks to Tom Rutledge for the lead.]

Notre Dame Alums Object To University's Contraceptive Mandate Position

As previously reported, Notre Dame University is allowing its its health insurance providers to continue to furnish contraceptive coverage for university employees and students, even though Trump Administration rules now allow the university to opt out on religious grounds. Life Site News yesterday reported that 66 lawyers who are Notre Dame alumni have signed a letter (full text) to Notre Dame president Father William Jenkins strongly objecting to the University's decision. The letter objects that the university "now doing voluntarily precisely what it said it could not do in good conscience...." The letter goes on to charge that the school's assertions "now appears to be a collection of flat-out misrepresentations" in what amounts to "a pretend lawsuit."  The letter continues in part:

If, then, there is some explanation that will absolve the University from the charge of playing fast and loose with the courts or mitigate to some degree its blame, we urge you to provide it.

If there is not, then the matter seems to us to be quite serious enough to demand the attention of the Fellows and the Board of Trustees. It will be bought to their attention in due course. Remedial action should be taken, an accounting given to the Notre Dame community, and thoughtful consideration given to how amends might be made to the courts. ...

Finally, though we hope it does not come to it, Rule 11 of the Federal Rules of Civil Procedure does provide a means for federal courts to determine if there have been misrepresentations by litigants and, if so, what to do about it. A court can invoke the procedure on its own initiative. Given the wide publicity accorded the university's turnabout, Court of Appeals judges ... might think a Rule 11 hearing appropriate.

Trump Renominates Brownback for International Religious Freedom Post, Kacsmaryk For District Court

Yesterday President Trump sent a large number of renominations to the Senate, a step required after Democrats refused to consent to last Senate session's nominations rolling over into the new session.  As reported by the Kansas City Star, these included the renomination of Kansas Gov. Sam Brownback to be  Ambassador-at-Large for International Religious Freedom.

Last week, the President renominated 21 individuals for federal judgeships.  Among them is Matthew J. Kacsmaryk, nominated for Northern District of Texas.  Kacsmaryk specializes in religious liberty litigation as Deputy General Counsel at the First Liberty Institute.  Dallas Morning News reports on the renomination.

Supreme Court Refuses Review In Standing Case Challenging Mississippi's Conscience Law

The U.S. Supreme Court today denied certiorari in Barber v. Bryant, (Docket No. 17-547, cert. denied 1/8/2018) and Campaign for Southern Equality v. Bryant, (Docket No. 17-642, cert. denied 1/8/2018). (Order List.)  In the companion cases, the U.S. 5th Circuit Court of Appeals dismissed challenges to Mississippi's Conscience Protection Act for lack of standing. The law, Mississippi's HB 1523, protects against discriminatory action by state government anyone who acts in accordance with his or her religious beliefs or moral convictions that marriage is only between one man and one woman, sexual relations are reserved to such marriages, and gender is determined by anatomy and genetics at the time of birth. (See prior posting.) An en banc rehearing was denied by the 5th Circuit, over the dissent of two judges.  National Law Journal reports on the Supreme Court's action which leaves the law in effect.

Government Seeks Supreme Court Review of Third Travel Ban

The Justice Department last week filed a petition for certiorari (full text) in Trump v. State of Hawaii, a challenge to the President's third travel ban.  In the case, the U.S. 9th Circuit Court of Appeals held that the third version of President Trump's travel ban is inconsistent with the Immigration and Nationality Act. (See prior posting.)  The 9th Circuit avoided deciding the question of whether the Proclamation violates the Establishment Clause. SCOTUSblog has more on the cert. petition and the background of the case.

Recent Articles of Interest

From SSRN:

• Muhammad Munir, Fundamental Guarantees of the Rights of the Accused in Islamic Criminal Justice System, (Hamdard Islamicus, Issue no. 4 (2017)).
• John Witte, Law, Religion, and Metaphor, (in Günter Thomas and Heike Springhart, eds., Risiko und Vertrauen/Risk and Trust: Festschrift für Michael Welker zum 70. Geburtstag (Leipzig: Evangeliche Verlagsanhalt, 2017), 177-195).
• Muhidin Mulalić & Ahmed Kulanić, Religious Extremism vs. Multiculturalism in Bosnia and Herzegovina, (Poligrafi Journal, Vol. 22, No. 85-86, p. 7-29, 2017).

Recent Prisoner Free Exercise Cases

In Njie v. Yurkovich, (7th Cir., Jan. 5, 2018), the 7th Circuit vacated the district court's dismissal of a lawsuit by a Rastafarian inmate, concluding that the district court wrongly concluded that all the claims were duplicative of those in another pending lawsuit.

In Hoskins v. Spiller, 2018 U.S. Dist. LEXIS 364 (SD IL, Jan. 2, 2017), an Illinois federal district court dis missed without prejudice a Muslim inmate's complaint about religious diet and Ramadan observance. It severed and allowed plaintiff to pursue separately complaints about prayer conditions and religious diet at another institution to which he was transferred.

In LeBaron v. Massachusetts Partnership for Correctional Healthcare, 2017 U.S. Dist. LEXIS 213577 (D MA, Dec. 1, 2017), a Massachusetts federal magistrate judge recommended dismissing claims by a Messianic Jewish inmate that labeling him with a psychiatric condition and forcing him to take mental health drugs substantially burdens his free exercise of religion.

In Aguilar v. Linderman, 2018 U.S. Dist. LEXIS 954 (D AZ, Jan. 2, 2018), an Arizona federal district court allowed an inmate who is an adherent of Assembly of Yahuwah-Is to move ahead with his complaint regarding a religious diet, but dismissed claims of inadequate religious feast meals and refusal to deliver religious literature mailed to him.

In Wonsch v. Garner, 2018 U.S. Dist. LEXIS 74 (WD OK, Jan. 2, 2018), an Oklahoma federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 213803, Nov. 22, 2017) and dismissed an inmate's claim that he was denied access to clergy, and was requred to take an 8-week Bible study course to be approved for baptism.

In Townsend v. Ouellette, 2018 U.S. Dist. LEXIS 1427 (WD MI, Jan. 4, 2017), a Michigan federal district court allowed a Buddhist inmate to move ahead with his complaint that he was denied a vegan-compliant Vitamin B-12 supplement, but dismissed his complaints regarding religious oil restrictions and denial of a PSA blood test in place of a digital rectal exam that violates his religious beliefs.

In Watford v. Newbold, 2018 U.S. Dist. LEXIS 1636 (SD IL, Jan. 4, 2018), and Illinois federal district court dismissed an inmate's claim that denial of dental and medical treatment violates his religious obligation to properly care for his body.

Amish Couple Required To Connect Property To Sewer System With Electric Pump

In Yoder v. Sugar Grove Area Sewer Authority, (Commonwlth. Ct. PA, Jan. 5, 2018), a Pennsylvania state appellate court, in a 2-1 decision, upheld the denial of an injunction sought by an Old Order Amish couple who object to the requirement that they connect to the local sewer system using an electric pump.  The dispute has wound its way through the courts for over five years.  (See prior related posting.)  The majority said in part:

Owners did not establish the injunction would not harm the public, or that the harm in denying the injunction outweighed the harm in granting it. We defer to the trial court’s findings as to weighing the harms and the adverse effect of an injunction on the public health. After several years of litigation on multiple fronts, we recognize a strong interest in accomplishing the mandatory connection without further delay. Because there are apparently reasonable grounds for the trial court’s denial of preliminary injunctive relief, we affirm.

Judge McCullough dissented, relying on the state's Religious Freedom Protection Act. She argued that the trial court wrongly placed the burden on the property owners, rather than the sewer authority, to show the least restrictive means of furthering the state's interest.  She went on:

... [T]his case [should be] remanded to the trial court with the instruction to place the burden on the Authority to demonstrate the least intrusive means of non-electric connection to its sewer system. It may be that there are none and, if that is the case, then the trial court should re-open the issue of compelling Owners, against their sincerely held religious beliefs, to connect to the Authority’s sewer system. The Act requires the interest of the agency/authority to be “compelling” before it imposes a substantial burden on religious freedom. I question whether mandatory electric connection is such a compelling interest so as to countenance this infringement upon Owners’ religious freedom.

4th Circuit Strikes Down Baltimore's Posting Requirement For Pregnancy Centers

In Greater Baltimore Center for Pregnancy Concerns, Inc., v. Mayor and City Council of Baltimore, (4th Cir., Jan. 5, 2018), the U.S. 4th Circuit Court of Appeals held unconstitutional a Baltimore ordinance requiring any "limited service pregnancy center" to post a notice in its waiting room telling clients that it "does not provide or make referral for abortion or birth-control services."  Finding that the speech being regulated is neither commercial speech nor professional speech, the Court held that the ordinance violates plaintiffs' 1st Amendment rights.  The Court said in part:

The dangers of compelled speech in an area as ideologically sensitive and spiritually fraught as this one require that the government not overplay its hand. Without proving the inefficacy of less restrictive alternatives, providing concrete evidence of deception, or more precisely targeting its regulation, the City cannot prevail. The Baltimore ordinance, as applied to the Center, fails to satisfy heightened First Amendment scrutiny.

...This court has in the past struck down attempts to compel speech from abortion providers.... And today we do the same with regard to compelling speech from abortion foes. We do so in belief that earnest advocates on all sides of this issue should not be forced by the state into a corner and required essentially to renounce and forswear what they have come as a matter of deepest conviction to believe.

This is the second time that the case has made it to the 4th Circuit. (See prior posting.) The Baltimore Sun reports on the decision.

State Department Names "Countries of Particular Concern"

The State Department announced yesterday that it has redesignated ten countries as Countries of Particular Concern (CPC) under the International Religious Freedom Act. CPC's are nations guilty of the most egregious violations of religious liberty. The countries are: Burma, China, Eritrea, Iran, North Korea, Sudan, Saudi Arabia, Tajikistan, Turkmenistan, and Uzbekistan.  The Sate Department also placed Pakistan on a Special Watch List-- a new category created by 2016 amendments to the International Religious Freedom Act. This category is for countries with severe violations of religious freedom.  Last April, the U.S. Commission on International Religious Freedom had recommended six additional countries be added as CPC's. (See prior posting.)  In a Release yesterday praising the State Department's action, USCIRF urged the Department to also exercise its authority to designate non-governmental groups as "Entities of Particular Concern."

Parole Condition Barring Church Attendance Is Enjoined

In Manning v. Powers, 2017 U.S. Dist. LEXIS 213749 (CD CA, Dec. 13, 2017), a California federal district court granted a preliminary injunction banning the government from enforcing two parole conditions imposed on Sherman Manning, a Baptist minister who had served 25 years in prison for sexual assaults on teenage boys.  One of the challenged conditions prohibited Manning from entering places where children congregate.  Authorities had interpreted that to prohibit him from entering any church.  In invalidating that broad prohibition, the court said in part:

To withstand constitutional scrutiny, a prohibition that is not neutral or generally applicable must advance "only those interests of the highest order," and be narrowly tailored to serve those state interests.... That criteria is not met here. Although public safety is a compelling state interest, the court finds that a blanket restriction on Manning's churchgoing is not narrowly tailored to suit this interest. None of Manning's convictions have any connection to churches or religious activity.... Additionally, the alleged prohibition is overbroad in that it may reach even church events at which no children, or very few children, are ever present. Therefore, the court concludes that an interpretation of SCP 18 that imposes a blanket prohibition on churchgoing is likely to result in a violation of the Free Exercise Clause.

USCIRF Praises US Sanctions Against Burmese General

In a Dec. 21 press release, the U.S. Treasury Department announced the first sanctions under the Global Magnitsky Human Rights Accountability Act.  this week, the U.S. Commission on International Religious Freedom issued a press release focusing particularly on sanctions imposed on a Burmese army general for his abuses directed at Rohingya Muslims. USCIRF said in part:

USCIRF has long called for targeted sanctions against violators of religious freedom....  Tools that could be used include the Global Magnitsky Act, the Treasury Department’s “specially designated nationals” (SDN) list, and other provisions under the International Religious Freedom Act (IRFA).

Specific to Burma, USCIRF praises the inclusion of General Maung Maung Soe in the list of sanctioned individuals.  As the former head of the Burmese Army’s Western Command, he oversaw military operations in Rakhine State and myriad human rights abuses that resulted in more than 700,000 Rohingya Muslims fleeing the country since 2016.

FEMA Policy Change: Houses of Worship Now Eligible For Disaster Relief

The Federal Emergency Management Agency announced yesterday that:

private nonprofit houses of worship are now eligible for disaster assistance as community centers, without regard to their secular or religious nature.  These changes are effective for disasters declared on or after August 23, 2017 and for applications for assistance that were pending with FEMA as of August 23, 2017, including applications on first- or second-level appeal, that as of today have not yet been resolved by FEMA.

The policy change, also reflected in a new edition of FEMA's Public Assistance Program Policy Guide, reverses a long-standing policy that is currently being challenged in two separate lawsuits growing our of recent hurricane damage in Texas and Florida. (See prior posting.) Becket issued a press release calling attention to FEMA's policy change.

Bond Hearings Ordered For Detained Iraqi Immigrants

As previously reported, in July a Michigan federal district court issued a preliminary injunction preventing Iraqi nationals who are subject to long-standing deportation orders from being removed from the United States while they attempt to convince immigration courts that their return will subject them to persecution, torture and possible death.  Those affected are mostly Chaldean Christians, but some are Kurds and Sunni and Shiite Muslims.  Nevertheless, immigration officials began to arrest and detain some 300 of these Iraqis. 274 remain in custody.  Yesterday in  Hamama v. Adducci, (ED MI, Jan. 2, 2018), the same judge ordered bond hearings for those who have been detained for 6 months or more. Summarizing its more detailed holding, the court said:

Our legal tradition rejects warehousing human beings while their legal rights are being determined, without an opportunity to persuade a judge that the norm of monitored freedom should be followed.  This principle is familiar to all in the context of the criminal law, where even a heinous criminal — whether a citizen or not — enjoys the right to seek pre-trial release.  In the civil context of our case, this principle applies with at least equal force.  In either context, the principle illustrates our Nation’s historic commitment to individual human dignity — a core value that the Constitution protects by preserving liberty through the due process of law.

The court also granted in part plaintiffs' motions for nationwide class certification.  Detroit News reports on the decision.

Louisiana AG and Rep Release Pamphlet On Student Religious Rights

As reported by the New Orleans Times-Picayune, yesterday Louisiana's attorney general and one of its members of Congress released a new 15-page publication Louisiana Student Rights Review: Answers to Common Questions About Religious Freedom In Schools. The Introduction to the Q&A format pamphlet says in part:

The right to religious expression, in particular, has been increasingly challenged and misunderstood in recent years, and many people have been led to believe our elementary and secondary schools must be “religion-free” zones. To the contrary, both federal and state laws specifically protect religious freedom rights in public schools. Thankfully, Congress and our state legislature still recognize the fundamental importance of religious liberty—the first freedom listed in the Constitution’s Bill of Rights.

11th Circuit: Clergyman's Right To Retirement Benefits Was Ecclesiastical Matter

In Myhre v. Seventh-Day Adventist Church Reform Movement American Union International Missionary Society, (11th Cir., Jan 2, 2018), the U.S. 11th Circuit Court of Appeals upheld the dismissal of a suit by a retired clergyman who contended that his retirement benefits were wrongfully terminated.  Concluding that the district court lacked jurisdiction because the subject-matter of the dispute was purely ecclesiastical in nature, the appeals court said in part:

Myhre’s claims, which were predicated on his defrocking, his excommunication, and the termination of his retirement benefits due to a “theological disagreement” would have required encroachment into matters of church dogma and governance. Based on “the separation of church and state principles required by the [E]stablishment and [F]ree [E]xercise [C]lauses of the [F]irst [A]mendment,” ..., the district court could not interfere with the purely ecclesiastical decisions of the American Union regarding Myhre’s fitness to serve in the clergy or to remain a member of the denomination.

Court Refuses To Block School's Transgender Rest Room Policy

In Students & Parents for Privacy v. United States Department of Education, (ND IL, Dec. 29, 2017), an Illinois federal district court adopted a magistrate's recommendation (see prior posting)  and refused to block a school district from allowing transgender students to use the restrooms and locker rooms of the gender with which they identify. The court pointed out that a good deal of the case was mooted by developments since the magistrate's recommendation:

First, Student A graduated from Fremd High School and the Locker Room Agreement pertaining to her was accordingly terminated....] Second, the United States Department of Education Office for Civil Rights and the United States Department of Justice Civil Rights Division withdrew the administrative guidance that Plaintiffs had challenged in this action, and issued a joint guidance letter instructing that the views conveyed in the earlier materials should not be relied upon while the issue is under further consideration....

The court went on to hold:

In any event ..., the Magistrate Judge correctly determined that Plaintiffs had not shown a reasonable likelihood of success on the merits that allowing transgender students access to sex-segregated facilities based on their gender identity violates Title IX or the privacy rights of the Student Plaintiffs with whom such facilities are shared, whether such facilities are restrooms or locker rooms. 

Happy New Year 2018!

Dear Religion Clause Readers:

Happy New Year 2018! I hope you continue to find Religion Clause an important resource for news on religious liberty and church-state developments. I continue to strive for objectivity in my posts and to provide links to an abundance of primary source material underlying each post.  I am pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, clergy, governmental agency personnel, students and others working professionally dealing with church-state relations and religious liberty concerns in the U.S. and around the world.

It has been a chaotic year in which lines between law and politics, news and opinion, religion and culture have all become increasingly blurred.  In such times, access to a wide spectrum of factual information is of increased importance.

Thanks again to all of you who are loyal readers-- both those who have followed Religion Clause for years and those of you who have only recently discovered the blog.  A special thanks to readers who have quickly sent me leads on recent developments, and to those who have alerted me to mistakes. All of you have made Religion Clause the most recognized and reliable source for keeping informed on the intersection of religion with law and politics. The ABA Journal continues to include Religion Clause as one of 55 legal blogs in its Blawg 100 Hall of Fame.  I encourage you to recommend Religion Clause to colleagues, students and friends who might find it of interest.  It is accessible via Twitter and Facebook, as well as through traditional online access and RSS feeds.

I also remind you that the Religion Clause sidebar contains links to a wealth of resources.  Please e-mail me if you discover broken links or if there are other links that I should consider adding.

Best wishes for 2018!  Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions.

Howard M. Friedman

Recent Articles of Interest

From SSRN:

• Perry Dane, Establishment and Encounter, (Research Handbook on Law & Religion (Edward Elgar Publishing, Rex Ahdar, ed.) (Forthcoming)).
• John Witte & Don Browning, Emil Brunner, (in John Witte, Jr. and Gary S. Hauk, eds., Christianity and Family Law: An Introduction (Cambridge: Cambridge University Press, 2017), 307-322).
• John Witte, Foreword: What Does Christianity Offer to the World of Law?, (in Journal of Law and Religion 32 (2017): 4-8).
• John Witte & Gary S. Hauk, Editorial Introduction, (in John Witte, Jr. and Gary S. Hauk, eds., Christianity and Family Law: An Introduction (Cambridge University Press, 2017), 1-15).
• Joseph William Singer, Religious Liberty & Public Accommodation: What Would Hohfeld Say?, (in Wesley Hohfeld A Century Later: Edited Major Works, Select Personal Papers, and Original Commentaries (eds. Shyam Balganesh, Ted Sichelman, & Henry Smith (Cambridge U. Press, 2018, Forthcoming)).

From SSRN (articles on Martin Luther):

• John Witte, The Legal Turn of the Reformation, (in Luther – 95 Treasures, 95 People (Wittenberg: Stiftung Luthergedenkstätten in Sachsen-Anhalt, 2017), 451-455).
• John Witte, Martin Luther's Influence on Legal Reforms and Civil Law, (in Oxford Research Encyclopedia of Religion (March, 2017)).
• John Witte, Luther the Lawyer: the Lutheran Reformation of Law, Politics, and Society, (in Law and Justice: A Christian Law Review 178 (2017): 6-36).
• John Witte & Steven Ozment, Martin Luther, (Published in John Witte, Jr. and Gary S. Hauk, eds., Christianity and Family Law: An Introduction (Cambridge: Cambridge University Press, 2017), 195-210).

From SmartCILP:

• Andrea Pin. Arab Constitutionalism and Human Dignity, 50 George Washington International Law Review 1-67 (2017).
• Jason A. Cantone & Richard L. Wiener, Religion at Work: Evaluating Hostile Work Environment Religious Discrimination Claims, [Abstract], 23 Psychology, Public Policy & Law 351-366 (2017).
• Martha M. Ertman. We Who Believe...Cannot Rest, [Abstract], 17 University of Maryland Law Journal of Race, Religion, Gender & Class 9-14 (2017).
• Rabbi Nina Beth Cardin, Faith and Hospitality, [Abstract], 17 University of Maryland Journal of Race, Religion, Gender & Class 15-19 (2017).
• Marvin Lim, Scrutinizing Sex Under Natural Law: Unitive Sex, Self-Gratifying Sex, and Concepts of Harm, 45 Capital University Law Review 579-634 (2017).
• Eric Yordy, Clamorous Coexistence: The U.S. Commission on Civil Rights and the Internal Battle Between Religion and Nondiscrimination Laws [pdf download], 8 William & Mary Policy Rev. 51-86 (2017).

Recent Prisoner Free Exercise Cases

In Smith v. Murphy, 2017 Conn. Super. LEXIS 4974 (CT Super., Nov. 28, 2017), a Connecticut trial court dismissed an inmate's complaints that his religious oils and his gold chain and cross were placed in temporary storage; however the court allowed him to move ahead on his claim that his oils were wrongly classified as contraband.

In Kollock v. Beemer, 2017 Pa. Commw. Unpub. LEXIS 883 (NPA Commnw. Ct., Nov. 39, 2917), a Pennsylvania state appeals court rejected an inmate's claim that the sex offender treatment program required for parole forces him to admit guilt in violation of his religious convictions by forcing him to bear false witness against himself.

In Riddick v. Department of Corrections, 2017 U.S. Dist. LEXIS 211696 (WD VA, Dec. 26, 2017), a Virginia federal district court dismissed an inmate's complaints that his request for Passover participation and food were not processed, was denied the Common Fare diet, and was not permitted to celebrate both Passover and Ramadan.

In Leibelson v. Collins, 2017 U.S. Dist. LEXIS 212026 (SD WV, Dec. 27, 2017), dismissed the claim by a former inmate who is a transgender woman that her rights were infringed when she was removed from chapel which she was attending.  She attended so she could spend time with another inmate with whom she was having intimate relations.

In Orozco v. Kernan, 2017 U.S. Dist. LEXIS 212146 (ED CA, Dec. 26, 2017), a California federal magistrate judge dismissed with leave to amend a Jewish inmate's complaint that Jewish inmates are spread out among institutions so that none of the locations have ten men for a prayer minyan.

In Monroe v. Gerbing, 2017 U.S. Dist. LEXIS 212172 (SD NY, Dec. 27, 2017), a New York federal district court allowed a Muslim inmate to move ahead with his complaint that during Ramadan, his medications were delivered during fasting hours.

In United States v. Parson, 2017 U.S. Dist. LEXIS 213201 (D NE, Dec. 29, 2017), a Nebraska federal district court ordered an inmate to submit to tuberculosis testing, rejecting his claim that this impermissibly violates his religious rights.

Annual Bibliography of Law & Religion Publications Released By AALS Section

The Law and Religion Section of the Association of American Law Schools has released its annual newsletter which includes a 22-page bibliography of articles and books on Law and Religion published last year, of blogs, and of forthcoming publications by various Section members.

Lithuanian Court Invalidates Jewish Community Election

JTA reports on a  Dec. 21 decision (full text in Lithuanian) by Lithuania's Vilnius District Court invalidating an election for president of the umbrella group, Jewish Community of Lithuania ("LBZ").  The lawsuit filed by the Vilnius Jewish Community challenges a change in voting rules adopted by LBZ's board in the middle of the campaign.  The change disenfranchised 2,200 members of the Vilnius Jewish Community and resulted in the re-election of Faina Kukliansky.  LBZ had earlier attempted to invalidate an election of an opponent of Kukliansky as head of the Vilnius Jewish Community.  LBZ criticized the Vilnius election, contending that Vilnius voters were "mainly Russian speakers calling themselves Jews, with only a minority of people with Litvak blood."

Oregon Appeals Court Upholds Judgment Against Baker Who Refused Same-Sex Wedding Cake

In Klein v. Oregon Bureau of Labor and Industries, (OR App., Dec. 28, 2017), an Oregon appeals court in a 62-page opinion agreed with the state Bureau of Labor and Industries that Sweetcakes bakery violated the state's public accommodation law when it refused to design and create a wedding cake for a same-sex wedding. The court upheld $135,000 in damages that the Bureau had awarded. The court held that the bakery's refusal of service  was "on account of" the couple's sexual orientation. Rejecting plaintiffs' constitutional arguments the court said that "the final order does not impermissibly burden the Kleins' right to the free exercise of their religion because it simply requires their compliance with a neutral law of general applicability...."

Moving to plaintiffs' free expression argument, the court said in part:

Although the Kleins’ wedding cakes involve aesthetic judgments and have decorative elements, the Kleins have not demonstrated that their cakes are inherently “art,” like sculptures, paintings, musical compositions, and other works that are both intended to be and are experienced predominantly as expression. Rather, their cakes, even when custom-designed for a ceremonial occasion, are still cakes made to be eaten. Although the Kleins themselves may place more importance on the communicative aspect of one of their cakes, there is no information in this record that would permit an inference that the same is true in all cases for the Kleins’ customers and the people who attend the weddings for which the cakes are created. Moreover, to the extent that the cakes are expressive, they do not reflect only the Kleins’ expression. Rather, they are products of a collaborative process in which Melissa’s artistic execution is subservient to a customer’s wishes and preferences. For those reasons, we do not agree that the Kleins’ cakes can be understood to fundamentally and inherently embody the Kleins’ expression, for purposes of the First Amendment.

The court concluded that at most intermediate scrutiny applies and the Bureau's order survives that level.  The court however reversed the Bureau's holding that the bakery's statements about the case violated a separate provision prohibiting display of any notice that a business intends to discriminate in the future. KPTV News and The Oregonian report on the decision.

Court Dismisses Challenge To Illinois Law Allowing Medicaid Payments For Abortions

As previously reported, in a suit filed earlier this month plaintiffs challenged HB 40 which eliminates the prior ban on coverage for abortions by the state employees' insurance program and by the state's Medicaid program.  The complaint alleged that funds cannot be expended on abortions because no appropriation has been made, and challenges the effective date of the law.  The Chicago Tribune reports that yesterday state court judge Jennifer Ascher dismissed the challenge, holding that questions such as a law's effective date and whether there is an appropriation are "political questions" which courts cannot decide. Plaintiffs say they will appeal.

Suit Charges FLDS Leaders With Ritual Sex Abuse of Minors

In a lawsuit filed yesterday in Utah state court, a young woman sued the FLDS Church and various of its leaders alleging that she was a repeated victim of ritual sexual abuse when she was between the ages of 8 and 12.  The complaint (full text) in R.H. v. Jeffs, (UT Dist. Ct., filed 12/27/2017), alleges in part:

25. The practice of having sexual relations with underage girls has been consistently sustained by members of the Priesthood Work and participants in the UEP Trust since their inception....

28. The practice of having sexual relations with underage girls continued after Warren S. Jeffs assumed control of the UEP Trust and FLDS Church and after he later became the President of both entities.

29. However, a new practice of having sex and sexual relations with underage girls in the FLDS Temple and other undisclosed FLDS Church and UEP Trust owned properties with girls, ages eight (8) to 14 years old, was initiated by Warren Jeffs, along with leadership of UEP Trust and the FLD Church....

30. Plaintiff was subject to this horrific religious doctrine and religious rituals....

36. This religious ritual abuse continued on a regular basis, between five and six times a week, from the age of 8 years-old until the Plaintiff turned 12 years-old.

37. Once Plaintiff turned 14, she was required to become a witness and scribe to these religious rituals between other young girls and defendants....

Fox13 News reports on the lawsuit.

Senate Condemns Iran's Persecution of Baha'is

Last week (Dec. 21), the United States Senate passed by unanimous consent Senate Resolution 139 condemning Iran's state-sponsored persecution of it Baha'i minority and, more broadly, Iran's continuing violation of international human rights covenants.  The U.S. Baha'i Office of Public Affairs issued a press release announcing the Senate's action and setting out additional background.

FLDS Members Quietly Regaining Their Homes

The Salt Lake Tribune yesterday reported that after 12 years of litigation and impasses, a number of members of the polygamous FLDS Church are quietly working out arrangements with the United Effort Plan trust that will allow them to remain in their homes in Colorado City, Arizona. Most of the UEP properties in the adjoining town of Hilldale, Utah have already been sold off. Up to now, many FLDS members, on religious grounds, had refused to cooperate with the court-ordered restructuring of the Trust.

Court May Not Automatically Defer To Religious Objections Of One Parent In Deciding Child's Best Interest

In Arcella v. Arcella, (NV Sup. Ct., Dec. 26, 2017), the Nevada Supreme Court held that a trial court was wrong in the manner it resolved a dispute between divorced parents over the middle school their child should attend. the father wanted the child to attend a private Lutheran school, but the mother objected to the child's receiving a religious education.  The court, relying solely on the mother's religious objections, decided that the child should attend a public school.  In reversing, the state Supreme Court said in part:

When a district court decides a child's best interest, "[t]he First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." ... The district court violates this principle of neutrality when it treats one parent's religious objection as dispositive when deciding between a religious school and a nonreligious school....

In sum, a district court does not violate the First or Fourteenth Amendments by ordering a child to attend a religious school over a parent's religious objection. Indeed, the district court must order a child to attend the religious school if attendance at that school accords with the child's best interests.

Las Vegas Review Journal reports on the decision.

Court Tells South Korea To Halt Publicizing Personal Information On Conscientious Objectors

The Hankyoreh yesterday reports that South Korea's Military Manpower Administration is publishing the personal information of religious conscientious objectors on its website. The paper says:

Since last year, the Military Service Act has mandated that a registry be kept identifying those who refuse to report for service without a legitimate reason. But critics have pointed out that presenting those who refuse to serve because of their pacifism or religious beliefs as if they were deliberate draft dodgers subjects them to double punishment....

When the MMA published the personal information of conscientious objectors on its website in Dec. 2016, 105 individuals filed a lawsuit with the Seoul Administrative Court asking for the publication decision to be reversed and another lawsuit asking for a stay of execution on the publication until the court made its decision in the first case. In May, the ... Seoul Administrative Court ... ruled that the publication of their personal information should be halted until the final legal decision, citing “concerns that irreparable damages could be incurred.”

Despite the stay of execution ordered by the court, the MMA included conscientious objectors among the draft dodgers whose personal information was published once again this year. In response, 252 individuals filed the same lawsuit once again..... On Dec. 19, ... the Seoul Administrative Court... once again ruled that the publication of the plaintiffs’ personal information should be halted until the court makes its ruling.

8th Circuit Rejects Trooper's Challenge to Required Ride-Along With Chaplain

In Steckelberg v. Rice, (8th Cir., Dec. 26, 2017), the U.S. 8th Circuit Court of Appeals affirmed the district court's dismissal of a suit by a Nebraska State Trooper alleging various complaints about his treatment in connection with his application for a promotion and for a transfer and in handling grievances he filed. One of plaintiff's complaints, focused on during oral argument in the 8th Circuit, was that as part of his required performance improvement plan, he was required to ride along with the State Patrol chaplain, a Catholic priest, for a shift.  The 8th Circuit apparently agreed with the district court's rejection of the argument that this amounted to government coerced proselytization. The Lincoln Journal Star, reporting on the decision, says that a petition for en banc review is likely to be filed.

Top Church-State and Religious Liberty Developments of 2017

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year-- including developments internationally in the mix.  Usually I select the top ten, but this year I have expanded it to 11. The selection obviously involves a good deal of subjective judgment, and I welcome e-mail comment from those who disagree with my choices.  So here are my Top Eleven picks for the rather chaotic year that is currently coming to an end:

1.  President Trump issues and reissues restrictions on immigration and entry of refugees which are challenged in the courts as "Muslim bans."

2. Supreme Court's Trinity Lutheran Church decision opens the possibility of expanded governmental aid to religious institutions.

3. Christian Evangelicals remain core supporters of Donald Trump.

4. Trump Administration expands religious and moral exemptions from ACA contraceptive coverage mandate; court challenges filed.

5. The Masterpiece Cakeshop case attracts over 90 amicus briefs as it is argued before the Supreme Court.  The Christian baker's refusal to create a wedding cake for a same-sex couple becomes a symbol of the cultural clash between ideals of religious freedom and equality, even though arguments focus on free speech issues.

6. Congress fails to repeal the Johnson Amendment, despite promises by President Trump.

7. Transgender discrimination and transgender service in the military remain high profile religious and cultural issues in the courts and in the political arena.

8. The Alt-Right march in Charlottesville reveals resurgence of traditional forms of  anti-Semitism.

9. Supreme Court's decision in Advocate Health Care Network v. Stapleton saves retirement plans of religiously affiliated health care networks from unanticipated and costly ERISA coverage.

10. In Israel, government's suspension of an agreement with Judaism's Reform and Conservative movements to construct a separate prayer space at the Western Wall for egalitarian prayer opens a rift with a large segment of the American Jewish community.

11. India's Supreme Court invalidates Triple Talaq marriage for Muslims in India.

For top picks by other observers of the legal and religious scene, see Don Byrd's Top Ten Religious Liberty Stories, and  Religion News Association's Top 10 Religion Stories of the Year Poll.

Recent Articles of Interest

From SSRN:

• Effie Fokas, Kokkinakis at the Grassroots Level, (Religion and Human Rights 12 (2017) 210-222).
• Effie Fokas, The European Court of Human Rights at the Grassroots Level: Who Knows What About Religion at the ECtHR and to What Effects?, (Religion, State and Society, 2017, 45 (3-4)).
• Martha Albertson Fineman & Silas W. Allard, Vulnerability, the Responsive State, and the Role of Religion, (In Exploring Vulnerability, H. Springhart and G. Thomas (eds.), Vandenhoeck & Ruprecht 2017).
• Deborah A. Widiss, Intimate Liberties and Antidiscrimination Law, (Boston University Law Review, Vol. 97, 2017).
• Prakash Shah, Orientalism, Multiculturalism, and Identity Politics: Hindus and the British Caste Law, (Forthcoming in Quaderni di Diritto e Politica Ecclesiastica (special issue: Daimon. Diritto comparato delle religioni) 2017).
• Jim Nicholls, Taken - An Islamic Inspired Collaboration to Facilitate the Freedom of People Taken Hostage Because of Their Nationality, Race or Beliefs, (December 12, 2017).

Mormon Student Loses Religious Harassment Claim Against College Tennis Coach

In Duffin v. Idaho State University, (D ID, Dec. 21, 2017), an Idaho federal district court dismissed on qualified immunity grounds religious discrimination and other constitutional claims by a Mormon college student who alleges that the head tennis coach and his assistant harassed plaintiff about his religion. The court added:

Defendants were clearly harassing Duffin about his religion, and trying to test his adherence to his beliefs – especially when they invited him to a night club and sent women to his hotel room to proposition him for sex. Such actions were boorish and entirely inappropriate. In doing so, they likely intended to discourage Duffin from practicing his religion and following the tenets of his faith, by presenting him with opportunities to act contrary to his religious beliefs. But, their actions do not rise to the level of coercion or substantial pressure to modify Duffin’s behavior, which is needed to establish a free exercise of religion claim.

The court asserted supplemental jurisdiction over plaintiff's state law claims.  In connection with plaintiff's negligence claim, the court certified a question of law to the Idaho Supreme Court.  The court dismissed plaintiff's intentional infliction of emotional distress claim and denied summary judgment on his claim for negligent infliction of emotional distress.

World Leaders Send Christmas Greetings

President Donald Trump tweeted last night:

People are proud to be saying Merry Christmas again. I am proud to have led the charge against the assault of our cherished and beautiful phrase. MERRY CHRISTMAS!!!!!

[UPDATE:This morning President Trump and the First Lady issued more traditional Christmas greetings via Twitter.]

According  to The Hill, Israeli Prime Minister Benjamin Netanyahu issued similar Christmas greetings:

"I'm very proud to be the prime minister of Israel, a country that says 'Merry Christmas' first to its Christian citizens and to our Christian friends around the world," Netanyahu said in a video posted to Twitter.

Other world leaders used similar phraseology without making an issue of it.  Here are the greetings from Canada's Prime Minister Justin Trudeau .  British Prime Minister Theresa May's Christmas message carried a broader theme:

Let us take pride in our Christian heritage and the confidence it gives us to ensure that in Britain you can practice your faith free from question or fear.

Let us remember those around the world today who have been denied those freedoms – from Christians in some parts of the Middle East to the sickening persecution of the Rohingya Muslims.

And let us reaffirm our determination to stand up for the freedom of people of all religions to speak about and practice their beliefs in peace and safety.

So this Christmas, whatever our faith, let us come together confident and united in the values we share. And wherever you are at this special time of year, let me wish you all a very Happy Christmas.