Recent Articles of Interest

From SSRN:

• Josef Hien & Christian Joerges, Dead Man Walking: Current European Interest in the Ordoliberal Tradition, (EUI Department of Law Research Paper No. 2018/03 (2018)).
• Robert T. Miller, What is a Compelling Governmental Interest?, (Journal of Morality and Markets, (Forthcoming)).
• Ira C. Lupu & Robert W. Tuttle, #Metoo Meets the Ministerial Exception: Sexual Harassment Claims by Clergy and the First Amendment's Religion Clauses, (William & Mary Journal of Race, Gender, and Social Justice (2019 Forthcoming)).
• Melissa Crouch, Constitutionalism, Religion and Inequality: Perspectives from Asia, (Asian Journal of Comparative Law, Forthcoming).
• Susanna Mancini & Kristina Stoeckl, Transatlantic Conversations The Emergence of Society-Protective Antiabortion Arguments in the United States, Europe, and Russia, (S. Mancini, M. Rosenfeld, The Conscience Wars. Rethinking the Balance between Religion, Identity, and Equality, Cambridge University Press, 2018).
• Earl M. Maltz, The Constitution and the Trump Travel Ban, (Lewis & Clark Law Review, Forthcoming).
• Grant Christensen, A View from American Courts: The Year in Indian Law 2017, (Seattle University Law Review, Vol. 41, 2018).
• Sharon Cruz, The Search for Third Options in a Two-Bathroom Society, (1 International Comparative, Policy & Ethics Law Review 77 (2018)).
• Mohamed A. Arafa, Islam and Elder Care in Egypt after the Arab Spring Uprisings: Between Divine Law and Secular Law: Quo Vadis?, (CALUMET: Intercultural L. & Humanities Rev. [Law & Religion] (Online Fall 2017)).

From SmartCILP:

• Elizabeth B. Ludwin King, Transitional Justice and the Legacy of Child Sexual Abuse in the Catholic Church, 81 Albany Law Review 121-143 (2017/2018).
• A. Reid Monroe-Sheridan, "Frankly Unthinkable": The Constitutional Failings of President Trump's Proposed Muslim Registry, 70 Maine Law Review 1-34 (2017).
• Waseem Ahmad Qureshi, Can the Burning of Holy Books Ever Be Justified?, 24 Washington & Lee Journal of Civil Rights & Social Justice 63-102 (2017).

Recent Prisoner Free Exercise Cases

In Clark v. Daddysman, 2018 U.S. Dist. LEXIS 47976 (D MD, March 22, 2018), a Maryland federal district court dismissed an inmate's complaint that his kufi was wrongfully seized.

In Reynolds v. Beasley, 2018 U.S. Dist. LEXIS 48189 (SD MS, March 23, 2018), a Mississippi federal magistrate judge dismissed an inmate's complaint that he was not permitted to attend a Jum'ah service.

In Lanahan v. Taller, 2018 U.S. Dist. LEXIS 48669 (D MD, March 23, 2018), a Maryland federal district court dismissed a complaint by an involuntarily committed psychiatric patient that he was not permitted to go outside to conduct Native American religious ceremonies.

In Browning v. Pszczolkowski, 2018 U.S. Dist. LEXIS 49313 (ND WV, March 26, 2018), a West Virginia federal magistrate judge dismissed for failure to exhaust administrative remedies an Orthodox Jewish inmate's complaint regarding interference with various religious practices-- religious holidays, food, religious correspondence course, receipt of tefillin.

In Becker v. Carney, 2018 U.S. Dist. LEXIS 49590 (WD WA, March 26, 2018), a Washington federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 49708, Feb. 20, 2018) and dismissed a Muslim inmate's complaint that he was unable to obtain a religious diet that also met his therapeutic dietary needs. UPDATE: The dismissal was affirmed at Becker v. Carney (9th Cir., March 19, 2019).

White House Easter-Passover Greetings and Events

The White House today released a YouTube video of President Trump's Message for Passover and Easter. In a press release today the White House also summarized the events that will be part of the annual White House Easter Egg Roll, hosted by First Lady Melania Trump on April 2.  The event will be live streamed on the WH Info website.

Ireland Referendum Set on Constitutional Amendment Allowing Abortion

On Wednesday, Ireland's Minister for Housing, Planning and Local Government announced that he had set May 25 as the date for a referendum on a proposed amendment to Ireland's Constitution.  The amendment (full text) will allow Ireland's Parliament (Oireachtis) to enact laws permitting abortion.  Currently Ireland's Constitution (Art. 40, Sec. 3, Subsection 3) guarantees the "right to life of the unborn" (with due regard to the equal right to life of the mother). CNN reports on developments. [Thanks to Scott Mange for the lead.]

Rabbi Has RLUIPA "Substantial Burden" Claim Standing

Congregation ARIEL Russian Community Synagogue, Inc. v. Baltimore County, (D MD, March 28, 2018), is a challenge to a zoning denial of a synagogue's plans to build a new synagogue building on property it has purchased and to use an existing house on the property as a parsonage for its rabbi.  The denial was challenged on various constitutional and statutory grounds, including under RLUIPA.  Defendants raised numerous procedural objections, including a claim that the congregation's rabbi lacks standing as a plaintiff in the lawsuit.  The court concluded that the rabbi has standing to bring a RLUIPA substantial burden challenge, saying in part:

Plaintiffs argue that Maryland recognizes oral lease agreements, and the Court ... can infer that there is an oral lease agreement between ARIEL and Rabbi Belinsky. As a result, Plaintiffs maintain that Rabbi Belinsky has a property interest in the Property. The Court agrees.

However the court held that the rabbi does not have standing to bring RLUIPA non-discrimination and equal terms claims because those provisions apply only to a religious "assembly or institution."

Unordained Music Minister May Claim NJ Parsonage Exemption

In Clover Hill Reformed Church v. Township of Hillsborough, (NJ Tax Ct., March 23, 2018), the New Jersey Tax court held that, even though he is not ordained, a church's Minister of Music qualifies as an "officiating clergyman" so that he may claim the parsonage exemption from state property tax for the home furnished to him by the church. The court said in part:

Where adherents to a faith have a sincerely held belief that a person is a leader in providing worship services to a congregation, and that belief is corroborated by objective evidence of that person's training, experience, and responsibilities, the courts should hesitate to discount those beliefs because of the absence of an act, such as ordination, the court believes is necessary to impart the status of clergyman. It is not for the judiciary to impose on a religious congregation its view of who is or is not a clergyman in that congregation. The court's only role is to determine whether the legislative objectives expressed in the exemption statute have been met. 

President and Governors Honored Lubavitch Rebbe With Education Day Proclamations

Chabad.org reports that on March 27, President Donald Trump met in the Oval Office with a delegation of Chabad-Lubavitch rabbis to issue a Presidential Proclamation (full text) declaring the day "Education and Sharing Day."  This follows the tradition of every president since 1978 of issuing a similar proclamation to mark the birthday on the Jewish calendar of Chabad's former leader, Rabbi Menachem Schneerson.  This year for the first time, similar proclamations have been issued by the governors of all 50 states.

Establishment Clause Challenge To Rainbow Flags Is Dismissed

In Sevier v. Lowenthal, (D DC, March 26, 2018), the District of Columbia federal district court dismissed a suit which sought to require four members of the U.S. House of Representatives to remove Gay Pride Rainbow Colored Flags that they have placed in the hallways outside their offices.  The suit, filed by a vocal opponent of the Supreme Court's same-sex marriage decision, contends that display of these flags violates the Establishment Clause, as well as the equal protection and due process clauses.  As related by the court:

In Sevier’s view ... the gay pride flag “is a ‘religious symbol’ for the homosexual denomination,” ... and its “placement ... amounts to [Defendants’] endorsement of a particular religion.... Sevier’s “sex-based self-asserted identity narrative is that he prefers to be married to an inanimate object.” ... So, according to Sevier, unless Defendants “install a flag that represents people who self-identify as polygamists, machinists, zoophiles, and heterosexuals,”... their actions “treat ... the homosexual denomination of ... the church of moral relativism with disproportionate favor”....

Rejecting plaintiff's assertions, the court said that plaintiff's claims are premised on his argument that homosexuality is a religion, but he has offered "no legal support" for the argument. The court continued:

To be sure, the governing case law does not precisely define the contours of what constitutes “religion.”... But that does not mean there are no easy cases.... Whatever else religion might entail, it at minimum requires adherence to one or more fundamental beliefs.... “Homosexuality,” by contrast, is not a set of beliefs at all. It is a description of a person’s sexual orientation.... The gay rights movement bears no trappings of “religion” as that concept is widely understood, and Sevier has not plausibly alleged that a reasonable person would perceive the display of the rainbow flags as religious in nature.

Long Beach Post reports on the decision.

India Supreme Court Orders Protection For Inter-Religious Marriages

In Vahini v. Union of India, (India Sup. Ct., March 27, 2018), a 3-judge panel of the India Supreme Court in a 54-page opinion ordered India's central government and its state governments to take various measures to prevent assemblies of Khap Panchayats -- community assemblies that decide to take steps to prevent inter-caste or inter-religious marriages through violence or honor killing. The court ordered state governments to identify areas where honor killings or Khap Pahchayats have been reported in the last 5 years, and take special steps in those areas.  Authorities are to warn against action when they receive a tip.  The court went on:

Despite taking such measures, if the meeting is conducted, the Deputy Superintendent of Police shall personally remain present during the meeting and impress upon the assembly that no decision can be taken to cause any harm to the couple or the family members of the couple, failing which each one participating in the meeting besides the organisers would be personally liable for criminal prosecution. He shall also ensure that video recording of the discussion and participation of the members of the assembly is done on the basis of which the law enforcing machinery can resort to suitable action....

Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that the Khap Panchayat has taken place and it has passed any diktat to take action against a couple/family of an inter-caste or inter-religious marriage (or any other marriage which does not meet their acceptance), the jurisdictional police official shall cause to immediately lodge an F.I.R. under the appropriate provisions of the Indian Penal Code....

Additionally, immediate steps should be taken to provide security to the couple/family and, if necessary, to remove them to a safe house within the same district or elsewhere keeping in mind their safety and threat perception.

India Today reports on the decision.

Church's Challenge To Zoning Denial Is Rejected

In Jesus Christ Is the Answer Ministries, Inc. v. Baltimore County, (D MD, March 27, 2018), a Maryland federal district court dismissed RLUIPA and constitutional challenges by a church to a county's refusal to grant it a zoning variance so it could convert a home it purchased into a house of worship.  The court, in its 35-page opinion, said in part:

Plaintiffs have not plausibly pled a substantial burden claim because the record shows that Reverend Ware did not have a reasonable expectation when she bought the Property that it could be used for the Church.

Plaintiff's discrimination claim focused on the fact that the church's members were African immigrants and on objections to the nature of its ministry.  The court said in part:

Plaintiffs have not alleged facts supporting an inference that the Board acted with intentional or purposeful discrimination.

Permanent Injunction Issued In Contraceptive Mandate Case

In Sharpe Holdings v. United States Department of Health & Human Services, 2018 U.S. Dist. LEXIS 51158 (ED MO, March 28, 2018), the complex current status of the Obama Administration's Affordable Care Act Contraceptive Mandate rules led a Missouri federal magistrate judge to grant a declaratory judgment and permanent injunction to two religious organizations that object to those rules.  The Trump Administration had issued broader exemptions that covered plaintiffs, and at that point the government moved to dismiss the case as moot.  However in December 2017, Pennsylvania and California federal district courts entered nationwide preliminary injunctions against enforcement of the Trump Administration's broader exemptions. (See prior postings 1, 2). Thus the Obama Administration rules were again in effect.  This led the court in yesterday's opinion to hold:

in light of the Eighth Circuit's prior reasoning on plaintiffs' RFRA challenge to the accommodation process, and particularly given that the government no longer advances a substantive defense thereof, this Court holds that plaintiffs have attained actual success on the merits and are entitled to a permanent injunction.

DC Circuit Hears Oral Arguments In Bus Ad Case

On Monday, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments (audio of full arguments) in Archdiocese of Washington v. Washington Area Metropolitan Transit Authority.  In the case, 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." (see prior posting).

Puerto Rico Supreme Court Stays Seizure of Catholic Church Assets In Teacher Pension Dispute

AP reports that Puerto Rico's Supreme Court yesterday temporarily stayed a ruling entered earlier in the day by a trial court judge against the Catholic Archdiocese of San Juan. At issue is a lawsuit by Catholic school teachers seeking to preserve $4.7 million in pensions owed to them.  In 2016, the Archdiocese canceled pensions for current and former teachers because payouts exceeded contributions. The pension plan, created in 1979, did not require contributions by the teachers. Nearly half of the 80 schools operating in 1979 have now closed. The lower court had ordered seizure of any money or property owned by the Church in Puerto Rico to satisfy the pension liabilities. [Thanks to Scott Mange for the lead.]

Pro-Life Supporters Model Protest After Parkland School Walkouts

The pro-life movement has announced plans to piggyback on the student anti-gun violence walkouts that took place in schools around the country after the Parkland, Florida shooting.  Pro-life high school students are planning a similar 17-minute walkout from classes on April 11. As reported by Lifesite News, the idea originated with Rocklin, California high school student Brandon Gillespie after his history teacher was suspended for questioning the anti-gun violence walkout and commenting that the walkout would likely not have been tolerated if it was to protest abortion.  Sponsors of the pro-life march have tied it to the Parkland demonstrations by saying it will "test if there’s a double standard from school administration when it comes to allowing students to protest against destroyers of life and the tools they use."  Yesterday the Thomas More Law Center issued a press release stating that it will provide legal guidance to students planning the walkout, adding:

With the pro-life walk out, Gillespie seeks to answer the question of whether “Not One More” applies to all children, regardless of their age or birth status.

Britain's Court of Appeals Rules Against Gay Priest's Employment Discrimination Claim

In Pemberton v Inwood, (EWCA , March 22, 2018), the England and Wales Court of Appeal ruled against Jeremy Pemberton, a gay Church of England priest who was prevented from taking a position as a hospital chaplain when he married his same-sex partner.  Pemberton sued claiming employment discrimination and harassment. Lady Justice Asplin's opinion held that the action taken against Pemberton falls within a statutory exception from the Equality Act's discrimination provisions for religious organizations that impose various requirements regarding marriage and sexual orientation.  Rejecting Pemberton's harassment claim, Justice Asplin said in part:

If you belong to an institution with known, and lawful, rules, it implies no violation of dignity, and is not cause for reasonable offence, that those rules should be applied to you, however wrong you may believe them to be. Not all opposition of interests is hostile or offensive.

 The Guardian reports on the court's decision. (See prior related posting.)

Cult Leader Sentenced To 99 Years In Starvation Death of Young Boy

Dallas Morning News reports that a Texas jury last Friday sentenced 52-year old Aracely Meza-- the religious leader of a church known as Iglesia Internacional Jesus es el Rey-- to 99 years in prison and a $10,000 fine in the 2015 starvation death of a 2-year old boy.  Meza had ordered food to be withheld from the boy in order to exorcise the demon of manipulation that she believed possessed him.  The boy and his family lived on a commune run by Meza, who claims to be a prophet. When the boy died, his parents were afraid to report the death to police because they were undocumented aliens from Mexico.  With Meza, they took the boy for burial back to Mexico, where the parents remain.

Vermont Legislators Join Fight Against Mormon Utopian Village Plans

The NewVistas Foundation is a non-profit organization promoting the building of model communities based on writings of Mormon prophet Joseph Smith.  NewVistas wealthy founder David Hall is buying up land in Provo, Utah and near Joseph Smith's birthplace in Vermont to create two of these villages. As reported in 2016 by Bloomberg Businessweek :

Hall is a fourth-generation Mormon. “Joseph Smith was just the wildest guy out there,” he says. “Lots of things he did were stupid, but in my view, he was a sage or a seer and didn’t even understand what came to him.” As the story goes, the plat plan appeared to Smith while he was studying Enoch, an Old Testament prophet who designed a city so perfect it was whisked off to heaven. The text accompanying the blueprint, written out by Smith and his comrades, says each plat should house 15,000 to 20,000 people within one square mile (though the definition of a mile has changed slightly), and that the design should be replicated worldwide. Written in the style of 15th century English, it reads: “When this square is thus laid off and supplied, lay off another in the same way, and so fill up the world in these last days, and let every man live in the city, for this is the city of Zion.”

These plans have stirred opposition, and in Vermont (as reported this week by AP) a resolution opposing the planned village has been introduced in the Vermont House of Representatives.  HR 20 (full text) introduced March 21 with 12 co-sponsors, says in part:

the NewVistas project would destroy the traditional and compacts settlement pattern in the four towns, convert large amounts of productive agricultural lands and forestland into development, undermine the historic character of these towns, degrade the area’s natural resources, and reduce game and wildlife populations.

Faith Healing Parents Convicted In Daughter's Death

AP reports that in Reading, Pennsylvania, Jonathan and Grace Foster were convicted of involuntary manslaughter and child endangerment in the death of their 2-year old daughter.  The Fosters are members of Faith Tabernacle Congregation which teaches that doctors and pharmaceuticals should be avoided.  Their daughter died of pneumonia after the couple failed to seek medical treatment for the girl whose cold symptoms turned severe.

Israeli Court Says Jews Have Right To Pray At Temple Mount Gates

Arutz Sheva and Jerusalem Post report that in Israel yesterday, a Jerusalem Magistrate's Court has ruled that police acted improperly in attempting to prevent three 14-year old Jewish girls from praying at the Bab al-Huttah gate to the Temple Mount in the Old City of Jerusalem.  Police contended that the girls were attempting to create a provocation since they timed their prayers to coincide with the end of Muslim prayers on the Temple Mount.  The girls had undertaken similar activity before and were issued restraining orders by the police.  The court held that the girls have the same right as Muslims to pray at that location, saying in part:

[I]t is the right of every person to pray in the State of Israel on the streets of a city, provided this does not violate the rights of others.... The police representative's argument that throwing of objects would have resulted from the young women's presence is unacceptable to me, as I wouldn't have accepted the claim that a man with a wallet full of cash walking in a neighborhood where many pickpockets live violates public safety and invites offenses.

Recent Articles and Books of Interest

From SSRN:

• Christian Burset, Why Didn't the Common Law Follow the Flag?, (Virginia Law Review, 2019, Forthcoming).
• Loren Mulraine, Religious Freedom: The Original Civil Liberty, (Howard Law Journal, Vol. 61, No. 1, 2017).
• Ryan T. Anderson, Shields, Not Swords, (National Affairs, Number 35, Spring 2018).
• Linda C. McClain, The Rhetoric of Bigotry and Conscience in Battles Over 'Religious Liberty v. LGBT Rights', (Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William S. Eskridge, Jr. & Robin Fretwell Wilson, eds., Cambridge University Press, Forthcoming).
• Kate Bezanson, Reconciling Rights in Tension: Freedom of Religion and Equality in Trinity Western University, (December 20, 2017).
• Paul M. Secunda, Foreword: Wedding Cakes, Religion, and Sexual Orientation Discrimination, (19 Marquette Benefits & Social Welfare L. Rev. (forthcoming 2018)).
• Jaclyn L. Neo, Definitional Questions: A Critique of the Definition of Religion and Essential Practice Tests to Allocate Constitutional Protection, (International Journal of Constitutional Law, Forthcoming).
• Arif A. Jamal, Authority and Plurality in Muslim Legal Traditions: The Case of Ismaili Law, (American Journal of Comparative Law, Forthcoming).

Recent Books:

• Niels Valdemar Vinding, Exploring the Multitude of Muslims in Europe, (Brill, March 12, 2018).
• Christopher McCrudden, Litigating Religions: An Essay on Human Rights, Courts, and Beliefs, (Oxford Univ. Press, March 25, 2018).
• Khaled A. Beydoun, American Islamophobia: Understanding the Roots and Rise of Fear, (Univ. California Press, April 2018).

European Court Upholds Germany's Removal of Children From Religious Sect Parents

Last week in the cases of Tlapak and Others v. Germany and Wetjen and Others v. Germany, (ECHR, March 22, 2018), the European Court of Human Rights in Chamber Judgments upheld the action of a German Family Court against claims by four families asserting their Article 8 Convention right to respect for private and family life.  A press release from the European Court described last week's decisions:

The cases concerned the partial withdrawal of parental authority and the taking into care of children belonging to the Twelve Tribes Church (Zwölf Stämme), living in two communities in Bavaria (Germany). In 2012 the press reported that church members punished their children by caning. The reports were subsequently corroborated by video footage of caning filmed with a hidden camera in one of the communities. Based on these press reports, as well as statements by former members of the church, the children living in the communities were taken into care in September 2013 by court order. The proceedings before the European Court have been brought by four families who are members of the Twelve Tribes Church. They complain about the German courts’ partial withdrawal of their parental authority and the splitting up of their families.

The Court agreed with the German courts that the risk of systematic and regular caning of children justified withdrawing parts of the parents’ authority and taking the children into care. Their decisions had been based on a risk of inhuman or degrading treatment, which is prohibited in absolute terms under the European Convention.

Chamber judgments may be appealed to the Grand Chamber.

Recent Prisoner Free Exercise Cases

In Furr v. Kelley, 2018 U.S. Dist. LEXIS 43468 (ED AR, March 16, 2018), an Arkansas federal magistrate judge recommended dismissing claims by a Native American inmate that he was denied various ceremonial objects and a religious adviser.

In Burley v. Abdellatif, 2018 U.S. Dist. LEXIS 44187 (ED MI, March 19, 2018), a Michigan federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 44390, Jan. 26, 2018) and dismissed a number of claims but allowed an inmate to move ahead with his claim that the prison physician violated his 1st Amendment protection against retaliation by refusing to treat him because he is Jewish.

In Maye v. Klee, 2018 U.S. Dist. LEXIS 44188 (ED MI, March 19, 2018), a Michigan federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 44618, Jan.24, 2018) and granted a Nation of Islam inmate summary judgment on his complaint that the prison chaplain did not permit him to participate in Eid al-Fitr celebrations. He was allowed to move ahead with a free exercise claim against one other defendant.  Supplemental briefing was ordered on the issue of damages.

In Le Bourgeois v. Wolf, 2018 U.S. Dist. LEXIS 44990 (ED WI, March 19, 2018), a Wisconsin federal district court dismissed an inmate's complaint that his religious book was seized and destroyed. He was allowed to move ahead with various other claims.

In Goff v. Todd, 2018 U.S. Dist. LEXIS 46294 (ED LA, March 21, 2018), a Louisiana federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 47329, Feb. 27, 2018) and in a suit by a Muslim inmate ordered that defendants file further pleadings explaining the prison policy that prevents plaintiff from wearing kufi caps.

In Adams-Bey v. Rogers, 2018 U.S. Dist. LEXIS 46307 (WD NC, March 21, 2018), a North Carolina federal district court dismissed (unless an amended complaint is filed) a suit by an inmate claiming that he was discriminated against and insulted based on his Moorish-American religion, that his religious material was confiscated and his religion was classified as a security threat group.

In Booker v. Engelke, 2018 U.S. Dist. LEXIS 46918 (WD VA, March 22, 2018), a Virginia federal district court allowed a Nation of Islam inmate to proceed with his complaint that his free exercise rights are infringed by limits on his access to the common fare diet, the content of that diet, the requirement that he eat his meals very quickly, and his inability to observe Eid-ul-Adha.

In Cary v. Mox, 2018 U.S. Dist. LEXIS 47078 (ED MI, March 22, 2018), a Michigan federal district court adopted in part a magistrate's recommendations (2018 U.S. Dist. LEXIS 48417, Feb. 8, 2018) and denied a preliminary injunction sought by an inmate who is a member of the Native American Traditional Way. Plaintiff asked for a ban on prison authorities physically touching medicine bags and herbs as part of a rewrite of procedures for searching these items.

In Maciejka v. Williams, 2018 U.S. Dist. LEXIS 47474 (SD FL, March 21, 2018), a Florida federal magistrate judge recommended that a former inmate who is Catholic be allowed to proceed on a claim for nominal damages.  Plaintiff alleged that while in prison he was unable to attend group worship, celebrate certain religious holidays, obtain spiritual advice, keep religious materials and publications, or obtain religious property such as a Rosary and Scapular.

In Rivera v. Davey, 2018 U.S. Dist. LEXIS 47691 (ED CA, March 21, 2018), a California federal magistrate judge recommended dismissing a Jewish inmate's claim that he was denied the facility chapel to practice obligatory prayers and holy day events.

New White House Memorandum On Military Service By Transgender Persons

Yesterday the White House released a Memorandum from the President on Military Service By Transgender Individuals (full text). Implementing February 2018 recommendations and a related report (full text) from the Secretary of Defense, the memo replaces an earlier Presidential Memorandum and authorizes the military services to implement the Defense Department's recommendations.  Those recommendations preclude most new enlistments by transgender individuals. They allow enlistment by transgender persons only if they have not been diagnosed with gender dysphoria, or if previously diagnosed with gender dysphoria they have been stable for 36 months in their biological sex.  Those who require or have undergone gender transition are disqualified.  The Hill reports on the new Memorandum.

All of this may l\have little immediate effect.  Vanity Fair reports:

It is possible that the ban will never actually be put in place: while the Trump administration is framing the order as “a new policy developed through extensive study by senior uniformed and civilian leaders,” it is substantively the same as the previous Trump policy, which is currently facing multiple lawsuits on constitutional grounds. Four federal courts have issued injunctions in cases filed by civil rights groups, and may ultimately end up before the Supreme Court. The Pentagon said Friday that it will continue to abide by Obama-era policies welcoming transgender troops while those legal battles continue.

Alabama Legislature Approves Ballot Issue On Ten Commandments

The Alabama legislature yesterday approved S 181 (full text), submitting a proposed state constitutional amendment to the voters. The operative provisions of the proposed amendment read:

Every person shall be at liberty to worship God according to the dictates of his or her own conscience. No person shall be compelled to attend, or, against his or her consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes, or other rates for the support of any minister of the gospel. Property belonging to the state may be used to display the Ten Commandments, and the right of a public school and public body to display the Ten Commandments on property owned or administrated by a public school or public body in this state is not restrained or abridged. The civil and political rights, privileges, and capacities of no person shall be diminished or enlarged on account of his or her religious belief. No public funds may be expended in defense of the constitutionality of this amendment.

The Ten Commandments shall be displayed in a manner that complies with constitutional requirements, including, but not limited to, being intermingled with historical or educational items, or both, in a larger display within or on property owned or administrated by a public school or public body.

The inclusion of the ban on using public funds to defend the constitutionality of the amendment is apparently a response to criticism from opponents that the amendment will merely invite costly lawsuits. (See AP report on the passage of the bill.)  Also, apparently the amendment is not intended to repeal the somewhat overlapping provisions of the existing Sections 3 , 3.01 (Amendment 622) and 263 of the state constitution. [Thanks to Tom Rutledge for the lead.]

4 Nations Sign Statement On Combating Online Hate Speech

On Tuesday, the Justice Ministers of Greece, Malta, Italy and Israel at the 6th Global Forum for Combating Antisemitism, held in Jerusalem, signed a Joint Statement on Countering Online Hate Speech and Incitement to Violence and Terrorism (full text [scroll down in article]). Among other things, the statement urged Internet companies to adopt a clear and transparent industry standard for identifying hate speech.  It went on to encourage Internet companies to take action against hate speech publications and to remove them from their online platforms.

Rabbi Defends Against Zoning Charges Citing Religious Obligation of Hospitality

Savannah Morning News yesterday reported on litigation pending in a Georgia state trial court charging violation of local zoning laws.  Last December, City of Savannah attorneys filed suit against Rabbi Arnold Belzer and his wife for renting out their home as a short-term vacation rental.  Apparently the rental was advertised through Air BNB. Rabbi Belzer argues that fines or an injunction would impose a substantial burden on their free exercise rights.  Their pleadings assert:

As devout people of faith, Rabbi and Mrs. (Arlene) Belzer have a sincerely held religious belief in the Jewish practice of hospitality.  They consider the practice of hospitality to be a religious obligation found in Jewish scripture and tradition.

7th Circuit: School's Christmas Pageant Does Not Violate Establishment Clause

In Freedom From Religion Foundation v. Concord Community Schools, (7th Cir., March 21, 2018), the U.S. 7th Circuit Court of Appeals held that a revised version of an annual Christmas Spectacular put on by an Elkhart, Indiana high school does not violate the Establishment Clause.  The court describes the revised pageant's challenged second half:

the show spends about four and a half minutes each explaining and performing a song to represent Hanukkah and another for Kwanzaa. Images are projected onto large screens to accompany both songs. For the remaining 20 minutes, students perform numerous Christmas songs that are more religious in nature (e.g., “Jesus, Jesus, Rest Your Head,” “O Holy Night”). During one of the songs, a nativity scene appears on stage for two minutes. The manger uses mannequins, not student actors. There are no New Testament readings.

The court explained its conclusion as follows, in part:

It is worth emphasizing that no one factor alone—the secular first half, the nativity’s lack of prominence, the inclusion of other holidays—leads us to conclude that the 2015 Spectacular passes muster under the endorsement test. Overall, the 2015 performance in its current form would not cause a reasonable observer to believe that Concord is signing off on a particular religious message....

Although the matter is not open‐and‐shut, we see no reason to reverse the district court’s conclusion on summary judgment that the 2015 show did not pressure individuals to support any religious beliefs.

Education Week reports on the decision.

Abortion Protester Cleared of Disorderly Conduct Charge

A trial court judge in Huntsville, Alabama last week found 66-year old Alison Harris not guilty of disorderly conduct. (Docket sheet).  According to a press release from the Thomas More Society:

Harris, a frequent sidewalk counselor at the Alabama Women’s Center for Reproductive Alternatives, was arrested on May 26, 2017, on the public walkway in front of the abortion clinic as she prayed and tried to persuade parents to choose life for their preborn children. The arresting officer had obtained a warrant at the request of a clinic employee for Harris’ use of a megaphone fourteen days earlier. The megaphone had been repeatedly tested by city police to ensure that it was below the decibel limit allowed by the Huntsville City ordinance.

Megaphones are used by sidewalk counselors at the Huntsville abortion clinic, where, alongside a four-lane highway, abortion escorts use cow bells, car horns, and loud-speakers to drown out the pro-life messages.

Omnibus Spending Bill Does Not Contain Johnson Amendment Repeal

Several non-profit organizations have noted that the 2,232-page version of the omnibus Consolidated Appropriations Act, 2018 (full text) made public yesterday does not contain a repeal of the Johnson Amendment. A press release from the National Council of Nonprofits says in part:

Public trust is essential for charitable nonprofits, houses of worship, and foundations to do their work – and keeping the Johnson Amendment in place allows the public to continue trusting that our organizations can focus on our missions without being torn apart by divisive partisan politics.

A Baptist Joint Committee press release expresses similar sentiments, saying in part:

Those who depend on houses of worship and community nonprofits can breathe a sigh of relief, as concerted efforts to weaken the longstanding law that keeps the 501(c)(3) sector free from partisan campaigning were rebuked yet again. 

Some hoped they could slip a bad policy change into must-pass legislation, but advocates for keeping nonprofits nonpartisan spoke up and prevailed.

Navy Again Rejects Application To Become Secular Humanist Chaplain

Washington Examiner yesterday reported that for a second time the U.S. Navy has rejected the application of Jason Heap to become the Navy's first Secular Humanist chaplain. His application was first rejected in 2014 (see prior related posting), but more recently the Navy chaplain advisory board recommended approval. However 45 House members and 22 Senators wrote the Navy opposing approval.  Senator Richard Wicker, chairman of the Senate Armed Services Committee, applauded the Navy's rejection of Heap's application, saying:

The appointment of an atheist to an undeniably religious position is fundamentally incompatible with atheism’s secularism. This decision preserves the distinct religious role that our chaplains carry out.

Scottish Court Convicts For Anti-Semitic YouTube Video

The Jewish Chronicle reports that a Sheriff's Court in Airdrie, Scotland yesterday found 30-year old Mark Meechan guilty of a hate crime for a YouTube posting that went viral. The video featured a dog owned by Meechan's girlfriend.  Meechan had trained the dog to give a Nazi salute when Meechan said "sieg heil" or "gas the Jews."  Meechan, who has apologized, says the video was his attempt to annoy his girl friend:

My girlfriend is always ranting and raving about how cute and adorable her wee dog is, so I thought I would turn him into the least cute thing I could think of, which is a Nazi.

The Sheriff's Court judge however ruled:

The accused knew that the material was offensive and knew why it was offensive. He would have known it was grossly offensive to many Jewish people.

Sentencing in the case is scheduled for April 23.

Recent Prisoner Free Exercise Cases

In Quiero v. Muniz, 2018 U.S. Dist. LEXIS 41981 (MD PA, March 13, 2018), a Pennsylvania federal magistrate judge recommended dismissing a Christian inmate's complaint that while in restricted housing unit for ten days, he was denied access to Bible study and church services and could not meet one-on-one with chapel staff.

In Shields v. Kahn, 2018 U.S. Dist. LEXIS 42194 (SD CA, March 14, 2018), a California federal district court allowed a Muslim inmate to move ahead on his complaint that he was denied participation in Ramadan meals.  He seeks to have the Muslim chaplain rather than other inmates control Islamic services.

In Gonzalez v. Morris, 2018 U.S. Dist. LEXIS 42534 (ND NY, March 15, 2018), a New York federal district court allowed an inmate who is a practitioner of Santeria to move ahead with his complaint that his equal protection rights were infringed when he was denied matches or a lighter to burn offerings. Various other claims were dismissed.

In McCoy v. Aramark Correctional Services, 2018 U.S. Dist. LEXIS 43301 (D KA, March 16, 2018), a Kansas federal district court allowed an Orthodox Jewish inmate to move ahead with claims that the meals served to him as kosher were not prepared and served in conformity with Jewish dietary laws.

In Doyle v. United States, 2018 U.S. Dist. LEXIS 43388 (ED KY, March 16, 2018), a Kentucky federal district court allowed a Muslim inmate to move ahead with his complaint that inmates can pray only in groups of two or three.  Various other claims were dismissed.

Transcript Of Supreme Court Arguments In California FACT Act Case Is Now Available

The full transcript of today' oral arguments (see prior posting) in National Institute of Family and Life Advocates v. Becerra is now available. Reporting on the arguments, Politico said in part:

A surprisingly broad array of justices expressed serious concerns that the Reproductive FACT Act intrudes on First Amendment rights, by requiring such centers to include in their ads a state-provided notice in as many as 13 languages offering contact information about abortion services and other options.

Mississippi Governor Signs Ban on Abortions After 15 Weeks; Court Challenge Filed

Mississippi Governor Phil Bryant yesterday signed into law HB 1510, the Gestational Age Act (full text) (bill status history). It prohibits abortions after 15 weeks of gestation except in the case of medical emergency or severe fetal abnormality. There are no exceptions for rape or incest. Violations of the ban are defined as unprofessional conduct by a physician and may lead to suspension or revocation of the person's license to practice medicine. New York Times reports that the only abortion clinic in Mississippi quickly filed a complaint (full text) (press release) in Mississippi federal district court challenging the constitutionality of the law.

UPDATE: On March 20, a Mississippi federal district court granted a temporary restraining order against enforcement of the new law. (AP)

Supreme Court Will Hear Arguments Today In California FACT Act Challenge

The U.S. Supreme Court will hear oral arguments today in National Institute of Family and Life Advocates v. Becerra. In the case, the U.S. 9th Circuit Court of Appeals upheld  California's FACT Act which requires licensed pregnancy counseling clinics to disseminate a notice on the existence of publicly-funded family planning services, including contraception and abortion.  Unlicensed clinics must disseminate a notice that they and their personnel are unlicensed. (See prior posting.) The Supreme Court granted certiorari only on the free speech issues in the case, excluding review of the free exercise question. (See prior posting.)  SCOTUSblog's case page has links to all the briefs filed in the case, as well as to further analysis.

Indian State Moves To Grant Minority Religion Status To Lingayats

In the Indian state of Karnataka, the cabinet (on the recommendation of the State Minorities Commission)  has voted to grant the status of a separate religious minority to Lingayats, instead of treating them as a Hindu sect.  More controversially, the cabinet also voted to include Veerashaivas as part of the same community.  Lingayats, and Veerashaivas constitute 17% of the state's population.  India West and The Mirror report that the move is seen as an attempt by the ruling Congress party to attract the sect's votes away from the Hindu nationalist Bharatiya Janata Party in the state assembly elections that will be held in April and May. The cabinet recommendation now goes to the central government for approval under §2(c) of the Central Minority Commission Act.

Suit Alleges Religious Discrimination In Flag Mix-Up

ACLU of Kansas announced yesterday that it has filed a religious and ethnic discrimination lawsuit on behalf of an employee of Spirit AeroSystems against a recreational organization open to Spirit employees.  The organization owns a recreational lake in Wichita, Kansas that can be rented by the organization's members. The complaint (full text) in Zanial v. Spirit Boeing Employees' Association, (D KA, filed 3/19/2018) alleges:

11. On September 2, 2017, Mr. Zanial rented space at the SBEA recreation lake to host a party celebrating the end of Ramadan. The party was attended by approximately 45 guests, the majority of whom were of Malaysian Indian ancestry. Several of Plaintiff’s female guests, including his wife, were wearing hijabs. 

12. Because the party took place shortly after the 60th Anniversary of Malaysian Independence Day, Mr. Zanial’s guest, Nik Azri brought a Malaysian flag to the party. Mr. Zanial and his guests took turns posing with the flag.

This led to a complaint being filed:

Following the party, SBEA reported Mr. Zanial to the Spirit Aerosystems (“Spirit”) security team based on a concern that Mr. Zanial was affiliated with radical Islamic terrorism and alleged that he had used the SBEA lake to hold an ISIS meeting. SBEA alleged that Mr. Zanial and his guests had an American flag that had been “desecrated by ISIS insignia” and were wearing “Muslim garb.” SBEA restricted Mr. Zanial’s membership so he could no longer rent property to host events at the lake.

Proposed Knesset Bill Would Extend Israeli Rabbinical Court Jurisdiction Extraterritorially

JTA reports on an interesting family law bill that passed the first of three readings in Israel's Knesset earlier this month.  Jewish religious law, enforced in personal status matters in Israel by the country's Rabbinical courts, requires that a husband give his wife a "get" (bill of divorce)  in order for a divorce to be valid.  Under current law, Israel's Rabbinical courts can impose penalties, including fines and jail, to pressure an Israeli husband to give  his wife a "get." The proposed new legislation would extend jurisdiction of Israeli Rabbinical courts extraterritorially to any Jewish man who is unjustly withholding a "get."  Israeli courts could then fine or imprison the husband if he travels to Israel.  According to Pinchas Goldschmidt, president of the Conference of European Rabbis:

Today among Jews in Europe, everyone has relatives in Israel, or they’re thinking they might be moving there or forced to move there.  So this threat of a problem may make a lot of reluctant husbands free their wives.

Recent Articles of Interest

From SSRN:

• Ryan T. Anderson, Disagreement is Not Always Discrimination: On Masterpiece Cakeshop and the Analogy to Interracial Marriage, (Georgetown Journal of Law & Public Policy, Vol. 16, No. 1, 2018).
• Lee J. Strang, The Original Meaning of 'Religion' in the First Amendment: A Test Case of Originalism's Utilization of Corpus Linguistics, (Brigham Young University Law Review, Vol. 2017).
• Kathleen Brady, Religious Accommodations and Third-Party Harms: Constitutional Values and Limits, (106 Kentucky Law Journal, Issue No. 4, Forthcoming).
• James A. Davids, Religious Colleges' Employment Rights Under the 'Ministerial Exception' and When Disciplining an Employee for Sexually Related Conduct, (Texas Review of Law & Politics, Vol. 21, No. 3 (2018).
• Mark Storslee, Religious Accommodation, the Establishment Clause, and Third-Party Harm, (March 8, 2018).
• Timothy Zick, Introduction to The Dynamic Free Speech Clause: Free Speech and Its Relation to Other Constitutional Rights, (Oxford Univ. Press, 2018).
• Michael J. Higdon, Biological Citizenship and the Children of Same-Sex Marriage, (March 11, 2018).
• Hiroshi Fukurai & Alice Yang Murray, The History of Japanese Racism, Japanese American Redress, and the Dangers Associated With Government Regulation of Hate Speech, (Hastings Constitutional Law Quarterly, Vol. 45, 2018).
• Joel S. Newman, Conspicuous Philanthropy: A Response, (American University Law Review Forum, Vol. 67, No. 1, 2018).

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

• M.C. Mirow, Léon Duguit, (In Olivier Descamps and Rafael Domingo, Great Christian Jurists in French History (Cambridge University Press, 2019) (Forthcoming)).
• Neil James Foster, Protection of Religious Freedom under Australia’s Amended Marriage Law: Constitutional and Other Issues, (Freedom of Religion or Belief: Creating the Constitutional Space for Other Fundamental Freedoms: 14th – 16th February 2018).
• Sheida Banasaznavaei, A Study on the Temporary Marriage Contract in Iranian Law — Are Women Safe in Temporary Marriage Contracts?, (January 5, 2018).

Recent Prisoner Free Exercise Cases

In Ralston v. Cannon, (10th Cir., March 13, 2018), the 10th Circuit held it could not review in an interlocutory appeal on qualified immunity the district court's conclusion that there was sufficient evidence to allow a reasonable juror to find that defendant intentionally interfered with plaintiff's right to free exercise by denying his kosher diet request.

In Roberts v. Perry, 2018 U.S. Dist. LEXIS 39596 (WD NC, March 9, 2018), a North Carolina federal district court dismissed with leave to amend an inmate's complaint that he was prevented from enrolling in the Messianic Faith Group to begin a weekly educational class, and that his mail (including religious correspondence and books from unauthorized sources) was stopped and another book was seized as contraband.

In Ward v. Rice, 2018 U.S. Dist. LEXIS 39884 (WD AR, March 12, 2018), an Arkansas federal district court allowed a Muslim inmate to move ahead with his complaint that prison policy bars the use of prayer rugs without alternatives being provided.  The court dismissed claims regarding the inmate's food tray and temporary denial of his Quran.

In Crowe v. Marquis, 2018 U.S. Dist. LEXIS 40062 (ND OH, March 12, 2018), an Ohio federal district court dismissed a Native American inmate's complaint that his prayer pipe was lost or stolen and that he was misinformed that prison policy would allow his family to send him tobacco.

In Venkataram v. Bureau of Prisons, 2018 U.S. Dist. LEXIS 39504 (SD FL, March 9, 2018), a Florida federal district court adopted in part a magistrate's recommendation (2018 U.S. Dist. LEXIS 40075, Jan. 16, 2018) and dismissed an inmate's attempt to obtain a vegetarian diet that complies with Hindu religious requirements.

In Ali v. Eckstein, 2018 U.S. Dist. LEXIS 40878 (ED WI, March 13, 2018), a Wisconsin federal district court permitted a Muslim inmate to move ahead with his claim for nominal and punitive damages against one defendant growing out of the omission of plaintiff from the list to participate in the Ramadan meal bag program.

In Jones v. Finco, 2018 U.S. Dist. LEXIS 41191 (WD MI, March 13, 2018), a Michigan federal district court, adopting a magistrate's recommendation, dismissed a Muslim inmate's complaint about the food served to him during Ramadan.

In Mares v. LePage, 2018 U.S. Dist. LEXIS 41907 (D CO, March 13, 2018), a Colorado federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 140796, Aug. 31, 2017) and dismissed an inmate's complaint regarding impediments to changing his religious designation to Judaism, receiving kosher meals, a personal Torah and a visiting rabbi.

In Sangraal v. Godinez, 2018 U.S. Dist. LEXIS 41952 (SD IL, March 13, 2018), an Illinois federal district court awarded $1 nominal damages to a former inmate who followed pagan beliefs who challenged prisons' banning the pentacle, limiting the use of tarot cards, requiring additional screening of pagan literature, and subjecting him to religious messages in the chapel.

NYPD Sued Over Mugshot Policy For Muslim Women

AP reported yesterday on a lawsuit filed in federal district court in New York against the New York Police Department by two Muslim women who were forced to remove their hijabs to pose for mugshots.  While the NYPD says that its policy allows persons wearing religious head coverings to be taken to  a separate more private facility before removing the head covering to be photographed, apparently that policy was not followed in the case of the plaintiffs in this lawsuit. The women along with the advocacy group Turning Point for Women and Families brought the lawsuit as a class action. [Thanks to Tom Rutledge for the lead.]

Judge Suspended, In Part For Refusal To Conduct Same-Sex Weddings

In In re Day, (OR Sup. Ct., March 15, 2018), the Oregon Supreme Court in a 91-page opinion suspended state circuit court judge Vance D. Day from his judicial office for three years without pay. The state's Commission on Judicial Fitness and Disability had recommended the harsher penalty of removal from office. (Commission report).  A number of unrelated charges were involved; the court concluded that six of the counts had been proven.  One of those was described as follows by the court in its press release on the case:

Count 12 concerned a change in respondent's chambers relating to marriage requests that he received after issuance of a federal court ruling, in May 2014, that had invalidated Oregon's constitutional ban on same-sex marriage. Before that ruling, respondent had made himself available to solemnize marriages. After that ruling, he told his staff that, upon receiving any marriage request, they should check for any personal gender information available in the court's case register system, to try to determine whether the request involved a same-sex couple. If so, they should tell the couple that he was not available on the requested date or otherwise notify him so that he could decide how to proceed. If the request were from an opposite-sex couple, however, then they should schedule the wedding date.  Respondent's judicial assistant checked the system one time and determined that a requesting couple might be a same-sex couple, but respondent had an actual scheduling conflict, so she truthfully told the couple that he was not available.  Several weeks after that, respondent stopped solemnizing all marriages. The Court concluded that respondent's conduct had been willful and had violated Rule 3.3(B) (prohibiting manifestation of bias or prejudice in the performance of judicial duties) and related constitutional provisions. The Court did not address a number of constitutional challenges that respondent had raised as affirmative defenses to Count 12. It explained that, in light of the other, notably serious misconduct that the commission had proved by clear and convincing evidence, the misconduct at issue under Count 12 would not affect its consideration of the appropriate sanction, regardless of whether those constitutional challenges were meritorious or not.

Progressive Secular Humanist blog reports on the decision.

No Bivens Claim For Interference With Religious Exercise In Puerto Rican Forest

In Twum-Baah v. U.S. Department of Agriculture, (D PR, March 12, 2018), a Puerto Rico federal district court dismissed Federal Tort Claims Act, free exercise and racial/ ethnic discrimination claims by a representative of the Waroyal Ministry who took his congregation to the El Yunque National Forest as part of their worship. He also started a tour company that offered tours in El Yunque. Federal officials assert that plaintiff needs a special use authorization for his activities. The court said in part:

A liberal reading of plaintiff’s amended complaint suggests Twum-Baah claims officers Verdejo, Ortiz, and Henderon violated his First Amendment rights to freely exercise his religion and to peaceably assemble with the Excursionist Association for El Yunque. ... Nonetheless, the Court’s understanding of Bivens and subsequent decisions by the Supreme Court compels it to find Bivens claims are not available for violations of the First Amendment’s Free Exercise clause.

Suit Over News Photo of Arabic-Speaking School Child May Continue

In Mahdy v. Mason City School District, (SD OH, March 15, 2018), an Ohio federal district court refused to dismiss equal protection and false-light claims growing out of the use of a photo of a 5-year old (identified as J.M.) to illustrate a newspaper story criticizing a rise in the number of Arabic-speaking students in the Mason City, Ohio schools.  The student was the daughter of an Egyptian-born urologist at the University of Cincinnati. The article reported that most of the Arabic-speaking students were from Saudi Arabia on temporary visas to be treated at Cincinnati Children’s Hospital Medical Center, and that their enrollment placed strains on the school system's budget. The court describes plaintiff's claims:

The Complaint alleges that neither Dr. Mahdy nor his wife gave permission to anyone to photograph J.M., to disclose her identity to the public, or to falsely associate her with the Children’s Hospital Destination Excellence Program.... The Complaint alleges that J.M. had to be removed from MECC due to the "wave of Islamophobia that is currently sweeping across our country," and because her family was "so distressed over the prejudice and discriminatory treatment expressed against Arabic-speaking students."

Ohio's Law Banning Abortion Because of Down's Syndrome Is Enjoined

In Preterm-Cleveland v. Himes, (SD OH, March 14, 2018), an Ohio federal district court granted a preliminary injunction against enforcement of Ohio's recently enacted ban on a physician performing an abortion if the woman's decision is based in whole or part on a pre-natal indication of Down's syndrome.The court said in part:

The State argues that Roe and Casey do not apply for two reasons. First, the State argues the “Supreme Court of the United States has never recognized a right to abort an unborn child on the basis of a disability.” ... The State suggests that Roe and Casey only apply to women who accidentally become pregnant.... The State argues that women only have the right to choose whether to have a child, not the right to decide whether to have a particular child....

This argument is not well-taken. The interest protected by the Due Process Clause is a woman’s right to choose to terminate her pregnancy pre-viability, and that right is categorical.

Reacting to the decision, Ohio Attorney General Mike DeWine said:

 I strongly disagree with the district court's ruling that there is a categorical right to abortion that prevents even any consideration of Ohio's profound interests in combatting discrimination against a class of human beings based upon disability. We will be appealing.

Jurist reports on the decision.

Suit By "Clock Boy" Is Dismissed

In Mohamed v. Irving Independent School District, (ND TYX, March 13, 2018), a Texas federal district court dismissed a number of claims brought on behalf of the so-called "clock boy"-- a 14-year old African-American Muslim student who was suspended from school and arrested on "hoax bomb" charges when he brought an alarm clock he had constructed to school.  The complaint charged in part that the school district "has an 'ugly history of race struggles,' and the State of Texas and the IISD have a 'history of discrimination against Muslims in Texas curriculum and schools.'"  The court concluded that the complaint:

does not contain sufficient factual allegations from which the court can reasonably infer that A.M. was subject to unequal disciplinary treatment based on his religion or race....

Daily Caller reports on the decision.

Pakistani Court Says Citizens Must Declare Religion For Identity Documents

Christian Times reports on a decision last week from the Islamabad High Court in Pakistan.  The court ruled that all citizens must declare their religion when they apply for identity documents.  Human rights advocates say this will increase pressure on the Ahmadis who under Pakistani law are not allowed to refer to themselves as Muslims.  A spokesman for the Ministry of Religious Affairs and Interfaith Harmony, however, said the requirement will help religious minorities secure the 5% quota in government jobs to which they are entitled.

Massachusetts Lacks Standing To Challenge Expanded Contraceptive Mandate Exemptions

In Commonwealth of Massachusetts v. U.S. Department of Health & Human Services, (D MA, March 12, 2018), a Massachusetts federal district court held that the state of Massachusetts lacks standing to challenge recently adopted Interim Federal Rules expanding religious and moral exemptions from the Affordable Care Act's contraceptive coverage mandate. The court concluded that the state had "failed to set forth specific facts demonstrating that it is likely to incur an injury" from adoption of the rules. MassLive reports on the decision.

Montana's Anti-Polygamy Laws Upheld

In Collier v. Fox, (D MT, March 9, 2018), a Montana federal district court adopted a magistrate's recommendations and dismissed a challenge to Montana's civil and criminal anti-polygamy laws. When the state denied Nathan Collier a marriage license to marry a second wife, he nevertheless entered a relationship with her and they hold themselves out as being married. The magistrate's Feb. 22 opinion (full text) dismisses the challenge to the state's criminal anti-polygamy provisions because there is no genuine threat that the parties challenging the law will be prosecuted, saying:

The State Defendants have taken the position that Nathan’s and Christine’s declaration to be husband and wife, without the accompanying possession of a state-issued marriage license, is insufficient to violate the Montana bigamy statutes. Therefore, this case presents the unusual situation where the State of Montana has taken the position that the Colliers’ conduct is not criminal, while the Colliers insist that it is.

Plaintiffs also challenge the state's refusal to issue a marriage license for Collier's marriage to his second wife.  The court held that the state's anti-polygamy law is constitutional, relying on the U.S. Supreme Court's 1878 decision in Reynolds v. United States. Billings Gazette reports on the decision.

Church's Suit Challenging California Health Insurance Rules Dismissed As Not Ripe

In Skyline Wesleyan Church v. California Department of Managed Health Care, (SD CA, March 9, 2018), a California federal district court dismissed on ripeness and standing grounds a suit by a church challenging California insurance rules on the coverage of abortion services by health policies.  The church objected to providing its employees with policies that covered abortions.  Initially state regulators required all policies to contain such coverage, but subsequently said they would grant exemptions for policies offered exclusively to religious employers.  The court said in part:

At this point in time it cannot be said that the DMHC would deny a health care plan’s request to offer the exemption sought by Plaintiff because no such plan has been submitted. Thus, the existence of a controversy depends on a factual scenario that may or may not materialize, making this case unfit for review.

11th Circuit: Employer Offered Reasonable Accommodation

In Patterson v. Walgreen Co., (11th Cir., March 9, 2018), the U.S. 11th Circuit Court of Appeals, in a suit alleging religious discrimination and retaliation, held that Walgreens had offered reasonable accommodations for the religious needs of a Seventh Day Adventist employee whose beliefs did not permit him to work on Saturday. The employee, a training instructor, was fired in the aftermath of his refusal to conduct an emergency training session on a Saturday.  The court said in part:

To comply with Title VII, an employer is not required to offer a choice of several accommodations or to prove that the employee’s proposed accommodation would pose an undue hardship; instead, the employer must show only “that the employee was offered a reasonable accommodation, ‘regardless of whether that accommodation is one which the employee suggested.’” ...

Walgreens decided to terminate his employment only after he failed to conduct the emergency training session, insisted that Walgreens guarantee that he would never have to work on his Sabbath, and refused to consider other employment options within the company without such a guarantee.

[Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:

• Micah Schwartzman, Nelson Tebbe & Richard Schragger, The Costs of Conscience, (Virginia Public Law and Legal Theory Research Paper No. 2018-14 (March 2018)).
• Donald Carroll, A Groundless Clash of Freedoms?: The Religious Freedom of the Religiously Affiliated University and the Freedom of Faculty to Organize Under the NLRA, (March 2018).
• John D. Inazu, The Purpose (and Limits) of the University, (Utah Law Review, 2018 Forthcoming).
• Joseph E. David, 'Others-in-Law': Legalism in the Economy of Religious Differences, (Law, Culture and the Humanities, Forthcoming).
• Timothy Lubin, Towards a South Asian Diplomatics: Cosmopolitan Norms and Regional Idioms in the Use of Documents, (Studies in Historical Documents from Nepal and India, edited by Simon Cubelic, Axel Michaels, and Astrid Zotter. Heidelberg University Publishing / Kathmandu: National Archives, Nepal, 2018, pp. 37–84).
• Avishalom Westreich, Accommodating Religious Law with a Civil Legal System: Lessons from the Jewish Law Experience in Financial Family Matters, (Journal of Law and Religion, Vol. 33, 2018).
• Benito Arruñada & Matthias Krapf, Religion and the European Union, (Pompeu Fabra University, Economics and Business Working paper Series, 1601 (2018).
• Marc D. Froese, Universal Economy: Reconsidering the Role of Ideas in the Multilateral Governance of Global Trade, (March 9, 2018).
• Rory K. Little, Hating Hate Speech: Why Current First Amendment Doctrine Does Not Condemn a Careful Ban, (Hastings Constitutional Law Quarterly, Vol. 45, No. 3, 2018).
• Oonagh B. Breen, Redefining the Measure of Success: A Historical and Comparative Look at Charity Regulation, (Forthcoming in Matthew Harding (ed.), The Research Handbook on Not-for-Profit Law (Edward Elgar, 2018).

From SmartCILP:

• Donohon Abdugafurova, Rahimjon Abdugafurov & Beverly Moran, Islamic Feminism and Invisible Work: The Case of the Disappearing Daughter-in-Law, [Abstract], 19 Georgetown Journal of Gender & Law 43-60 (2017).
• Marc-Tizoc Gonzalez, Criminalizing Charity: Can First Amendment Free Exercise of Religion, RFRA, and RLUIPA Protect People Who Share Food in Public?, 7 UC Irvine Law Review 291-345 (2017).

Recent Prisoner Free Exercise Cases

In Hardy v. Agee, 2018 U.S. App. LEXIS 5648 (6th Cir., March 5, 2018), the 6th Circuit reversed the district court's dismissal for failure to exhaust administrative remedies of a suit by a Muslim inmate claiming that while on room restriction he was prevented from attending religious services and classes.

In England v. Walsh, (9th Cir., March 9, 2018), the 9th Circuit upheld dismissal of claims regarding failure to list Nation of Islam in the Nevada Department of Corrections Religious Practice Manual, and furnishing an inmate a vegetarian diet to meet NOI dietary requirements.

In Ackbar v. Byers, 2018 U.S. Dist. LEXIS 36006 (D SC, March 5, 2018), a South Carolina federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 37278, Jan. 22, 2018) and dismissed a complaint by an inmate that his Nation of Gods and Earths material was confiscated.

In Duncan v. Lay, 2018 U.S. Dist. LEXIS 35213 (ED AR, March 5, 2018), an Arkansas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 36288, Feb. 14, 2018) and allowed an inmate to move ahead with his complaint that he has been denied access to the chapel library.

In Broyles v. Presley, 2018 U.S. Dist. LEXIS 36190 (D KA, March 6, 2018), a Kansas federal district court dismissed a suit alleging lack of kosher food brought by an inmate who says he practices the Jewish faith, Yahweh Assembly in Yahshua.

In Goddard v. Alexakos, 2018 U.S. Dist. LEXIS 36322 (ED KY, March 6, 2018), a Kentucky federal district court dismissed an inmate's complaint that the federal medical center at which he was confined only offered a general Christian religious service and would not provide a separate service for "The Way" (a non-Protestant Christian religion).

In Carawan v. Mitchell, 2018 U.S. Dist. LEXIS 36897 (WD NC, March 6, 2018), a North Carolina federal district court dismissed a Muslim inmate's complaint that the prison had discontinued the Zakat fund through which inmates could fulfill their religious obligation to give charity.

In Trainauskas v. Fralicker, 2018 U.S. Dist. LEXIS 37408 (SD IL, March 7, 2018), an Illinois federal district court allowed an inmate to move ahead with his complaint regarding disciplinary sanction related to letters he wrote about an Odinist religion known as The Guardians of Othala Kindred.

In Walker v. Harris, 2018 U.S. Dist. LEXIS 37693 (MD GA, March 8, 2018), a Georgia federal district court adopted most of a magistrate's recommendation (2018 U.S. Dist. LEXIS 38118, Feb. 9, 2018) and allowed a Muslim inmate to proceed with an excessive force claim, but not a free exercise or RLUIPA claim, regarding action against him for tucking his pants legs in his socks.

In Dawson v. Wagatsuma, 2018 U.S. Dist. LEXIS 39037 (D HI, March 9, 2018), a Hawaii federal district court dismissed an inmate's claim that he was required to denounce his Native Hawaiian Religion in order to participate in the prison's Module Contract Program.

Michigan Supreme Court Refuses To Reverse Injunction Against Private School Aid

In Council of Organizations and Others for Education About Parochiaid v. State of Michigan,  (MI Sup. Ct., March 9, 2018), the Michigan Supreme Court in a brief order denied leave to appeal a preliminary injunction issued by the Court of Claims.  That injunction prohibited payment of $2.5 million the legislature had allocated to private schools to cover the cost of complying with state mandates. (See prior posting.)  Chief Justice Markham filed a dissenting opinion arguing that the decision of the Court of Claims should be reversed.

Massachusetts Supreme Court Rules On Renovation Grants To Church

Caplan v. Town of Acton, (MA Sup Jud Ct, March 9, 2018), is a challenge under the Massachusetts' constitution's"anti-aid" clause to two historic-resource grants for renovation purposes to an active church.  The Massachusetts Supreme Judicial Court, in a 5-1 opinion, concluded:

the constitutionality of such grants must be evaluated under our three-factor test: a judge must consider whether a motivating purpose of each grant is to aid the church, whether the grant will have the effect of substantially aiding the church, and whether the grant avoids the risks of the political and economic abuses that prompted the passage of the anti-aid amendment. We also conclude that, in light of the history of the anti-aid amendment, a grant of public funds to an active church warrants careful scrutiny.... 

[W]e conclude that the plaintiffs are likely to succeed on the merits of their claim with respect to the stained glass grant. Although the record before us does not allow us to ascertain whether there is a motivating purpose behind this grant other than historic preservation, its effect is to substantially aid the church in its essential function and, given the explicit religious imagery of the stained glass, it fails to avoid the very risks that the framers of the anti-aid amendment hoped to avoid....

With respect to the Master Plan grant, we conclude that further discovery is needed before a determination should be made as to whether the plaintiffs are likely to succeed on the merits of their claim.  This is in part because, unlike the stained glass grant, the Master Plan grant is far broader in its scope, including not only plans for the renovation of worship space but also plans for the renovation of the Fletcher and Hosmer Houses, which are both private residences....

Justice Kafker, joined by Justice Gaziono filed a concurring opinion.  Justice Cypher filed a dissenting opinion. MassLive reports on the decision.

Rwandan Government Closes Over 700 Churches

RNS reports that on Tuesday, the government of Rwanda shut down 714 of the more than 1300 churches in the country's capital city of Kigali.  The Rwanda Governance Board says that the closings were the result of building safety, hygiene and noise violations.  Most of the churches affected were small Pentecostal congregations that have multiplied in recent years.  Hygiene problems are common because Kigali does not have a sewage system or treatment plant.  Critics however say that the closures are an attempt by President Paul Kagame to suppress criticism. A Rwandan activist based in Canada said: "The churches constituted the last open space. Kagame knows this. The localized community of churches offered a slight space for daring to imagine and talk about change."

Hospital Can Assert Ministerial Exception Defense To Suit By Chaplain

In Penn v. New York Methodist Hospital, (2d Cir., March 7, 2018), the U.S. 2nd Circuit Court of Appeals in a 2-1 decision held that a hospital "only historically connected to the United Methodist Church but still providing religious services through its pastoral care department" may invoke the ministerial exception doctrine.  The court summarized its majority opinion:

Mr. Penn—a former duty chaplain at New York Methodist Hospital—brought a lawsuit alleging that New York Methodist Hospital and Peter Poulos discriminated against him on the basis of his race and religion, and retaliated against him after he filed charges with the U.S. Equal Employment Opportunity Commission and the New York City Commission on Human Rights. New York Methodist Hospital, because of its history and continuing purpose, through its Department of Pastoral Care, is a “religious group.” Mr. Penn’s role within the Department of Pastoral Care was to provide religious care to the hospital’s patients and religious care only. Therefore, the First Amendment’s Religion Clauses warrant the application of the ministerial exception doctrine and the dismissal of this lawsuit.

Judge Droney dissented, saying in part:

The presence of a non‐sectarian chaplaincy department cannot transform an otherwise secular hospital into a religious institution for purposes of the ministerial exception.  If it could, most hospitals would be exempt from anti‐discrimination laws, as most—even clearly secular hospitals—have chaplaincy departments.... Moreover, the interfaith nature of the Department means that it is not run according to the tenets of any particular religion, thereby reducing the likelihood that evaluating the reasons for the termination of an employee such as Penn would “plunge [a court] into a maelstrom of Church policy, administration, and governance.”

Courthouse News Service reports on the decision.

Appeals Court Says Mennonite Woman Must Remain In Jail Until She Will Answer Prosecution's Questions

A Colorado appeals court. after expedited consideration, has rejected religious liberty arguments raised by a Mennonite woman who refuses to testify on behalf of the prosecution in a capital case.  Greta Lindekranz was an investigator for defense attorneys. The prosecution wants her testimony to rebut arguments that convicted murderer Robert Ray received ineffective assistance of counsel.  Lindekranz, who opposes capital punishment on religious grounds, argues that answering questions on direct examination by the prosecution would make her a tool in the prosecution's efforts to execute Ray.  The trial court held that her refusal to answer questions put forward by the prosecution placed her in contempt, and it ordered her held in jail until she elects to answer the questions. (See prior posting.)  In People v. Ray and Concerning Lindekranz, (CO App., March 8, 2018), the appellate court refused to reverse the contempt citation.  It held that even if strict scrutiny applies, the state has a compelling interest in ascertaining the truth and rendering a just judgment in accordance with the law.  The court rejected Lindekranz's alternative of answering questions from the court, with the prosecution and defense then cross-examining her.

The court concluded:

Ms. Lindecrantz is in a tough spot — caught between the proverbial rock and a hard place. We take no pleasure in declining to extricate her. But the state of the law being what it is, decline we must.

Colorado Public Radio, reporting on the decision, says that an appeal will be filed with the Colorado Supreme Court.

UPDATE: AP reports (March 10) that Lindekranz will now testify because her refusal to do so is hurting Ray's appeal. According to her lawyer: "Based on this dramatic change in circumstance, she has concluded that her religious principles honoring human life now compel that she must testify."

Canadian Agency Violates Foster Parents' Rights By Insisting They Say Easter Bunny Is Real

Canadian Press reports that an Ontario Superior Court judge ruled this week that a Christian couple's religious beliefs were infringed in violation of Canada's Charter of Rights and Freedoms when the Children's Aid Society of Hamilton removed two foster children from their home.  The action closing their foster home came after a social worker insisted that the couple tell the two young girls that the Easter Bunny is real. Foster parents Frances and Derek Baars say that doing so would violate their religious beliefs.  The court wrote in part:

There is ample evidence to support the fact that the children were removed because the Baars refused to either tell or imply that the Easter Bunny was delivering chocolate to the Baars' home. I am more than satisfied that the society actions interfered substantially with the Baars' religious beliefs.

Suit Challenges City's Forcing of Homeless Into Faith-Based Shelters

In Amarillo, Texas, an advocate for the homeless has filed a federal lawsuit challenging the city's attempts to move homeless individuals from a tent city known as Christ Church Camp of New Beginnings to traditional homeless shelters.  The complaint (full text) in Donelson v. City of Amarillo, (ND TX, filed 2/28/ 2018), contends in part that the city has violated the Establishment Clause by forcing people into faith-based shelters.  Texas Observer reports on the lawsuit.