Rabbi Freundel's Voyeurism Sentence Reduced For Good Behavior

According to the District of Columbia Department of Corrections, the prison sentence of Rabbi Barry Freundel has been shortened by more than a year.  Under a plea agreement, in 2015 Freundel was sentenced to six and one-half years in prison on 52 counts of voyeurism.  Freundel had secretly videotaped 150 women in the changing room of the mikveh (ritual bath) at Washington's Kesher Israel Synagogue. (See prior posting.)  JTA reports that the sentence reduction for good behavior was granted because Freundel participated as an instructor in an educational program for inmates.  Freundel's new release date is Aug. 21, 2020.

Judge Rules Pro-Trump Hat Is Not Part of Any Religious Belief

New York Post reports that a New York state trial court judge on Wednesday dismissed a discrimination suit that had been filed by an accountant who was told to leave a West Village bar because he was wearing a pro-Trump "Make America Great Again" cap.  At a hearing, plaintiff's lawyer, when faced with the argument that state and local anti-discrimination laws only protect religious beliefs and not political ones, attempted to turn plaintiff's case into a religious discrimination suit, saying:

The purpose of the hat is that he wore it because he was visiting the 9/11 Memorial.  He was paying spiritual tribute to the victims of 9/11. The Make American Great Again hat was part of his spiritual belief.

After hearing arguments, the judge took a short break and then ruled from the bench:

Plaintiff does not state any faith-based principle to which the hat relates.

District Court Again Dismisses Suit Over Board Positions On Sikh Dharma Entities

In Puri v. Khalsa, (D OR, April 26, 2018), an Oregon federal district court dismissed on ministerial exception and ecclesiastical abstention grounds a suit originally filed in 2010 growing out of disputes following the death of Yogi Bhajan, an important Sikh spiritual leader in the United States.  The widow and three children of Yogi Bhajan claim that they are entitled to board positions in two nonprofit Sikh Dharma entities. In a 2017 decision, the U.S. 9th Circuit Court of Appeals, reviewing  the trial court's dismissal solely on the basis of the pleadings, held that the suit should not have been dismissed on ministerial exception or ecclesiastical abstention grounds. (See prior posting.)  In yesterday's decision, however, the district court, ruling on a summary judgment motion, held that information outside the pleadings now before the court leads to the conclusion that defendants' motion for summary judgment should be granted.

In Bavaria, State Buildings Will Display A Cross

According to Evangelical Focus, in Germany this week the Minister President of the state of Bavaria has ordered every state administration building to hang a Christian cross in the building entrance.   Minister President of Bavaria, Markus Söder says that the cross is "a fundamental symbol of the Christian Western identity" and is an "expression of the spiritual and cultural character of Bavaria."  The order does not apply to municipal and regional district buildings, but they are encouraged to follow the example set by the state government. Opposition political parties in Bavaria criticized the order.

Missouri Supreme Court Hears Oral Arguments On Sexual Orientation and Gender Identity Discrimination

Yesterday, the Missouri Supreme Court heard oral arguments in two cases posing the question of whether the prohibition on "sex" discrimination in the state's civil rights laws includes discrimination on the basis of gender identity or sexual orientation. The first case, R.M.A. v. Blue Springs R-IV School District (audio of full arguments), involves discrimination claims by a middle school student who was born a female but transitioned to male, who has not been allowed by his school to use the boy's rest rooms or locker room.  Because of his female genitalia, the school required him to use a unisex bathroom.

The second case, Lampley v. Missouri Commission on Human Rights (audio of full arguments), Harold Lampley, a state department of social services employee, alleged discrimination and retaliation because he is gay and does not exhibit stereotypical attributes of male appearance and behavior. A second employee alleged discrimination and retaliation because of her association with Lampley.

The Missouri Supreme Court's Docket Summaries page includes more information on the cases and links to briefs (including amicus briefs) filed in each case case [scroll down to SC96683 and SC 96828.  AP reports on the oral arguments.

6th Circuit Hears Oral Arguments In Challenge To Deportation of Iraqi Chaldeans

Yesterday, the U.S. 6th Circuit Court of Appeals hear oral arguments (audio of full arguments) in Hamama v. Adducci. In the case, a Michigan federal district court issued a preliminary injunction preventing Iraqi nationals (many of whom are Chaldean Christians) 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.  Subsequently the court also ordered bond hearings for those detained 6 months or longer. The appeals largely raise issues of whether federal district courts have jurisdiction to grant relief here, or whether plaintiffs should have pursued the matter through administrative immigration courts.  AP reports on the 6th Circuit oral arguments

Parents File State Court Suit Alleging Baptism of Their Son Without Their Consent

As previously reported, last October an Ohio federal district court dismissed a suit by parents of a minor child who contended that the mentor assigned by a juvenile court to their son coerced him into being baptized against the wishes of his parents. The court held that the various defendants were not state actors or had judicial immunity. Now the parents have refiled in state court, alleging causes of action that do not require a showing of state action. The complaint (full text) in Defibaugh v. Big Brothers/ Big Sisters of Northeast Ohio Board of Trustees, (OH Com. Pl., filed 4/24/2018), alleges civil assault and battery, intentional infliction of emotional distress, negligent training and supervision of employees and volunteers, and civil conspiracy.  American Atheists issued a press release announcing the filing of the lawsuit.

Transcript and Audio of Arguments in Trump v. Hawaii Now Available

The full transcript and full audio recordings of today's oral arguments before the Supreme Court in Trump v. Hawaii are now available. At issue is the legality of the third version of President Trump's ban on travel to the U.S. by nationals of several countries.  Washington Post, reporting on the arguments, said that the conservative majority on the Court appeared to agree that the President has authority to issue the ban.

Evangelicals Organizing For Mid-Term Elections

A New York Times article posted yesterday reports:

The conservative Christian coalition that helped usher President Trump into power in 2016 is planning its largest midterm election mobilization ever, with volunteers fanning out from the church pews to the streets to register voters, raise money and persuade conservatives that they cannot afford to be complacent this year.

Evangelicals cite a list of Trump's achievements as the basis for their continued support of candidates backing his agenda, despite the controversies surrounding Trump's alleged personal behavior:

He has begun the process of moving the American Embassy in Israel to Jerusalem, won the confirmation of numerous judges and a Supreme Court Justice who seem likely to advance their anti-abortion cause, moved against transgender protections throughout the government, increased the ability of churches to organize politically and personally supported the March for Life.

Supreme Court Will Hear Oral Arguments In Travel Ban Case Today

The U.S. Supreme Court will hear oral arguments this morning in Trump v. Hawaii, a challenge to the legality of the most recent version of President Trump's controversial "travel ban."  As explained by this argument preview from SCOTUSblog, as well as this New York Times preview, one of the major questions that the Court will face is whether Donald Trump's anti-Muslim statements  during his campaign for office, and his Tweets while in office, should be considered in deciding whether his later executive action violates the Establishment Clause. SCOTUS blog's case page has links to the numerous briefs filed in the case, as well as to commentary and other primary source documents.  I will post a link to the transcript of the oral argument when it becomes available later today.

3rd Circuit Allows Religious Group To Intervene In State's Challenge To Trump Contraceptive Mandate Exemptions

In Commonwealth of Pennsylvania v. President United States of America, (3rd Cir., April 24, 2018), the U.S. 3rd Circuit Court of Appeals in a 20-page opinion reversed a Pennsylvania federal district court. The 3rd Circuit allowed Little Sisters of the Poor to intervene to defend Trump Administration interim rules expanding religious and moral exemptions from the Affordable Care Act's contraceptive coverage mandate. Becket issued a press release on the decision.

Senate Confirms Religious Liberty Expert For Seat On 5th Circuit

The U.S. Senate yesterday by a vote of 50- 47, confirmed Stuart Kyle Duncan, of Louisiana, to be United States Circuit Judge for the Fifth Circuit. (Senate vote details).  Duncan has an extensive record of research and litigation on church-state and religious liberty issues. (See prior posting.)  In a press release from Becket, where Duncan served as general counsel for two years, the advocacy group's current president said in part:

At Becket, Kyle was a steadfast defender of religious liberty for people of all faiths and was known for his intelligence and evenhandedness. His generosity and respect for others has made him a great advocate, and will make him a fair and respected judge.

UPDATE: In a statement issued April 24, the Human Rights Campaign took a different view of Duncan's record, calling him an "extremist, anti-LGBTQ nominee."

Supreme Court: Foreign Corporations Cannot Be ATS Defendants

The U.S. Supreme Court today on Jesner v. Arab Bank, (Sup. Ct., April 24, 2018), by a vote of 5-4, held that foreign corporations may not be defendants in suits under the Alien Tort Statute.  In the suit, plaintiffs claimed that terrorist attacks abroad had been facilitated by defendant, Arab Bank.  The portion of Justice Kennedy's opinion that commanded the vote of 5 justices said in part:

The ATS was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations in circumstances where the absence of such a remedy might provoke foreign nations to hold the United States accountable.... But here, and in similar cases, the opposite is occurring. Petitioners are foreign nationals seeking hundreds of millions of dollars in damages from a major Jordanian financial institution for injuries suffered in attacks by foreign terrorists in the Middle East. The only alleged connections to the United States are the CHIPS transactions in Arab Bank’s New York branch and a brief allegation regarding a charity in Texas.

Justices Thomas, Alito and Gorsuch each filed a concurring opinion.  Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg, Breyer and Kagan.  Law.com reports on the decision.

State Department Releases 2017 Country Reports On Human Rights

Last Friday, the U.S. State Department released its 2017 Country Reports on Human Rights Practices. The release was accompanied by remarks from Acting Secretary of State John Sullivan and a press briefing by Michael Kozak, Ambassador, Bureau of Democracy, Human Rights and Labor.  Secretary Sullivan highlighted a special concerns, including the ethnic cleansing of Rohingya in Burma.  In the the report on each individual country, the issue of Religious Freedom is covered by a cross reference to the Department of State’s International Religious Freedom Report for 2016, released in August 2017 (see prior posting).

Falun Gong Is A Religion Under FACE Act

In Zhang v. Chinese Anti-Cult World Alliance, (ED NY, April 23, 2018), a New York federal district court in an 84-page opinion ruled that a group of Falun Gong adherents may proceed on certain of its causes of action against individuals who have engaged in verbal and physical confrontations with plaintiffs.  The court explains:

Adherents of Falun Gong live in the United States. Some are citizens of this country. It is contended by them as plaintiffs that the Chinese Government has conspired with individuals to harm followers and suppress Falun Gong in the United States by organizing and encouraging the Chinese Anti-Cult World Alliance (“CACWA”) and individuals to inflict injuries on those who follow Falun Gong.

Defendants oppose Falun Gong in Flushing, Queens, New York, and elsewhere. They deny that Falun Gong is a religion. Following the position of the Chinese Government, their opposition is based upon characterizing Falun Gong as a “cult” indoctrinating its followers with beliefs that are dangerous, unscientific, and offensive.

One of plaintiffs' claims was brought under the Freedom of Access to Clinic Entrances Act of 1994 which allows a civil action by any person who has suffered physical interference with the exercise of the right of religious freedom at a place of religious worship. The court held that for purposes of this statute, Falun Gong is a "religion":

Expert testimony showed that Falun Gong is at its center concerned with ultimate questions of life and the universe. Dr. Waldron explained his view that Falun Gong is derived from Buddhism and other ancient Chinese religions. There is no genuine dispute for purposes of this case: Falun Gong “occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.” Int’l Soc. For Krishna Consciousness, 650 F.2d at 440 (2d Cir. 1981). Falun Gong is a religion for purposes of the instant litigation. The jury will be so instructed.

Plaintiffs were also allowed to proceed with claims of assault and battery, and bias related intimidation under the New York Civil Rights Act.  Defendants were allowed to move ahead on civil rights and assault and battery counter-claims growing out of the same incidents. New York Law Journal reports on the decision.

Report Finds Increase In Anti-Muslim Bias Incidents

Yesterday CAIR released its 2018 Civil Rights Report which it titles Targeted (full text). Here is part of the Key Findings section of the report:

Anti-Muslim bias incidents have continued to increase in 2017. Additionally, a greater percentage of these instances have been violent in nature, targeting American children, youth, and families who are Muslim or perceived to be Muslim.

CAIR recorded a 17 percent increase in anti-Muslim bias incidents nationwide in 2017 over 2016.  This was accompanied by a 15 percent increase in hate crimes targeting American Muslims, including children, youth, and families, over the same period.

Of particular alarm is the fact that federal government agencies instigated 35 percent of all anti-Muslim bias incidents recorded in 2017. This represents an almost unprecedented level of government hostility toward a religious minority within the United States, and is counter to the American value of religious freedom.

Following the executive order barring the entry of individuals from several Muslim-majority countries into the U.S., the first version of which was signed on January 27, 2017, CAIR received a deluge of cases. Over the course of the year, CAIR recorded 464 incidents pertaining to the unconstitutional Muslim Ban. That is a staggering 18 percent of the total number of anti-Muslim bias incidents documented in 2017.

European Court Interprets Provision Allowing Churches To Hire On Basis of Religion

In Egenberger v. Evangelisches Werk für Diakonie und Entwicklung eV, (CJEU, April 17, 2018), the Court of Justice of the European Union in a preliminary ruling by its Grand Chamber interpreted Council Directive 2000/78/EC which bars employment discrimination on the basis of religion or belief.  The Directive creates an exception for existing national practices as to "occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief."  It provides that in such organizations:

a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos.

In the request for an interpretation from the German Federal Labor Court, the European Court held that effective judicial review must be available as to whether an occupational requirement that one hold particular religious beliefs is genuine, legitimate and justified.  It went on to define how national courts should interpret the exception:

 Thus the lawfulness ... of a difference of treatment on grounds of religion or belief depends on the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned. Such a link may follow either from the nature of the activity, for example where it involves taking part in the determination of the ethos of the church or organisation in question or contributing to its mission of proclamation, or else from the circumstances in which the activity is to be carried out, such as the need to ensure a credible presentation of the church or organisation to the outside world....

... [T]he church or organisation imposing the requirement is obliged to show, in the light of the factual circumstances of the case, that the supposed risk of causing harm to its ethos or to its right of autonomy is probable and substantial, so that imposing such a requirement is indeed necessary.

.... As the principle of proportionality is one of the general principles of EU law ..., the national courts must ascertain whether the requirement in question is appropriate and does not go beyond what is necessary for attaining the objective pursued.

Law & Religion UK has more on the decision.

Recent Articles of Interest

From SSRN:

• Antony Kolenc, Religion Lessons from Europe: Intolerant Secularism, Pluralistic Neutrality, and the U.S. Supreme Court, (Pace Law Review, Vol. 30, No. 1, 2017).
• Matthew O. Jackson & Yiqing Xing, The Interaction of Communities, Religion, Governments, and Corruption in the Enforcement of Contracts and Social Norms, (April 1, 2018).
• Nathan S. Chapman, A Reformed Liberalism: Michael McConnell's Contributions to Christian Jurisprudence, (Mark David Hall and Daniel Dresibach, Great Christian Jurists in American History (Cambridge University Press, Forthcoming).
• Asim Jusic, Damned If It Doesn't and Damned If It Does: The European Court's Margin of Appreciation and the Mobilizations Around Religious Symbols, (University of Pennsylvania Journal of International Law, Vol. 39, No. 3, 2018).
• Patrick Murphree, Schools in the Middle: Resolving Schools' Conflicting Duties to Transgender Students and Their Parents, 86 UMKC L. Rev. 405 (2018).
• Michele Goodwin, If Embryos and Fetuses Have Rights, (Law & Ethics of Human Rights, Vol. 11, No, 2, 2017, pp.189-224).
• Claudio Michelon & Amalia Amaya, Introduction to ‘Virtue and Law’ Symposium, (Edinburgh School of Law Research Paper No. 2018/13).
• Robert H. Sitkoff, Fiduciary Principles in Trust Law, (Oxford Handbook of Fiduciary Law, Evan Criddle, Paul Miller, and Robert H. Sitkoff eds., 2018 Forthcoming).

From SSRN (Islamic Law):

• Mohammad Sardoueinasab, Iranian Law, New Era and Transnational Law, (April 20, 2018).
• Ghassan Abdul-Jabbar, The 'Six Books' of Hadith, (November 1, 2017).
• Abdul-Jabbar, Ghassan, The Classical Tradition, (November 1, 2017).

From SmartCILP:

• Religious Rights in a Pluralistic World. Articles by Sahar F. Aziz, Md. Jahid Hossain Bhuiyan, Elena Ervas, Jan Figel?, Tassaduq Hussain Jillani, Faizan Mustafa, Jagteshwar Singh Sohi, Brett G. Scharffs. 2017 BYU Law Review 779-989.
• Gideon Sapir & Mark Goldfeder, Law, Religion, and Immigration: Building Bridges With Express Lanes, 32 Emory International Law Review 201-254 (2018).
• Douglas Laycock. The Wedding-Vendor Cases, 41 Harvard Journal of Law & Public Policy 49-66 (2018).
• William P. Marshall, Extricating the Religious Exemption Debate from the Culture Wars, 41 Harvard Journal of Law & Public Policy 67-77 (2018).
• Marci A. Hamilton, The Cognitive Dissonance of Religious Liberty Discourse: Statutory Rights Masquerading as Constitutional Mandates, 41 Harvard Journal of Law & Public Policy 79-94 (2018).
• Khaled A. Beydoun, Bisecting American Islam? Divide, Conquer, and Counter-Radicalization, 69 Hastings L.J. 429-497 (2018).
• Gijs van Dijck, Victim-Orientated Tort Law in Action: An Empirical Examination of Catholic Church Sexual Abuse Cases, 15 Journal of Empirical Legal Studies 126-164 (2018).

Recent Prisoner Free Exercise Cases

In Merrick v. Ryan, (9th Cir., April 17, 2018), the 9th Circuit affirmed the dismissal of an inmate's free exercise and RLUIPA complaints regarding denial of religious materials and practices, finding that the district court properly relied on lack of sincere religious belief.  It also upheld dismissal of equal protection of establishment clause claims.

In Covington v. Bledsoe County Corrections, 2018 U.S. Dist. LEXIS 63311 (ED TN, April 16, 2018), a Tennessee federal district court allowed a Muslim inmate to move ahead with his complaint that the jail would not allow Muslim inmates to have a feast or allow outside Muslims in to cook or pray for Ramadan.

In Barfell v. Aramark, 2018 U.S. Dist. LEXIS 63582 (ED WI, April 16, 2018), a Wisconsin federal district court allowed an inmate to move ahead with his complaint about a 5-day delay in receiving a religious vegan diet and his claim that religious vegan trays routinely contain animal products. However he was not allowed to proceed with his complaint regarding the quality of the vegan food.

In Slater v. Teague, 2018 U.S. Dist. LEXIS 63263 (D CO, April 12, 2018), a Colorado federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 63605, March 21, 2018) and dismissed a former inmate's complaints regarding availability, timing and preparation of kosher food and his limited access to Jewish religious texts.

In Hearns v. Gonzales, 2018 U.S. Dist. LEXIS 63885 (ED CA, April 13, 2018), a California federal district court, adopting in part a magistrate's recommendation (2018 U.S. Dist. LEXIS 28959, Feb. 22, 2018), allowed an inmate to move ahead with retaliation, free exercise and California Bane Act claims complaining that a correctional officer poured bleach on his legal papers and his prayer rug.

In Sims v. Wegman, 2018 U.S. Dist. LEXIS 64678 (ED CA, April 16, 2018), a California federal magistrate judge recommended dismissing a Nation of Islam inmate's complaint that he was refused an NOI, or alternatively a kosher diet.  Dismissal of one defendant was only because of failure to effect service.

In Johnson v. Roskosci, 2018 U.S. Dist. LEXIS 65405 (MD PA, April 17, 2018), a Pennsylvania federal magistrate judge recommended dismissing an inmate's complaint that beads and necklaces with religious significance were confiscated. UPDATE: The court adopted the magistrate's recommendation at 2018 U.S. Dist. LEXIS 165557, Sept. 26, 2018.

In Fusco v. Cty. of Putnam, 2018 U.S. Dist. LEXIS 65444 (SD NY, April 18, 2018), a New York federal district court allowed an inmate to proceed with his claim that he was prevented from attending Catholic mass during his placement in segregation.

Cert. Denied In Abortion Protester's Case

Last Monday, the U.S. Supreme Court denied review in March v. Mills, (Docket No.17-689, cert. denied 4/16/2018) (Order List).  In the case, the U.S. 1st Circuit Court of Appeals upheld a provision of the Maine Civil Rights Act that prohibits a person making noise that can be heard within a health care facility where the intent is to jeopardize health or interfere with the delivery of health services.  The appeals court rejected a constitutional challenge brought by an abortion protester who is the pastor and co-founder of a church whose mission was described as including "plead[ing] for the lives of the unborn at the doorsteps of abortion facilities." (See prior posting.)  AP reported on the Supreme Court's denial of certiorari. [Thanks to Tom Rutledge for the lead.]

New Study Says Government Services and Religiosity Are Inversely Related

An interesting new study has been published: Miron Zuckerman, Chen Li & Ed Diener, Religion as an Exchange System: The Interchangeability of God and Government in a Provider Role, Personality and Social Psychology Bulletin (SAGE) (April 18, 2018). The Abstract reads:

An exchange model of religion implies that if a secular entity such as government provides what people need, they will be less likely to seek help from supernatural entities. Controlling for quality of life and income inequality (Gini), we found that better government services were related to lower religiosity among countries (Study 1) and states in the United States (Study 2). Study 2 also showed that during 2008-2013, better government services in a specific year predicted lower religiosity 1 to 2 years later. In both studies, a combination of better government services and quality of life was related to a particularly low level of religiosity. Among countries, government services moderated the relation between religiosity and two measures of well-being, such that religiosity was related to greater well-being only when government services were low. We discuss the relation between the exchange model and other theoretical approaches to religion.

Miami Herald reports on the study. For those with academic library privileges, the full text is available in he Sage Journals data base, or readers can request a copy from Research Gate. [Thanks to James Phillips for the lead.]

Settlement Order Entered In Chabad's Dispute With New Jersey Town

After lengthy mediation, a settlement has been reached in a lawsuit filed in 2016 by Chabad Jewish Center of Toms River, New Jersey and Rabbi Moshe Gourarie challenging Toms River's refusal to allow a Chabad Center to operate out of a large home and garage on 8 acres purchased by Gourarie in 2011. (See prior posting.)  An Order reflecting the settlement was entered in February (Chabad Jewish Center of Toms River, Inc. v. Township of Toms River, (D NJ, Feb. 5, 2018), but the settlement is just now being publicized.  As reported by Toms River Patch:

Rabbi Moshe Gourarie will be permitted to continue to hold religious gatherings at the Chabad's Church Road location, with certain stipulations.... Toms River Township must pay $122,500 to cover the Chabad's attorneys' fees, and an investigation by the federal Department of Justice into the township's zoning practices has been dropped.

Among the stipulations in the settlement are a limit of 35 individuals (in addition to family members) for most gatherings at the Center, with that number going up to 49 for six specific holidays each year.

6th Circuit: Ohio's Cutoff of Non-Abortion Funding To Planned Parenthood Is Unconstitutional

In Planned Parenthood of Greater Ohio, Inc. v. Himes, (6th Cir., April 18, 2018), the U.S. 6th Circuit Court of Appeals held unconstitutional a 2016 Ohio law aimed at Planned Parenthood.  ORC §3701.34 prohibits the Ohio Department of Health from channeling funds it receives through six non-abortion-related federal health programs to any entity that performs or promotes nontherapeutic abortions, or which is affiliated with any entity that performs or promotes such abortions.  The appeals court held that the district court correctly applied the unconstitutional conditions doctrine in enjoining enforcement of the law, saying that "the unconstitutional-conditions doctrine is not limited to First Amendment rights."  According to the court, the question posed in this case is

whether Ohio may require a provider to surrender the right to provide safe and lawful abortions on its own “time and dime” as a condition of participating in government programs that have nothing to do with abortion. 

The court concluded:

Although Ohio women do not have a right to the programs, they do have a right not to have their access to important health services curtailed because their major abortion providers opted to protect women’s abortion rights rather than yield to unconstitutional conditions. 

 The court also held that the law imposes unconstitutional conditions on speech by prohibiting funds from going to any entity that promotes abortion:

§3701.034 affects programs that have nothing to do with abortion or family planning, and seeks to impose restrictions on recipients’ speech outside the six government programs the statute funds.

Columbus Dispatch, reporting on the decision, pointed out that two of the three judges handing down the ruling were Republican appointees. It also reports that the state Attorney General's office is reviewing the decision to determine whether it should seek en banc review or appeal to the U.S. Supreme Court. [Thanks to Tom Rutledge and Scott Mange for the lead.]

More Rulings In South Carolina Episcopal Church Split

Earlier this week, a South Carolina federal district court issued another opinion in the long-running battle between competing Episcopal Church factions in South Carolina.  While the underlying dispute over which faction owns church property has been litigated in state court, a federal court suit was filed alleging a false advertising claim under the Lanham Act. Episcopal Bishop Charles von Rosenberg who heads the minority of congregations in South Carolina that remain loyal to The Episcopal Church sued Bishop Mark Lawrence who heads the larger portion of the congregations that in 2012 broke away from the national church. Von Rosenberg alleged that Lawrence engaged in false advertising by asserting that he remained the Bishop of the Diocese.  In vonRosenberg v. Lawrence, (D SC, April 16, 2018), the court allowed plaintiffs to add as defendants the Diocese, parishes and trustee corporation affiliated with Bishop Lawrence.

In a perhaps more interesting second part of the opinion, the court refused to allow the suit to be expanded to assert a novel breach of trust claim.  Last year, the South Carolina Supreme Court decided the property issue largely in favor of those who remained loyal to The Episcopal Church. (See prior posting.)  Plaintiffs sought to add a claim that "the parishes have breached their fiduciary duties by allowing property held in trust for TEC to be used 'in connection with a denomination' other than TEC."  They sought an order against 28 Parishes "to remove from their vestries any persons who cannot demonstrate to this Court's satisfaction that they are capable of and willing to carry out their fiduciary obligations to The Episcopal Church...."  The court held that it is not "free to use trust law entangle itself with religion like a fly in a spider web."  It continued:

Entry of a judicial order telling 28 congregations whom they may or may not elect to their respective parish vestries would foster excessive judicial entanglement with religion....

Of course, there are other ways for TEC to enforce its property rights. For example, TEC could take legal possession of the parish property held in trust for its benefit, rather than asking a federal court to supervise the local congregation's use the property. 

Charleston Regional Business Journal reports on the decision.

New Jersey Supreme Court Says Grants To Churches Violate State Constitution

In Freedom From Religion Foundation v. Morris County Board of Chosen Freeholders, (NJ Sup.Ct., April 18, 2018), the New Jersey Supreme Court held that historic preservation grants to 12 churches (totaling $4.6 million) violate the Religious Aid Clause of the New Jersey Constitution.  That clause (Art. I, Sec. 3) provides that no person shall be obliged to pay taxes for building or repairing any church. The court concluded that there is no implied exception to this prohibition for historical preservation.

The Court went on to hold that this interpretation does not violate the Free Exercise Clause of the U.S. Constitution:

The [U.S. Supreme Court's] holding of Trinity Lutheran does not encompass the direct use of taxpayer funds to repair churches and thereby sustain religious worship activities. See 137 S. Ct. at 2024 n.3. We therefore find that the application of the Religious Aid Clause in this case does not violate the Free Exercise Clause.

Justice Solomon filed a concurring opinion:

The majority concludes that the present case exceeds the scope of Trinity Lutheran since Morris County’s taxpayer-funded grants “went toward ‘religious uses.’”... However, that conclusion ignores New Jersey’s separate and substantial government interest at stake in this case -- historical preservation. I believe that had Morris County’s program been applied in a fundamentally neutral manner, the Religious Aid Clause could not bar funding to an otherwise qualified religious institution.

FFRF issued a press release announcing the decision.  Daily Record reports on the decision.

New Video On Being Muslim In U.S.

The Pew Research Center on Religion & Public Life yesterday released an 18-minute video on Being Muslim in the U.S. The video is based on the Center's 2017 survey of U.S. Muslims as well as on personal stories from Muslims across the U.S.

Defendant In Dead Sea Scrolls Debate Avoids Jail

Yeshiva World reports that a long running prosecution of a literature scholar (who is also now a disbarred lawyer) has ended without a jail sentence for the defendant who was charged with online impersonation growing out of an academic dispute over authorship of the Dead Sea Scrolls:

Raphael Golb’s conviction wasn’t quite like any other: using online aliases to discredit his father’s adversary in a scholarly debate over the Dead Sea Scrolls.

The 9-year-old case got a New York law thrown out and finally ended Monday with no jail time for Golb, who persuaded a judge to sentence him to three years’ probation rather than two months in jail.

Appeals had put the jail term on hold and narrowed the counts in his criminal impersonation and forgery conviction in a curious case of ancient religious texts, digital misdeeds, academic rivalries and filial loyalty.

"Obviously, I’m relieved not to be going to jail,” Golb said, adding that he remains concerned by having been prosecuted for online activity he said was meant as satire."

American Pastor Gets Initial Hearing In Turkish Court

According to Al-Monitor, in Turkey a North Carolina pastor finally was able to appear in court after being held in detention for 18 months. Pastor Andrew Craig Brunson, who led a small Protestant congregation in the Turkish city of Izmir, rejected the terrorism and espionage charges against him.  Brunson was among the many arrested after the failed 2016 coup which Turkish officials blame on Fethullah Gulen, who is living in Pennsylvania.  Many believe that the Turkish government wants to exchange Brunson for Gulen.  The court adjourned Brunson's trial until May 7, and ruled that he will continue to be held in solitary confinement. The U.S. Commission on International Religious Freedom issued a statement saying in part:

We are deeply disappointed that Turkish officials today decided to prolong their prosecution and unjust imprisonment of Pastor Andrew Brunson.

Israeli Court Rules "Am Yisrael Chai" Is Patriotic Slogan, Not A Prayer

In Israel, a Jerusalem Magistrate's Court yesterday ruled in favor of right-wing activist Itamar Ben Gvir in his suit for wrongful detention.  The suit grows out of a 2015 incident in which police held him for several hours because of his conduct at the Temple Mount where religious practices are controlled by the Muslim Waqf. As reported by Times of Israel, under current arrangements, Jews are allowed to visit the Temple Mount, but they may not pray there.  While Ben Gvir was touring the site with a Jewish group, a Muslim woman shouted Allahu Akbar at them.  He shouted back"Am Yisrael chai" (the Jewish People Live), at which point Israeli police detained him for violating the no-prayer rule.  The court ruled that the phrase used by Ben Gvir is a patriotic slogan, not a prayer.

No Spousal Privilege When Only Religious Marriage Was Entered

In Springfield, Massachusetts, a state trial court judge has ruled that the ex-wife of Ayyub Abdul-Alim may testify against him in his trial on firearms charges.  As reported by MassLive, the judge held inapplicable here the normal rule that bars a witness from testifying to private conversations with her spouse that occurred during their marriage. The parties were married in an Islamic religious ceremony, but never obtained a state-issued marriage certificate.  The court said:

While the court acknowledges that a marriage between the defendant and Ms. Stewart took place in the religious sense, there is no evidence that this marriage was sanctioned by the state through the fulfillment of the legal requirements.

6th Circuit: Church Restaurant Volunteers Are Not Covered By FLSA

In Acosta v. Cathedral Buffet, Inc., (6th Cir., April 16, 2018), the U.S. 6th Circuit Court of Appeals held that church volunteers who work at a for-profit restaurant operated by the church on its campus are not subject to the Fair Labor Standards Act.  The volunteers supplement paid staff.  The court held that because the volunteers do not expect to receive compensation and are not economically dependent on the restaurant, they are not "employees" for purposes of the FLSA.

The more difficult question faced by the court was the concern expressed in Supreme Court cases that employers might coerce employees to make assertions that they did not expect compensation.  In this case, it was argued, the church's pastor engaged in coercion of church members to volunteer:

Reverend Angley recruited volunteers from the church pulpit on Sundays....  [B]efore his sermon, Angley would announce to the congregation that more volunteers were needed. Angley said the restaurant was “the Lord’s buffet,” and “[e]very time you say no, you are closing the door on God.” ...Ushers would pass around slips of paper, and parishioners interested in volunteering would write down their phone number and hand it in.

Judge Siler's opinion for the court rejected this argument, saying that "spiritual coercion cannot stand in for the economic coercion" that concerned the Supreme Court in prior precedent.

Judge Kethledge filed a concurring opinion exploring the "coercion" argument at greater length, saying in part:

The Department seeks to regulate spiritual conduct qua spiritual conduct, and to impose significant liability as a result. ... [T]he Department’s position here is that otherwise legal conduct—such as volunteering at a church restaurant—becomes illegal if the worker’s pastor spiritually pressures her to engage in it.... 

Nor is the Department even competent to make the spiritual judgment it purported to make here. “It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”... That same idea of centrality perforce lies beneath any judgment about spiritual coercion. And bureaucrats are no better than judges at making that judgment. Hence it is beyond the ken of federal agencies, or the courts, to determine that congregants were spiritually coerced even though the congregants themselves say they were not.... 

What is perhaps most troubling about the Department’s position in this case, however, is the conceit of unlimited agency power that lies behind it. The power of a federal agency is no more than worldly. The Department should tend to what is Caesar’s, and leave the rest alone.

Cleveland.com reports on the decision.

European Human Rights Court Can Now Issue Advisory Opinions

The European Court of Human Rights announced last week that Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (full text) has come into force after France became the tenth nation to ratify it. The Protocol allows courts in each European nation to request advisory opinions on the interpretation or application of the European Convention on Human Rights.  Requests for advisory opinions are limited to cases pending before the national court when the request is made.

European Court Says Bektashi Community Should Have Been Recognized

In Bektashi Community v. The former Yugoslav Republic of Macedonia, (ECHR, April 12, 2018), the European Court of Human Rights, in a Chamber Judgment, held that the Bektashi Community had wrongfully been denied registration as an officially recognized religious organization under Macedonia's 2007 Legal Status of Churches, Religious Communities and Religious Groups Act.  The Court held in part:

[T]he ground for refusing re-registration of the applicant association was purely formal, notably that it had not been registered by the Commission as a religious entity prior to 1998, but only listed in 2000. The Government omitted to indicate any legitimate aim which this formal restriction may have pursued....

After the registration court refused to re-register the applicant association under section 35 of the 2007 Act, the applicant association launched new proceedings for its registration under the name "Bektashi Religious Community of the Republic of Macedonia"....

The Court also rejected a name-confusion argument, finding that the name is "sufficiently specific to distinguish it from the 'Ehlibeyt Bektashi Religious Group of Macedonia'".  The Court went on:

The other ground relied on by the domestic courts concerned the doctrinal sources of the applicant association, which they found to be identical to the doctrinal sources of the already registered "Islamic Religious Community". That conclusion was made on the basis of an assessment by the domestic courts of the applicant association's fundamental precepts and their comparison with the precepts of the "Islamic Religious Community" .... In the Court's view, such an assessment and interpretation of the applicant association's basic tenets of creed was incompatible with the State's role as a neutral and impartial organiser of the exercise of various religions, faiths and beliefs, which excludes, save for very exceptional cases, any discretion on the part of the State to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed....

 Law & Religion UK has more on the decision.

USCIRF Issues New Report On Religious Freedom Challenges In Burma

The U.S. Commission on International Religious Freedom has recently issued an update on religious freedom challenges in Burma. (Full text of report).  The report, which particularly focuses on the conditions faced by Rohingya Muslims in Rakhine State, also more broadly summarizes the situation in the country:

Successive governments in Burma have failed to ensure that all religious communities are able to practice their faith freely, openly, and without fear, and in some cases have directly perpetrated, tolerated, or ignored religious- and ethnic-based discrimination and abuses. Religious and ethnic minorities are disadvantaged by:

• Institutionalized discrimination;

• Increasing anti-Muslim sentiment and the related rise of Buddhist nationalism, which has affected all religious minorities;

• A culture of impunity and lack of accountability for human rights abuses and crimes committed by military and nonstate actors; and

• Decades of ethnic armed conflicts and internal displacement.

The deprivation of Rohingya Muslims’ rights became even more acute following 2012 communal violence in Rakhine State...

Recent Articles of Interest

From SSRN:

• R. Michael Cassidy, Catholic Social Thought and Criminal Justice Reform, (Journal of Catholic Social Thought, Forthcoming).
• Giancarlo Anello & Mohamed A. Arafa, The Meaning of ‘Religion’ in the Legal Context: Some Remarks on the Pragmatics of Islam in Egyptian Law in Multicultural Societies Law, (39 Rivista Telematica [Milan Univ. L. J. “Italy”] (Fall 2017)).
• Trudo Lemmens, Charter Scrutiny of Canada's Medical Assistance in Dying Law and the Shifting Landscape of Belgian and Dutch Euthanasia Practice, (85 Supreme Court Law Review (2nd Series) (Forthcoming)).
• Micah Schwartzman, Official Intentions and Political Legitimacy: The Case of the Travel Ban, (NOMOS LXI: Political Legitimacy(2018)).
• Amos N. Guiora, Inciting Terrorism on the Internet: The Limits of Tolerating Intolerance, (Incitement to Terrorism (A. Bayefsky & L. Blank, eds, Brill 2018)).
• Sabir Ali, Usman Umer & Muhammad Waqas Butt, Role of English Press in Dissemination of Liberal Values for Women Empowerment in Pakistan: Honor Killing of Qandeel Baloch, (May 30, 2016).
• Mohammed Hussain, Vanja Hamzić: Sexual and Gender Diversity in the Muslim World: History, Law and Vernacular Knowledge, (VRUE Journal, Spring 2018, Forthcoming).
• Linda Sugin, Competitive Philanthropy: Charitable Naming Rights, Inequality, and Social Norms, (79 Ohio St. L. J. _ (2018)).

From SmartCILP:

• Gregory Brazeal, Between Description and Prescription: Law, Wittgenstein, and Constitutional Faith, 120 West Virginia Law Review 363-426 (2017).

Tax Objector's Strategy To Prevent Garnishment Does Not Constitute Tax Evasion

The Oregonian last week reported on a partial court victory by Christian tax objector Michael Bowman who for the last nearly 20 years has refused to file income tax returns unless some accommodation is made so none of his tax monies support abortion.  When in 2012 Oregon tax authorities began to garnish Bowman's bank account, he moved to keep only a small balance in his checking account by cashing his pay checks rather than depositing them.  This led federal authorities last year to charge him with felony counts of tax evasion.  However, last week an Oregon federal district court held that merely cashing pay checks, when his income was fully reported to the IRS, could not constitute tax evasion.  However Bowman still faces four federal misdemeanor counts of willful failure to file tax returns.

Recent Prisoner Free Exercise Cases

In Buckley v. Cook, 2018 U.S. Dist. LEXIS 59987 (SD IL, April 9, 2018), an Illinois federal district court dismissed without prejudice an inmate's complaint that the Alton County Jail did not offer formal religious services on Sundays. The court allowed him to proceed on certain unrelated claims.

In Little v. Guice, 2018 U.S. Dist. LEXIS 59995 (WD NC, April 6, 2018), a North Carolina federal district court dismissed an inmate's complaint that he was sanctioned for writing his cousin about the Moorish American faith.

In Chila v. Camden County Correctional Facility, 2018 U.S. Dist. LEXIS 60547 ( NJ, April 9, 2018), a New Jersey federal district court dismissed a female Muslim inmate's complaint that her hijab was taken from her, she was denied access to a Quran, and she could not leave her cell for religious worship.

In Johnson v. Bienkoski, 2018 U.S. Dist. LEXIS 61560 (MD PA, April 10, 2018), a Pennsylvania federal magistrate judge recommended dismissing without prejudice an inmate's complaint that his religious beads were confiscated and his commissary privileges were restricted during Ramadan.

In Robertson v. Call, 2018 Kan. App. Unpub. LEXIS 274 (KA App., April 13, 2018), a Kansas Court of Appeals agreed that a prison had not violated the Establishment Clause by limiting a Messianic Jewish inmate's visits with his rabbi to interaction through video conferencing rather than allowing face-to-face visits. It also agreed that a visit by a Christian ministries group had not violated the Establishment Clause.

In Michigan, Battle Over Appropriations For State Mandates On Private Schools, Continues

Detroit News yesterday reported on developments in Michigan in the battle over legislative appropriations to fund state mandates imposed on private and religious schools-- requirements such as fire drills and criminal background checks.  Last year, the state Court of Claims issued a preliminary injunction barring payment of the $2.5 million that the legislature had appropriated.  The Court's decision was based on Michigan's Blaine Amendment (inserted in the state constitution in 1970) that bars public funds for "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school". (See prior posting.)  On March 12, Immaculate Heart of Mary Catholic school in Grand Rapids, along with parents and state legislators, filed a counter-suit in the Court of Claims contending that the Blaine Amendment violates the free exercise, free speech and equal protection clauses of the federal constitution.  According to the Detroit News:

The Grand Rapids school’s lawsuit argues the state’s so-called Blaine Amendment was developed in a furor of “anti-Catholic sentiment” and should be disregarded in the debate over the $2.5 million state allocation for non-public schools.

The enjoined funding has been included by the legislature, over the opposition of Gov. Rick Snyder, in the proposed 2019 budget.

Michigan Supreme Court Reinstates Consumer Protection Challenge To Gym's Transgender Rules

The Michigan Supreme Court in  Cormier v. PF Fitness- Midland, LLC, (MI Sup. Ct., April 6, 2018), reversed a state appeals court's dismissal of a Michigan Consumer Protection Act lawsuit against Planet Fitness.  The lower court had held that plaintiff had abandoned her Consumer Protection Act claim.  Her suit challenges Planet Fitness' cancellation of her membership after her warnings to others about a transgender woman at the club.  The gym's rules allow transgender individuals to use locker rooms consistent with their gender identity.  AP reports on the decision. [revised]

Judge's Suit Challenging His Removal From Death Penalty Cases Moves Ahead

In Griffen v. Arkansas Supreme Court, (ED AR, April 12, 2018), an Arkansas federal district court held that sovereign and judicial immunity do not bar a suit for declaratory relief brought by a state court judge against justices of the Arkansas Supreme Court after they barred him from hearing death penalty cases.  Plaintiff, who is also a pastor, was active in demonstrations and vigils opposing the death penalty.  He contends that the action taken against him amounts to retaliation based on his speech and religion in violation of the 1st Amendment and the Arkansas Religious Freedom Restoration Act. The court held that he had stated a plausible claim for relief.  AP reports on the decision.

UPDATE: On April 24, defendants filed a writ of mandamus with the 8th Circuit challenging the district court's refusal to dismiss the lawsuit. (Arkansas Online).

Dolphins Cheerleader Claims Religious Discrimination In Limits On Her Social Media Posts

According to USA Today, former Miami Dolphins cheerleader Kristan Ann Ware this week filed a complaint with the Florida Commission on Human Relations against the Dolphins and the National Football League alleging religious and gender discrimination.  She says that in her annual work review, she was told not to discuss on social media her religious decision to abstain from sex before marriage.  She had posted a photo of her baptism online.  She contends that the players are not held to the same standards regarding discussion of religion on social media.

Magazine Says Muslims Are Thriving In America

National Geographic has posted a lengthy article titled How Muslims, Often Misunderstood, Are Thriving in America.  Here is an excerpt:

Today an estimated 3.45 million Muslims in America are living in a climate of hostility, their faith distorted by violent extremists on one end and an anti-Muslim movement on the other. The rise in animosity was stoked by fiery anti-Muslim rhetoric from conservative commentators and politicians, including the president. Trump repeatedly has described Islam as a threat, retweeting anti-Muslim videos from a British hate group and keeping his distance from the religion, like when he decided the White House, for the first time in more than two decades, would not host a dinner to mark Ramadan....

And yet Muslim communities in America are thriving. Modest clothes for women who cover their hair are being created by Muslims in the U.S. under labels like Haute Hijab and Austere Attire, and Macy’s is now selling fashion for Muslim women. Halal products, the Muslim equivalent of kosher, are available at Costco and Whole Foods. Mattel has even debuted a Muslim Barbie. The doll, complete with a head scarf, is modeled on Olympic fencer Ibtihaj Muhammad. There’s a Muslim liberal arts college in Berkeley, California, and a graduate school in Claremont, California. Community activism is thriving, and Muslim activists are forging alliances with other marginalized communities.

Trump Issues Proclamation On Holocaust Remembrance

Today is Yom Hashoah (Holocaust  Remembrance Day).  Yesterday President Trump issued a Proclamation (full text) asking the people of the United States:

to observe the Days of Remembrance of Victims of the Holocaust, April 12 through April 19, 2018, and the solemn anniversary of the liberation of Nazi death camps, with appropriate study, prayers and commemoration, and to honor the memory of the victims of the Holocaust and Nazi persecution by internalizing the lessons of this atrocity so that it is never repeated.

New Report On Worldwide Antisemitic Incidents

Yesterday Tel Aviv University's Kantor Center for the Study of Contemporary European Jewry released its 103-page report titled Antisemitism Worldwide General Analysis 2017 .  The Center highlights this excerpt:

In 2017, there was a moderate worldwide average decrease in antisemitic violent incidents that were directed at Jewish people, their communities and their private property, of about 9% (327 cases compared to 361 in 2016, according to the Kantor Center criteria). It does not include yet the numbers of violent incidents in France, which the Jewish security body is still elaborating. During the years 2006 to 2014, the violent cases worldwide numbered between 600 to 700 per year, while during recent years they decreased 300 to 400. But it should be emphasized that some of the recent violent cases have been perpetrated more brutally, causing more harm. And most important – this decrease is overshadowed by what is seen by the Jewish communities as a dramatic increase in all other forms of antisemitic manifestations, many of which are not even reported, most notably harassment in schools (some Jewish pupils moved to Catholic schools) and on social media.

AP reports on the data.

Law Student Religious Liberty Writing Competition Announced

The J. Reuben Clark Law Society has announced its 9th Annual Religious Liberty Writing Competition for law students and graduate students in related areas.  The deadline for submissions is July 1, 2018.

At Hearing Judicial Nominee Retreats From Prior Pro-Life Comments

Yesterday the Senate Judiciary Committee held a hearing on the nomination of Wendy Vitter to be United States District Judge for the Eastern District of Louisiana.  NPR reports on the hearing:

Wendy Vitter, nominated by President Trump for a federal judgeship, tried Wednesday to walk back several controversial comments she made about abortion and birth control.

Questioned by skeptical Democrats at her confirmation hearing, she maintained she could "put aside" her long-held "pro-life" advocacy, and as a judge enforce the Supreme Court's Roe v. Wade decision on abortion rights.

In particular, Vitter sought to distance herself from a brochure she had appeared to endorse while leading a panel at a pro-life conference in 2013. The panel was called "Abortion Hurts Women," and the brochure promoted a variety of unsubstantiated claims linking birth control pills to breast cancer, cervical and liver cancers, and "violent death."

Indiana Homicide Law Expanded To Cover Non-Abortion Killing of Fetus At Any Stage

On March 25, Indiana Governor Eric Holcomb signed Senate Bill 203 (full text).  The new law expands the state's murder and manslaughter laws to include killing of a fetus "at any stage of development".  Prior law covered only killing of a fetus that has attained viability.  The law does not apply to a lawfully performed abortion or to a pregnant woman who terminates her own pregnancy or kills a fetus she is carrying. Liberty Counsel issued a press release on the new law.

Update On Third Travel Ban Developoments

The Supreme Court will hear oral arguments on April 25 in Trump v. Hawaii, a group of challenges, including an Establishment Clause challenge, to President Trump's third travel ban. (See prior posting.) Over 70 amicus briefs have been filed in the case.  Links to them are on SCOTUSblog's case page.  Meanwhile, yesterday the White House announced that the President has signed a Proclamation removing Chad from the list of countries covered by the travel ban, saying in part:

Republic of Chad has improved its identity-management and information sharing practices sufficiently to meet the baseline security standard of the United States.  Chad nationals will therefore again be able to receive visas for travel to the United States.

India Supreme Court Affirms Right To Choose Religion and Marriage Partner

In Jahan v. Asokan K.M., (India Sup. Ct., April 9, 2018), a 3-judge panel of India's Supreme Court, in 61 pages of opinions, set aside a High Court's order that had annulled the marriage of a 26-year old student who had converted to Islam in order to marry. The court strongly affirmed the right of individuals to choose their religious faith and their marriage partner. The court's opinion by Chief Justice Misra said in part

It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression ... destroy the individualistic entity of a person.  The social values and morals have their space  but they are not above the constitutionally guaranteed freedom.  The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible.  Faith of a person is intrinsic to his/her meaningful existence.  To have the freedom of faith is essential to his/her autonomy....

In the case at hand, the father ... may feel that there has been enormous transgression of his right to protect the interest of his daughter but his view point or position cannot be allowed to curtail the fundamental rights of his daughter who, out of her own volition, married the appellant.

A concurring opinion by Justice Chandrachud added:

The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life.... Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity.... Society has no role to play in determining our choice of partners. 

One India and The Hindu report on the decision.

Anti-Transgender Bathroom Initiative Voted Down In Anchorage

Anchorage Daily News reports that in Alaska's first-ever vote-by-mail election, a so-called "bathroom bill" initiative was defeated by Anchorage voters.  The Ballot Measure would have required that all municipally-owned facilities limit restrooms and locker rooms by sex as determined biologically rather than by gender identity.  The initiative would also have permitted other employers and public accommodations to adopt the same policy.  With virtually all ballots counted, the vote as reported last Friday was 40,378 opposed and 36,234 in favor.  Metro Weekly reports on reactions to the defeat.

Trump Cabinet Has Bible Study Group

BBC reports that President Trump's Cabinet has a weekly Bible study group, led by former professional basketball player-turned-pastor, Ralph Drollinger.  While not all Cabinet members attend each week, the group has ten "sponsors". Members of the group include Vice-President Mike Pence, Secretary of State Mike Pompeo, Education Secretary Betsy DeVos, Energy Secretary Rick Perry and Attorney General Jeff Sessions.  Some of the Cabinet members originally got to know Drollinger through his Capitol Ministries study groups in the House and Senate. According to BBC:

President Trump is not a member of Drollinger's group - but he is a Christian, and does get Drollinger's eight-page print-outs most weeks.

"He writes me back notes on my bible studies," says Drollinger.

"He's got this leaky Sharpie felt-tip pen that he writes all capital letters with. 'Way to go Ralph, really like this study, keep it up.' Stuff like that."

[Thanks to Scott Mange for the lead.]

Suit Challenges Limits On Homeless Drop-In Center

In St. Paul, Minnesota last week, Listening House, a daytime drop-in center for homeless, disadvantaged and lonely people, filed suit against the city seeking to prevent enforcement of a City Council resolution imposing unworkable limits on the operation of the center at its new home in the basement of First Lutheran Church.  The complaint (full text) in Listening House of St. Paul, Inc. v. City of St. Paul, (MN Dist. Ct., filed 4/2/2018), contends that the restrictions are arbitrary and capricious.  The Twin Cities Pioneer Press reported yesterday that First Lutheran Church has now joined as a plaintiff in the lawsuit.

Recent Articles of Interest

From SSRN:

• Mary Nobles Hancock, God Save the United States and this Honorable County Board of Commissioners: Lund, Bormuth, and the Fight Over Legislative Prayer, (76 Wash. & Lee L. Rev. (2019 Forthcoming)).
• Jonathan Moreno, Church Attendance, Petty Crime and Rain, (March 29, 2018).
• Steve Sanders, Dignity and Social Meaning: Obergefell, Windsor, and Lawrence as Constitutional Dialogue, (Fordham Law Review, Forthcoming).
• Shawn Fields, Brief of Amici Curiae Constitutional Law Scholars in Support of Respondents in Trump V. Hawaii, 17-965, (San Diego Legal Studies Paper No. 18-340 (2018)).
• Steve Sanders, Pavan v. Smith: Equality for Gays and Lesbians in Being Married, Not Just in Getting Married, (American Constitution Society Supreme Court Review 2016-2017).
• Timothy Horley, Rethinking the Heckler's Veto After Charlottesville, (Virginia Law Review, Vol. 104, No. 8, 2018).
• L.A. Latif, An Explication on Broadening the Definition and Scope of Maximum Available Resources Under General Comment 14 of the ICESCR to Include Islamic Taxation in Financing the Right to Health, (Biomed J Sci & Tech Res 1(3), 2017).

From elsewhere:

• Camilia R. Brown, The Violent Persecution of the Iranian Bahá’í: A Call to Take a Human Capabilities Approach to Defining Genocide, 43 Brooklyn Journal of International Law 361 (2018).

Recent Prisoner Free Exercise Cases

In Ackridge v. Aramark Correctional Food Services, 2018 U.S. Dist. LEXIS 54733 (SD NY, March 30, 2018), a New York federal district court in a lengthy opinion, while dismissing numerous claims, allowed a Jewish inmate to move ahead on his free exercise claim for delay in receipt of kosher meals and lack of regular Jewish religious services. The opinion includes a lengthy analysis of the state action doctrine as applied to the prison's food service contractor.

In Seamons v. Ramirez, 2018 U.S. Dist. LEXIS 55348 (D ID, March 30, 2018), an Idaho federal magistrate judge dismissed an inmate's complaint that, while in administrative segregation, he was limited to possessing no more than the five books and was not provided with regular, in-person, clergy visits.

In DePaola v. Clarke, 2018 U.S. Dist. LEXIS 55925 (WD VA, March 30, 2018), a Virginia federal district court allowed a Muslim inmate to move ahead with his claim that he was punished with reduced privileges for failing to shave his beard for religious reasons with no barbering services available to trim it, and that he was deprived of attending Jum'ah services or watching them on television.

In Allen v. Kunkel, 2018 U.S. Dist. LEXIS 56249 (D CT, April 2, 2018), a Connecticut federal district court allowed a Moorish-American inmate to move ahead with his complaint regarding denial of access to a particular book and refusal to allow him to purchase a fez.  It dismissed his claim that he was denied the right to choose his nationality under the Universal Declaration of Human Rights.

In Rickman v. Martin, 2018 U.S. Dist. LEXIS 55624 (WD MI, April 2, 2018), a Michigan federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 56828, Feb. 21, 2018) and allowed a Hebrew-Israelite inmate to move ahead with complaints that his request for a religious diet was denied as was his request to purchase a kufi and Star of David pendant.

In Hall v. Annucci, 2018 U.S. Dist. LEXIS 57317 (ND NY, April 4, 2018), a New York federal district court allowed a Muslim inmate to move ahead with his amended complaint that contends he was served meals that do not comply with requirements for Halal food.

In McLendon v. Montgomery County Jail, 2018 U.S. Dist. LEXIS 58365 (MD TN, April 5, 2018), a Maryland federal district court allowed an inmate to move ahead with 1st and 8th Amendment claims against a jail chaplain contending that plaintiff was not furnished nutritionally adequate meals that complied with his religious diet.

In Allen v. Holt, 2018 U.S. Dist. LEXIS 58362 (MD TN, April 5, 2018), a Tennessee federal district court held that inmates have not alleged a substantial burden on free exercise by alleging that during religious services in their housing pod the television is on at high volume and inmates not attending the service are out of their cells talking loudly.

In Larry v. Goldsmith, 2018 U.S. Dist. LEXIS 59100 (ED WI, March 30, 2018), a Wisconsin federal district court allowed a Muslim inmate to move ahead with his complaint that officers prevented him from praying on one ocassion during
Ramadan, but dismissed for failure to exhaust administrative remedies his complaint that he was not allowed to have his meals during Ramadan later in  the day.

In Wells v. Gonzales, 2018 U.S. Dist. LEXIS 59198 (ED CA, April 6, 2018), a California federal magistrate judge recommended that a Native American inmate be allowed to move ahead with his complaint that a correctional officer confiscated and handled disrespectfully a native spiritual totem of Plaintiff's which was on display for Native Heritage Month. He also can pursue retaliation claims against defendant.  UPDATE: The court adopted the magistrate's recommendation at 2018 U.S. Dist. LEXIS 120099, July 17, 2018.

Fired Magistrate Has Due Process But Not Equal Protection Claim

In Edelstein v. Stephens, (SD OH, March 31, 2018), an Ohio federal district court adopted in part and rejected in part a magistrate's recommendations and held that a magistrate/ staff attorney who was fired after she requested eight days off for Jewish holidays had failed to allege an equal protection violation. However, the court concluded that plaintiff had adequately alleged a due process violation in her claim that her employment was terminated in a manner that "created the impression that Plaintiff had committed a serious violation of procedure, law or ethics and devastated Plaintiff's reputation in the legal community."

Challenge To Teaching Islam In History Curriculum Is Rejected

In Wood v. Arnold, (D MD, March 26, 2018), a Maryland federal district court dismissed a lawsuit by a high school graduate and her father complaining (1) that the school violated the Establishment Clause by teaching Islam in its World History course; (2) violated the student's free speech rights by requiring her to "confess" the Shahada; and (3) engaged in retaliation and suppression of speech in banning the student's father from school grounds after he expressed opposition to the school's curriculum. Summarizing its holding, the court said:

the First Amendment does not afford the right to build impenetrable silos, completely separating adherents of one religion from ever learning of beliefs contrary to their own, Nor, in this Court's view, does it prohibit a high school teacher from leading a purely academic study of a religion that may differ from the religious beliefs of some of his students.

Plaintiffs' Establishment Clause argument centered on a statement made by the World History teacher that "most Muslims faith is stronger than the average Christian". The court rejected plaintiffs'argument that the statement should be taken in isolation from the remainder of the curriculum, but concluded that even taken alone the statement, in the context it was made, did not violate the Establishment Clause.

Rejecting plaintiffs' compelled speech argument, the court held that requiring students to fill in the blanks in a quiz on the Shahda was merely aimed at fostering an understanding of the significance of the statements to Muslims.

Finally the court rejected the father's complaint about his exclusion from school grounds, finding that the father's statements on Facebook suggested that he was planning to cause disruption at the school.

Settlement Reached With NYPD In Muslim Surveillance Case

Last week, a settlement agreement (filed in New Jersey federal district court on April 5) (full text) was reached in Hassan v. City of New York. As reported by the New York Times, this settles the last of three major lawsuits challenging the New York City Police Department's surveillance of the Muslim community following 9/11. This suit was brought by Muslims in New Jersey who had been subjects of surveillance.  The 3rd Circuit had refused to dismiss, holding that plaintiffs had adequately stated free exercise and equal protection claims (See prior posting.)  A press release from Muslim Advocates summarizes agreement:

Under the terms of the settlement, the NYPD has confirmed it will reform its discriminatory and unlawful practices by agreeing to:

• Not engage in suspicionless surveillance on the basis of religion or ethnicity;
• Permit plaintiff input to a first-ever Policy Guide, which will govern the Intelligence Bureau’s activities, and to publish the Guide to the public;
• Attend a public meeting with plaintiffs so they can express their concerns about the issues in the lawsuit directly to the NYPD Commissioner or senior ranking official;
• Pay businesses and mosques damages for income lost as a result of being unfairly targeted by the NYPD and pay individuals damages for the stigma and humiliation harms they suffered for being targeted on the basis of their religion.

Break-Away Texas Anglican Group Loses In Latest Round of Long-Running Case

In The Episcopal Church v. Salazar, (TX App, April 5, 2018), a Texas state appeals court issued another ruling in a long running dispute over ownership of property of the Episcopal Diocese of Fort Worth. In 2008, the Diocese voted to disaffiliate from The Episcopal Church and to become part of the Anglican Province of the Southern Cone. In 2009, The Episcopal Church sued claiming ownership of the Diocese's property. The litigation has moved up and down the Texas court system, including to the Texas Supreme Court, ever since.  In this week's opinion, the state Court of Appeals reversed in part a trial court decision and held that control of the property resides in the group that remained with The Episcopal Church under the leadership of Bishop Scott Mayer, rather than with the break-away group led by Bishop Jack Iker. The court said in part:

Individual members of a parish may decide to worship elsewhere; a majority of individual members of a parish or diocese may decide to do so. But when they leave, they are no longer “Episcopalians” as identified by TEC; they become something else. And that something else is not entitled to retain property if that property, under the terms of the deed, is held in trust for a TEC-affiliated diocese or congregation. By rejecting TEC, Appellees also rejected any claim to items and property affiliated with TEC or with being a TEC-affiliated diocese to the extent that the instruments of ownership spell out an express interest. While a decision to disaffiliate is an ecclesiastical matter, what happens to the property is not, unless the affairs have been ordered so that the ecclesiastical decisions effectively determine the property issue....

In reaching its decision, the court refused to rely on  The Episcopal Church's Dennis Canon that "purports to impose a trust for TEC and TEC’s diocese on parish, mission, and congregation real and personal property," saying in part:

Because under Texas law, an entity that does not own the property to be held in trust cannot establish a trust for itself simply by decreeing that it is the beneficiary of a trust, the Dennis Canon, by itself, did not establish a trust under Texas law....

The Fort Worth Star Telegram reporting on the decision says that it is likely to be appealed to the Texas Supreme Court.

Fired Mormon City Manger Can Move Ahead Under Title VII Against Some Defendants

In Fuqua v. City of Altus, (WD OK, April 6, 2018), an Oklahoma federal district court allowed the former City Manager of an Oklahoma city to proceed with his Title VII religious discrimination suit against the city and its mayor, but dismissed his claims against two other city officials.  Plaintiff David Fuqua alleges that he was fired from his position because he is a Mormon and because he hired Mormons for the positions of Assistant City Manager and Public Works Director.  The court dismissed two defendants, the Chief Financial Officer and the City Clerk, because they had no formal role in evaluating Fuqua or in the decision to fire him, saying in part:

There is plenty of evidence that they agitated against plaintiff, or for his removal, on the basis of his religion, but there is none that suggests they played some formal role in the City’s dealings with plaintiff. Complaints and gossip, even lots of it, do not arise to the level of involvement necessary to establish the necessary causative link.

New York Budget Bill Passed With Special Curriculum Criteria For Yeshivas

On Monday, the New York legislature sent to Governor Andrew Cuomo for his signature the state Budget for the 2018-2019 fiscal year (S07059) (full text).  As described in detail by New York Jewish Week, the bill contains provisions (at pp. 194-195 of bill) designed to lower the secular curriculum requirements for  Orthodox Jewish yeshivas whose long school days emphasize religious study.  The New York Times explains the politics behind inclusion of the provision, and the varied interpretations of its impact on curriculum standards for such schools.

Suit Over "In Christ" E-Mail Signature Moves Ahead

In Mial v. Foxhoven, (ND IA, April 4, 2018), an Iowa federal district court refused to dismiss Title VII and state religious discrimination claims brought by Michael Mial who had been fired from his position as a security specialist in the Civil Commitment Unit for Sexual Offenders (CCUSO) of the Iowa Department of Human Services.  Mial's dismissal resulted from his insistence on using the valediction "In Christ" on e-mails he sent on his CCUSO e-mail account, in violation of a rule against personal messages in e-mail signatures.  The court found that Mial's signature message was part of his "religious belief that he must proclaim his faith in everything he does." The court rejected CCUSO's claim that  Establishment Clause concerns justified its refusal to offer Mial a reasonable accommodation, saying in part:

there is scant evidence that Mial’s use of “In Christ” at the end of work-related email messages (such as in various requests for shift changes or time off) would lead the public to assume CCUSO was endorsing a religion. 

The court concluded:

[D]efendants have not shown as a matter of law that the Establishment Clause prevented them from offering an accommodation. Nor have they demonstrated, as a matter of law, that Mial’s email valediction caused any disruption in the workplace or violated any neutral, generally applicable rules or procedures. Of course, the jury could decide that Mial’s use of the valediction violated neutral policies about professional conduct and following supervisory directives. If so, then a duty to accommodate may not apply. However, I am not able to reach such a conclusion as a matter of law. Defendants’ motion for summary judgment must be denied.

Arizona Appeals Court Invalidates Hotline Procedure For Overruling Parental Objections To Medical Treatment

In Glenn H. v. Hoskins, (AZ App., April 3, 2018), an Arizona state appeals court invalidated the "hot line" procedure that hospitals in Maricopa County use to obtain emergency orders to treat minors over the religious or other objections of their parents.  In the case, Jehovah's Witness parents objected to the use of blood transfusions in the treatment of their 14-year old son for bone cancer.  Apparently the boy agreed with his parents' decision.  Vacating the trial court's order authorizing medical treatment for the boy, the appeals court concluded that there are no provisions in Arizona statutes permitting courts to rule before a complaint has been filed, adding:

However well-intended the emergency hotline may be, the superior court lacks subject matter jurisdiction to entertain ex parte oral requests in the absence of specific statutory authorization.  See Redewill v. Superior Court, 43 Ariz. 68, 81 (1934) (“A court cannot do something not authorized by law, because it may think it is ‘just as good,’ or even better than the thing which the law does sanction.”)

AP reports on the decision.