Religion Clause

Thursday, May 17, 2018

Injunction Entered Against Obama-Era Contraceptive Mandate

The Trump administration continues to concede that the Obama Administration's version of the contraceptive coverage mandate as applied to religious non-profits violates the Religious Freedom Restoration Act. This week, in Southern Nazarene University v. Azar, (WD OK, My 15, 2018), an Oklahoma federal district court, without objection from defendants, enjoined enforcement of the mandate against four Christian universities. The College Fix reports on the decision.

Suit Filed By Muslim Woman Forced To Remove Hijab For Courthouse Security Inspection

A lawsuit was filed this week in an Oklahoma federal district court challenging the manner in which courthouse security guards dealt with a Muslim woman's objections to removing her hijab after she set off a metal detector. The complaint (full text) in Elqutt v. Regalado, (ND OK, filed 5/15/2018), alleges that the objectionable conduct occurred when Shusha Elqutt entered the Tulsa County Courthouse with her attorney from the Domestic Violence Intervention Services finalize her divorce. Wanding continued to detect metal under Elqutt's hijab. Authorities refused to allow Elqutt to remove her head covering in private in the presence only of a female deputy. Eventually security officials allowed Elqutt to go between two parked cars in the parking lot and have two female deputies inspect her there. Plaintiff contends that this still violated her free exercise rights, arguing:

With only two parked cars for coverage, Ms. Elqutt was forced to crouch down to obtain even the slightest amount of privacy. At any moment, a man could have walked by and seen Ms. Elqutt without her hijab, a fact not lost on her as she squatted, exposed and humiliated, in the middle of the courthouse parking lot.

Oklahoma ACLU issued a press release announcing the filing of the lawsuit.

Doctor Says His Free Exercise Rights Are Infringed By Blocking Him From Assisting Protester

An unusual religious free exercise lawsuit was filed in a Virginia federal district court yesterday by Greg Gelburd, a physician who says that he continually practices his religious belief of providing medical assistance to those in need. The complaint (full text) in Gelburd v. Christiansen, (WD VA, filed 6/16/2018), contends that the U.S. Forest Service is preventing him from providing medical assistance to a "tree sitting" protester who is attempting to block a pipeline from being constructed in the George Washington and Jefferson National Forest. The protester, a woman who has become known as "Nutty", has, for the past six weeks, been preventing pipeline construction by occupying a "monopad" atop a tall pole in the pipeline path. Forest Service employees are attempting to end Nutty's protest by denying her food, water, various services and the ability to communicate with others. Dr. Gelburd claims that his rights under the Religious Freedom Restoration Act and the First Amendment's religion and speech clauses are infringed by the government's actions. The Rutherford Institute issued a press release announcing the filing of the lawsuit.

Wednesday, May 16, 2018

Two Appointments Made To USCIRF

The U.S. Commission on International Religious Freedom yesterday announced two appointments to the Commission. On May 10, House Minority Leader Nancy Pelosi reappointed Dr. Tenzin Dorjee, who had been initially appointed to USCIRF in December 2016. Dorjee, a Professor in Human Communications Studies at California State University, Fullerton, is also an expert on Tibetan culture.

It was also announced that on May 14, Senate Majority Leader Mitch McConnell appointed Tony Perkins as a Commissioner. Perkins has served as President of the Family Research Council since 2003. Before that he served in the Louisiana legislature. A post at Friendly Atheist Blog strongly criticizes Perkins' appointment.

British Court Sentences Former Army Officer Over Anti-Semitic Speech

From England, The Independent reported yesterday that right-wing activist Jeremy Bedford-Turner was sentenced by the Southwark Crown Court to one year in jail after a jury convicted him of stirring up racial hatred in violation of the Public Order Act1986. The charges stem from a 15-minute long virulently anti-Semitic speech that Bedford-Turner gave in July 2015 in central London. The speech, opposing the Shomrim Jewish civilian patrol group, called for Britains to "free England from Jewish control." Bedford-Turner, who previously served 12 years in the British army, was given a standing ovation by 35 of his supporters in the court room after he was sentenced. Britain's Campaign Against Anti-Semitism (CAA) has criticized the Crown Prosecution Service for its initial decision not to prosecute Bedford-Turner, a decision reversed only after CAA challenged the decision in court.

Native Americans Sue To Keep Use of Prayer Ground

On Monday, a suit was filed in New Jersey federal district court on behalf of the Native American Ramapough Lenape Nation claiming that local officials along with a neighboring housing association are attempting to prevent the Ramapoughs from using their own prayer ground for religious activities. (See prior related posting.) The complaint (full text) in Ramapough Mountain Indians, Inc. v. Township of Mahwah, (D NJ, filed 5/14/2018), alleges in part:

Defendant Township of Mahwah is imposing cumulative crippling fines against plaintiff Ramapough of $12,500 per day, totalling $480,000 as of May 14, 2018, to end religious use of property, to eliminate sacred sites, and prevent assembly.

... By letter dated September 5, 2017 Mahwah sent a letter purporting to revoke a 2012 zoning permit that it failed to disclose to Ramapough or State Courts recognizing religious use and logs with masks carved in them ... unilaterally and secretly without notice nor opportunity to be heard.

... Defendant Polo Club, in furtherance of this campaign to pressure the Ramapough Nation into ceasing its religious practices, to assemble and in fact to yield up the land, has made numerous unfounded complaints to the police department and used the New Jersey municipal "private warrant" process to bring criminal charges against Ramapough members.

Plaintiffs claim that these actions violate their 1st and 14th Amendment rights, RLUIPA and international treaties. Courthouse News Service reports on the lawsuit.

State Department Says Controversial Pastor Was Invited By Ambassador

As previously reported, one of the pastors who delivered an invocation at yesterday's opening of the U.S. Embassy in Jerusalem was Robert Jeffress, who had made controversial statements in the past about Catholics, Jews, Mormons and various other religious groups. At a news conference yesterday (full text), State Department spokesperson Heather Nauert was asked about the decision to invite Jeffress. Here is part of her exchange with a reporter:

QUESTION: Do you have any further explanation for why it was that Pastor Jeffress was chosen to participate in the ceremony given his past controversial comments?

MS NAUERT: I can just tell you that Ambassador Friedman, I know, was looking at a variety of people to be a part of the service or the ceremony, and that’s who was invited. I don’t have anything more for you on that.

QUESTION: Was the State Department aware of some of his past comments regarding specifically Mormonism, Islam, Muslim, and --

MS NAUERT: We certainly would not agree with --

QUESTION: -- Jewish --

MS NAUERT: -- his assertions. We would certainly not agree with the pastor’s remarks, some of his controversial remarks that he has made about various religious groups, but he was chosen by Ambassador Friedman, who was certainly welcome to do so, and made that decision.

QUESTION: Well, wait, so that means that if not – even though you don’t agree with those comments, you might say that they’re wrong or what – I don’t know what term you would use --

MS NAUERT: I think I was just pretty clear. I said we do not agree with his opinion.

QUESTION: But – so that’s not disqualifying to be – I mean, does this – is this the embassy of the United States of America or is it basically Ambassador Friedman’s embassy?

MS NAUERT: As we have seen before – I seem to recall not too long ago that there was another embassy that made some decisions – embassies certainly have their free will sometimes to make decisions about who they want to bring in as guest lecturers or people to lead a ceremony or some sort of a celebration. To my knowledge, we did not have any role in making that decision, but --

QUESTION: Okay.

MS NAUERT: Not that we asked to. I just – I’m not aware if we had any decision-making --

QUESTION: Okay. So I just want to make sure I understand. So this is the equivalent – you’re saying it’s kind of like the equivalent of the Berlin situation?

MS NAUERT: I’m not saying that. I’m just saying that embassies and people around the world bring in lots and lots of people who have various opinions. Okay?

Therapist Sues After Dismissal For Refusing To Counsel Gay Couple

A religious discrimination lawsuit was filed last week in Michigan federal district court by a licensed clinical social worker against her former employer, HealthSource Saginaw. The complaint (full text) in Lorentzen v. Healthsource Saginaw, Inc., (ED MI, filed 5/11/2018) alleges that Kathleen Lorentzen was informed that she would be terminated, and was subjected to demeaning, threatening and abusive actions, after she insisted on referring a same-sex couple to a different therapist for marriage counseling. Lorentzen says that continuing to counsel the couple would violate her Catholic religious beliefs. The complaint alleges violations of Title VII and of various state law provisions. Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Tuesday, May 15, 2018

Ramadan Begins

According to Al Jazeera, Ramadan begins tonight in the United States and Europe where Muslim communities rely on astronomical calculations. In Muslim countries, the start of Ramadan is determined by actual moon sightings rather than by previous calculations. Thus Ramadan will begin tomorrow evening in some Middle Eastern and Asian nations. (The National). EarthSky explains the impact of geographical location on moon sighting.

USCIRF Denounces China's Crackdown on Uighurs; State Department Focuses On Yemen's Persecution of Bahais

The U.S. Commission on International Religious Freedom issued a press release yesterday denouncing China's increasing crackdown on Uighur Muslims. It said in part:

In addition to longstanding restrictions on Uighur Muslims’ religious practice during Ramadan—such as preventing Uighurs from fasting and praying—the Chinese government has instituted a multifaceted security grid throughout Xinjiang comprised of both personnel and advanced technology, including armed checkpoints, facial and iris recognition software, and cell phone monitoring. Moreover, the Chinese government seeks to stymie the growth of the next generation of Uighur Muslims by banning Uighur language instruction in schools, prohibiting children from attending mosque, and proscribing Islamic baby names considered “extreme.”

Meanwhile yesterday the State Department issued a press release denouncing harassment of Baha'is by the Houthi leaders in Yemen.

British Musician On Trial For Holocaust Revsionist YouTube Postings

Press Association reported yesterday on the trial in Britain of musician Alison Chabloz who is charged with sending grossly offensive Holocaust Revisionist material on a public communications network. Chabloz, who is being tried in the Westminster Magistrates’ Court, is charged with 5 counts growing out of her posting on YouTube of videos of three songs she wrote. Chaboz's attorney is raising a free speech defense. The judge's verdict will be handed down on May 25. Meanwhile Chaboz is out on bail.

Consent Decree Settles Louisiana Religion In Schools Lawsuit

Last week, a Louisiana federal district court approved a consent decree (full text) in Cole v. Webster Parish School Board, (WD LA, May 11, 2018). The suit charged that the school district extensively promoted Christianity in its schools. (See prior posting.) The consent decree bars prayers at school events, bars religious baccalaureate services, prohibits holding school events at religious venues and bars school officials from promoting their personal religious beliefs to students in class or at school events. ACLU issued a press release announcing the consent decree.

Monday, May 14, 2018

Civil Rights Commission Holds Hate Crimes Briefing

The U.S. Commission on Civil Rights last Friday held a public briefing titled "In the Name of Hate: Examining the Federal Government’s Role in Responding to Hate Crimes." The briefing's scope was described (Meeting Notice) (List of Panelists) in part as follows:

The Commission will examine best practices for local law enforcement on collecting and reporting data, and the role of the Education and Justice Departments in prosecution and prevention of these heinous acts. Commissioners will hear from local law enforcement and federal government officials, experts, academics, advocates, and survivors of hate.

Video of the day-long briefing is available online: (Morning Session; Afternoon Session; Public Comment). [Thanks to Michael Lieberman for the lead.]

Controversial Baptist Pastor To Open Ceremony Dedicating U.S. Embassy In Jerusalem

The Trump Administration has chosen controversial Baptist pastor Robert Jeffress to deliver the opening prayer in today's ceremony marking the move of the U.S. Embassy in Israel from Tel Aviv to Jerusalem. (WFAA News). As reported by Mother Jones, Jeffress, who is a supporter and informal faith adviser to President Trump, has made incendiary statements about non-Christian religions:

Jeffress, who runs the First Baptist Dallas megachurch in Texas, has referred to both Islam and Mormonism as “a heresy from the pit of hell.” He believes Islam, Mormonism, Hinduism, and Buddhism are all cults, and that Catholicism represents the “genius of Satan.” Jews, he believes, are going to hell. “You can’t be saved by being a Jew,” he’s said. Islam, he said, “is a religion that promotes pedophelia, sex with children.”

UPDATE: Here is a video of the full ceremony in Jerusalem. Pastor Jeffress' invocation is at 17:25 on the video, followed by an invocation by Chabad Rabbi Zalman Wolowik. The benediction at 1:12:03 on the video was offered by controversial Pastor John Hagee, evangelical founder of Christians United for Israel.

Sunday, May 13, 2018

Story Recounts Personal Side of Court-Ordered Medical Treatment of Child

The Cleveland Plain Dealer today has a lengthy account of the personal emotions involved in a court clash between parents and doctors over the treatment of a 14-year old girl with a brain tumor. The story details the difficult decisions involved where parents, who are Moorish-Americans, want, consistent with their religious beliefs, to use herbal treatment instead of chemotherapy on the inoperable tumor.

Recent Prisoner Free Exercise Cases

In Hammock v. Pierce, 2018 U.S. Dist. LEXIS 76797 (SD NY, May 7, 2018), a New York federal district court allowed a Nation of Islam inmate to move ahead with his complaint that his cassette tapes containing NOI teachings were confiscated when his cell was searched.

In Gwyn v. Booker, 2018 U.S. Dist. LEXIS 77119 (WD VA, May 7, 2018), a Virginia federal district court dismissed an inmate's complaint that authorities refused to approve meetings for inmates of the Apostolic faith, separate from multi-denominational Protestant services.

In Wells v. McKoy, 2018 U.S. Dist. LEXIS 77516 (ND NY, May 7, 2018), a New York federal magistrate judge recommended dismissing complaints by plaintiffs that the Nation of Islam community was not allowed to select the inmates who would prepare the meals served during Ramadan, and that they were served food during Ramadan that did not meet NOI dietary restrictions.

In Harris v. Food Supervisor Carlock, 2018 U.S. Dist. LEXIS 77983 (CD IL, May 9, 2018), an Illinois federal district court allowed an inmate to move ahead with his claim that he was denied his religious vegan diet for an eight day period.

In Hammer v. Smith, 2018 U.S. Dist. LEXIS 80169 (WD VA, May 10, 2018), a Virginia federal district court dismissed, without prejudice, a civil detainee's claim that state hospital policy violated his free exercise rights by denying him "the right to enter into holy matrimony".

Friday, May 11, 2018

Education Department Considering Expanding Faith-Based Insitutions' Eligibility For Grants

As part of its Spring 2018 regulatory agenda released on Wednesday, the U.S. Department of Education signaled that it is considering rule amendments to expand the eligibility of faith-based institutions for federal grants. In a release titled Eligibility of Faith-Based Entities and Activities, DOE said:

Various provisions of the Department’s regulations regarding the eligibility of faith-based entities to obtain grants from the Department or to participate in State-administered programs and the activities that they may perform unnecessarily restrict participation by religious entities in the Department’s grant programs by including requirements specific to such entities. The Department plans to review and to amend or rescind such regulations in order to be consistent with current law and to reduce or eliminate unnecessary burdens and restrictions on religious entities and activities.

According to the New York Times, the proposals are an attempt to align DOE rules regarding religious colleges and universities with the Supreme Court's 2017 Trinity Lutheran decision. [Thanks to Scott Mange for the lead.]

Indonesia Sentences Christian Man To 4 Years For Facebook Post Urging Conversion

According to World Watch Monitor and the Jakarta Post, in Indonesia on Monday a Christian cleric was sentenced to 4 years in prison and a fine equivalent to $3,565(US) for religious discussion on a video he posted online. Abraham Ben Moses, a convert from Islam, was convicted of violating the Electronic and Information Transactions Law No. 11/2008 by intentionally spreading information intended to incite hatred against an individual or group based on religion. According to the Post:

Abraham was known for recording his conversations with an online taxi driver identified only as Supri.

In a video he uploaded to his Facebook account, Abraham quoted a Quran verse about marriage and tried to convince the driver to convert to Christianity.

Muslim Woman Sues Over Forcible Removal of Hijab At California Jail

CAIR-LA announced yesterday that it has filed a federal lawsuit on behalf of a Muslim woman who had her hijab forcibly removed by Ventura County, California deputy sheriffs. The incident occurred at the county jail after Jennifer Hyatt was arrested because of her involvement in a domestic dispute. Even after she had been searched, deputies refused her request to wear her hijab when men were present, and instead violently pulled off the second part of her two-piece hijab.

Texas' Highest Criminal Court Upholds Law Punishing Sexual Assault By Polygamists More Harshly

In Estes v. State of Texas, (TX Ct. Crim. App., May 9, 2018), the Texas Court of Criminal Appeals, reversing the Court of Appeals, upheld the constitutionality of a Texas statute that provides higher penalties for polygamists who sexually assault their purported spouses than for other sexual assaults. Defendant argued that the statute had the effect of treating married people more harshly than others. The majority held that where, as here, the assault victim was a minor, it is enough that the state had a rational basis for the distinction it drew, saying in part:

[T]he Legislature could rationally conclude that to be a married man or woman is to project the kind of “stability” and “safe haven” that many children find comfort in.... And it could rationally see fit to declare that one who would enjoy this marital perception of trustworthiness will be punished all the more severely if he uses it to groom, and then sexually abuse, a child.

Judge Newell, joined by Judges Hervey and Richardson, filed a separate opinion concurring in part and dissenting in part, saying:

[W]hile I ultimately agree with the Court that the legislative classification is rationally related to a legitimate state interest, I disagree with the Court’s chosen path to that result....

The State’s interest in protecting children does not explain why a legislative distinction between married and unmarried defendants is rational. It only serves to make the State’s argument supporting that distinction look more substantial....

Ultimately, the resolution of this case turns upon the level of scrutiny we must apply in our evaluation of the statute at issue. Does strict scrutiny apply because the distinction between married and unmarried offenders significantly interferes with the fundamental right to marry? Rather than remand the case to the court of appeals to decide the issue, I would address the issue head-on. The answer is no.

Judge Alcala dissented without filing a separate opinion.

Thursday, May 10, 2018

Gayle Manchin Appointed To USCIRF

Last week, the U.S.Commission on International Religious Freedom issued a press release announcing the recent appointment of Gayle Conelly Manchin as a member of the Commission. She was appointed on April 19 by Senate Democratic Leader Charles E. Schumer. Manchin, who is the wife of West Virginia Senator Joe Manchin, has previously served as a member of the West Virginia State Board of Education and director of AmeriCorps Promise Fellows in West Virginia. She was West Virginia's First Lady from 2005- 2010.

Islamic School Consultant Files Religious Freedom Lawsuit Over Impediments To Its Purchase of Property

WFJM News reported yesterday on a federal court lawsuit filed last month by a consulting firm for Islamic schools over impediments placed in its way as it attempted to purchase a now-vacant 150 acre site in Shenango Township, Pennsylvania from the state. The property, containing 13 building, was formerly used to provide rehabilitative services and housing for juvenile offenders. Plaintiff intended to use the site in part for a youth intervention center and partly for an Islamic boarding school. The complaint (full text) in HIRA Educational Services of North America v. Augustine, (WD PA, filed 4/13/2018), alleges that local residents were unhappy that the property was being sold to an Islamic institution. At a community meeting, a representative of an advocacy organization opposing the sale falsely claimed that the property would be used as a center for thousands of refugees. State and local officials took a variety of elaborate steps to block the sale, making it impossible for the purchaser to obtain financing for the property. The lawsuit contends that actions by officials to prevent the purchase imposed a substantial burden on religous exercise in violation of RLUIPA, the Pennsylvania Religious Freedom Protection Act and federal civil rights laws.

Ecclesiastical Abstention Doctrine Requires Dismissal of Priest's Defamation Suit

In Diocese of Palm Beach, Inc. v. Gallagher, (FL App., May 9, 2018), a Florida state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a defamation suit brought by a Catholic priest against the diocese in which he served. Father John Gallagher was not offered the position of pastor at Holy Name Church, and was reassigned. He rejected the transfer and instead took a leave, contending that the reassignment was punishment for his attempt to expose inadequacies in the way in which the diocese handled sexual abuse claims. In response to his going public with these charges, diocese officials made comments that led to Gallagher's lawsuit. As related in the court's opinion:

Father Gallagher claimed the diocese defamed him in newspaper articles, letters to parishioners which were read at masses, press statements posted on the diocese webpage, electronic mail among diocese personnel, and postings on diocese personnel’s social media. These statements, Father Gallagher alleged, defamed him by calling him a liar, unfit to be a priest, and in need of professional help.

Rejecting the trial court's conclusion to the contrary, the Court of Appeals held:

[T]o, to resolve Father Gallagher’s actual damages claim, the courts would have to determine whether the diocese’s reasons for not making him a pastor, and reassigning him to another church, were valid religious reasons concerning Father Gallagher’s fitness for the job, or retaliation for Father Gallagher’s whistleblowing.... [W]e would be required to weigh the effect of Father Gallagher’s problems with his Hispanic congregants on the advisory committee’s decision to pass over Father Gallagher for the position of pastor, and whether this was a valid religious reason for the diocese’s decision.....

We are not permitted to look behind the diocese’s ministerial employment decision because doing so would necessarily entangle us in questions about the religious reasons why Father Gallagher was not promoted under canonical law.

Daily Business Review reports on the decision.

German Labor Court Upholds Ban On Primary School Teacher Wearing Hijab

In 2015, Germany's Constitutional Court invalidated a blanket ban on Muslim teachers wearing the hijab (head scarf) while teaching. However it held that hijabs could be banned in individual cases where a concrete danger is posed. (See prior posting.) Yesterday a labor court judge in Berlin upheld the city's neutrality law that prohibits all religious clothing for public school teachers, police officers and judicial employees, saying that it does not violate a teacher's constitutional right to religious freedom. The ruling came in the case of a primary school teacher who asserted the right to wear a hijab. Justice Arne Boyer ruled that neutrality takes precedence over free religious expression. A court spokesman clarified the ruling, saying that while primary school children should be free of the influence that can be exerted by religious symbols, the teacher could could continue to wear her hijab while teaching older students in a public secondary school. Deutsche Welle and PressTV report on the decision.

Wednesday, May 09, 2018

University of Michigan Sued Over Anti-Bias Rules

A lawsuit was filed yesterday in Michigan federal district court against the University of Michigan challenging provisions in its disciplinary code prohibiting harassment, bullying and bias-related conduct, and enforcement of these provisions by the University's Bias Response Team. The lawsuit contends that the "amorphous prohibitions" in the conde "profoundly chill free speech and open discourse." The complaint (full text) in Speech First, Inc. v. Schlissel, (ED MI, filed 5/8/2018), alleges in part:

The University’s definitions of “bias” encompass countless instances of protected speech and expression on all manner of topics. Under the plain text of these definitions, a student may be deemed to have acted with “bias” if, for example, she gives a speech sharply criticizing the Catholic Church and its adherents for not allowing women to become priests; this student has expressed a “negative opinion” or “attitude” about a certain group of people based on their “cultural experience” of religion....

The mere existence of the BRT mechanism chills protected expression even apart from any punishments that may result at the end of the process. The University has created and promoted a system in which students can file anonymous reports of “bias” under an amorphous definition based on anything that harms their “feelings,” which will then lead a team of University officials to spring into action to investigate. Students voicing controversial or unpopular opinions, or seeking to engage in humor, satire, or parody, may credibly fear that the BRT will be summoned in response to their speech and that they will be forced to defend themselves against accusations of “bias.”

The College Fix reports on the lawsuit.

EEOC Sues Company Over Refusal To Accommodate Muslim Women Employees' Dress Requirements

The EEOC announced this week that it has filed a Title VII lawsuit against Washington-state based Aviation Port Services, a provider of support services to airlines. The company fired six Muslim female passenger service agents at its Boston location for violating a requirement that they wear company-provided pants or knee-length skirts at work. It refused to accommodate the women's religious obligation to wear long skirts instead.

11th Circuit: Challenge To City's Approval of Chabad Building Is Moot

In Gagliardi v. TJCV Land Trust, (11th Cir., May 7, 2018), the U.S. 11th Circuit Court of Appeals dismissed as moot an Establishment Clause challenge to Boca Raton, Florida's zoning approval for a Chabad religious center. Plaintiffs claimed that the city gave preferential treatment to Chabad when it amended its zoning ordinances to accommodate the Jewish organization's building plans. Because a state court had already invalidated the building project on other grounds, the federal appeals court dismissed the case, saying in part:

We have indisputable evidence that this project is over. And the complaint has offered not the slightest suggestion that a new Chabad project is in the works or being considered now by the City’s employees. As we see it, this is a textbook case for mootness.

Tuesday, May 08, 2018

New Report Quantifies Anti-Semitism On Twitter

The ADL yesterday released a new report titled Quantifying Hate: A Year of Anti-Semitism on Twitter (full text). It reports:

at least 4.2 million anti-Semitic tweets were shared or re-shared in English on Twitter over the 12-month period ending January 28, 2018. Those 4.2 million tweets were sent from an estimated three million Twitter handles.

[Thanks to Scott Mange for the lead.]

Suit Seeks To Remove "So Help Me God" From Citizenship Oath

According to a press release yesterday from the Raelian Movement, a French national living in Massachusetts who is seeking to become a U.S. citizen has filed suit in federal district court seeking to have the phrase "So help me God" stricken from the citizenship oath. Olga Paule Perrier-Bilbo is an atheist and says that the required oath violates her religious free exercise rights. Perrier-Bilbo is represented by activist Michael Newdow who has filed suits in the past seeking to have mention of God removed from currency, the Pledge of Allegiance and the Presidential oath.

Monday, May 07, 2018

Kansas, Oklahoma Pass Bills Protecting Religious Beliefs of Adoption Agencies

As reported by AP, last week both the Kansas an the Oklahoma legislatures approved bills allowing faith-based social service agencies to provide adoption services consistent with their religious beliefs. Wichita Eagle had this report on Kansas SB 284 (legislative history) (full text):

A bill that ensures faith-based adoption agencies can turn away gay and lesbian couples based on religious beliefs will be signed into law by Gov. Jeff Colyer....

The Senate approved the bill 24-15 at 1:51 a.m. Friday after the House passed it Thursday night, 63-58. The bill had been dormant for weeks before lawmakers revived and passed it in a matter of hours....

The bill doesn’t apply to organizations that contract directly with DCF [Kansas Department of Chidren and Families], allowing DCF to prohibit discrimination in placements. Agencies that refuse to place children with LGBT couples can continue to receive reimbursement from the state if they are making placements on behalf of a DCF contractor.

The Oklahoma bill, SB 1140 (legislative history) (full text) covers both adoption and foster care placement by agencies that act in accordance with their "written religious or moral convictions or policies." However agencies may not refuse any services for children in custody of the state Department of Human Services. Gov.Mary Fallin has not said whether she will sign the bill.

UPDATE: On May 11, Gov. Fallin signed SB 1140, but also ordered the Department of Human Services to publish a list of Oklahoma adoption and foster agencies on its website who are willing to serve everyone who meets the Department's criteria for being a foster or adoptive parent. (Press release from Governor's office.)

Church Testimony To Liquor Board Did Not Violate Establishment Clause

In Clarke v. Goodson, 2018 U.S. Dist. LEXIS 74419 (MD AL, May 1, 2018), and Alabama federal magistrate judge recommended dismissing an Establishment Clause challenge to Pike County, Alabama's denial to plaintiffs of a license for the sale of beer and wine at their restaurant. Plaintiffs contended that it was a violation of the Establishment Clause for the Alcoholic Beverage Control Board to allow officials of a nearby church to testify in opposition to granting of the license.

[T]he law is settled that the "protect[ion] of churches and schools from disruption associated with liquor serving establishments" is a valid secular purpose.... Moreover, ... the Defendants' conduct would arguably have violated the Establishment Clause, if the Defendants had refused to allow citizens to speak in opposition to the Plaintiff's application on the basis of those individuals' affiliation with the church.

Sunday, May 06, 2018

Recent Prisoner Free Exercise Cases

In Warner v. Friedman, 2018 U.S. Dist. LEXIS 70564 (ND CA, April 26,2018), a California federal district court allowed a Jewish inmate to move ahead with claims of violation of a settlement agreement reached in his prior litigation regarding a kosher diet.

In Wilkins v. Macomber, 2018 U.S. Dist. LEXIS 70586 (ED CA, April 26, 2018), a California federal magistrate judge dismissed an inmate's complaint regarding access to kosher meals and Jewish religious services, but with an an opportunity to amend his complaint to clarify his allegations as to religious services.

In Long v. California, 2018 U.S. Dist. LEXIS 72460 (ED CA, April 30, 2018), a California federal magistrate judge rejected a civil detainee's claim that anyone who follows Jesus Christ should be allowed to rule over the world, and his request to be released so he can do so. UPDATE: a federal magistrate udge likewise recommended dismissal of an amended complaint at 2018 U.S. Dist. LEXIS 78495 (May 9, 2018).

In Nelson v. Hjorth, 2018 U.S. Dist. LEXIS 73825 (D NE, May 2, 2018), a Nebraska federal district court allowed a pre-trial detainee to move ahead with her complaint that she was denied access to newspaper and magazine subscriptions, but dismissed her complaint that religious and spiritual publications are banned and that inmates attending Protestant Bible study are not allowed to attend Catholic religious services.

In Rafiq v. United States, 2018 U.S. Dist. LEXIS 73771 (WD LA, April 30, 2018), a Louisiana federal magistrate judge gave a Muslim inmate 30 days to amend his complaint to cure pleading deficiencies. The suit complains of access to clergy, religious classes, congregate worship and Ramadan observance, and of favoritism to Christianity in holiday decorations.

In Smith v. Davis, 2018 U.S. Dist. LEXIS 75567 (D WV, May 4, 2018), a West Virginia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 75795, April 10, 2018), and dismissed a Muslim inmate's complaint that he was not served hot meals on three days during Ramadan.

In Mayo v. Cameron, 2018 U.S. Dist. LEXIS 75822 (WD PA, May 2, 2018), a Pennsylvania federal magistrate judge recommended dismissing a Baptist inmate's complaint that he was not permitted to purchase a Crucifix because it was identified as a Catholic religious article.

Saturday, May 05, 2018

Trump's Faith Initiative Executive Order Has Rescinded Protections For Clients Objecting To Religious Provider

As previously reported, on May 3 President Trump signed an Executive Order on the Establishment of a White House Faith and Opportunity Initiative. As reported by JTA, buried in that order is repeal of a previous provision that required religious social service providers using federal grant funds to refer a client to an alternative provider if the client objected to the religious character of the original provider. That referral requirement was added in 2010 by President Obama in Executive Order 13559 which amended Executive Order 13279 (2002). The most recent change was effected by the following language in Sec. 2(b) of President Trump's recent Executive Order:

Executive Order 13279, as amended, is further amended by striking section 2(h) and redesignating sections 2(i) and 2(j) as sections 2(h) and 2(i), respectively.

Friday, May 04, 2018

Oklahoma Legislature Passes 10 Commandments and "Stand Your Ground" In Church Laws

This week, the Oklahoma legislature sent two bills to Gov. Mary Fallin for her signature. HB 2177 authorizes the display of the Ten Commandments and other historical documents on public property. The bill (full text) provides in part:

Every county, municipality, city, town, school or any other political subdivision is authorized to display, in its public buildings and on its grounds, replicas of historical documents including, but not limited to, the Ten Commandments, Magna Carta, Mayflower Compact, Declaration of Independence, United States Constitution, Bill of Rights, Oklahoma Constitution and other historically significant documents in the form of statues, monuments, memorials, tablets or any other display that respects the dignity and solemnity of such documents. Such documents shall be displayed in a manner consistent with the context of other documents contained in such display.

In 2015, the Oklahoma Supreme Court held that a Ten Commandments monument on the statehouse grounds violates the Oklahoma Constitution. (See prior posting.)

The legislature also sent the Governor HB2632. The bill (full text) gives Oklahomans the same right in places of worship that they now have in homes and businesses to resist intruders by the use of deadly force. Tulsa World reports on the legislature's actions.

Russian Court Allows Seizure of Jehovah's Witness Property

Newsweek reports that a city court in St. Petersburg, Russia yesterday upheld a Sestroretskiy District Court's ruling allowing the Russian government to seize a $31.8 million Jehovah's Witness real estate complex. The seizure comes a year after Jehovah's Witnesses were declared an extremist organization by Russia's Supreme Court. (See prior posting.) In yesterday's ruling, the St. Petersburg court rejected the argument that the group's administrative buildings are owned by Watch Tower Bible and Tract Society based in the United States.

Fair Housing Suit Filed Over Condo Rule Barring Toran

The Philadelphia Inquirer reports on a federal Fair Housing Act religious discrimination lawsuit filed on Wednesday in a Pennsylvania federal district court. Filed by a Hindu condo owner in an upscale high-rise Philadelphia building, the suit challenges a new rule adopted by the condo association which bars resident Akhilesh Tripathi from keeping a toran on his door. The Hindu toran, made of chains, bells and balls of fabric, and blessed by a Hindu priest, has hung across his door frame since 2009. The condo association's new rules permit certain religious symbols, particularly mezuzahs, to be attached to door frames, but does not allow Tripathi's toran. The lawsuit seeks injunctive relief and damages.

Rulemaking Petition Seeks Changes In Eagle Feather Restrictions

Yesterday the Becket Fund for Religious Liberty announced the filing of a formal Rulemaking Petition (full text) with the Department of Interior on behalf of Native American feather dancer Robert Soto. The petition seeks rule changes that would expand the ability of Native Americans who are not members of federally recognized tribes to use eagle feathers in their religious worship:

The Department’s regulations are so restrictive that they ban all kinds of sincere religious behavior. Today, nearly every bird species native to North America is federally protected. So, a grandmother who bestows an eagle feather on her nonenrolled grandson to honor his college graduation turns both herself and her grandson into criminals. A Native American teenager adopted by a non-Native family breaks the law when he prays with a feather to reconnect with the spirits of his ancestors. And a member of a state-recognized tribe is subject to prosecution merely for possessing a single protected feather....

Effective reform in this area would do three things: First, it would broaden the Morton Policy to include all sincere religious believers who use federally protected feathers in their religious exercise—as both the Constitution and the Religious Freedom Restoration Act (RFRA) require. Second, it would officially promulgate this policy as a formal rule rather than rely on informal guidance, ending decades of legal limbo that has had disastrous consequences for many Native Americans. Third, it would empower Native American tribes to help combat the illegal commercialization of federally protected feathers.

The petition grows out of the settlement of a suit challenging current rules. (See prior related posting.)

House Chaplain Rescinds His Resignation

CNN reports that yesterday Jesuit priest Pat Conroy rescinded his resignation as Chaplain of the U.S. House of Representatives. The resignation came initially at the request of House Speaker Paul Ryan. (See prior posting.) A number of House members raised objections to Ryan's action, particularly when it appeared that the request was motivated in part by the desire to have a non-Catholic House Chaplain. Ryan has accepted Conroy's decision to stay on.

White House Expresses Concern Over Religious Violence In Central African Republic

The White House Press Secretary yesterday released a statement regarding religious violence in the Central African Republic (full text), saying in part:

The United States is extremely concerned about recent attacks against civilian centers, including Tuesday’s attack on a Christian church in the Fatima neighborhood of Bangui and the retaliatory attacks on Muslim community members. We urge Central African Republic (CAR) government officials to provide safety and security for all of its citizens, regardless of faith. CAR’s security forces must be professional in the face of ongoing security challenges.

New York Times has coverage of the violence.

White House Marks National Day of Prayer With Executive Order On New Faith Initiative

Yesterday the White House marked National Day of Prayer with a ceremony in the Rose Garden of the White House. Vice President Pence delivered remarks (full text) followed by a 15-minute address by President Trump (full text) in which he announced that he would be signing a new Executive Order to create a faith initiative at the White House. Later in the day the President signed an Executive Order on the Establishment of a White House Faith and Opportunity Initiative (full text). The Executive Order replaces President Obama's Office of Faith-Based and Community Initiatives with an Advisor to the White House Faith and Opportunity Initiative. The Initiative is to:

(iii) make recommendations to the President... regarding changes to policies, programs, and practices that affect the delivery of services by faith-based and community organizations....

(v) showcase innovative initiatives by faith-based and community organizations that serve and strengthen individuals, families, and communities throughout the United States;

(vi) notify the Attorney General ... of concerns raised by faith-based and community organizations about any failures of the executive branch to comply with protections of Federal law for religious liberty....

(vii) identify and propose means to reduce... burdens on the exercise of religious convictions and legislative, regulatory, and other barriers to the full and active engagement of faith-based and community organizations in Government-funded or Government-conducted activities and programs.

The White House also issued a Fact Sheet titled President Donald J. Trump Stands Up For Religious Freedom In The United States. Washington Post reports on these developments.

Thursday, May 03, 2018

Today Is National Day of Prayer

Today is National Day of Prayer. 36 USC §119 provides:

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

According to the private National Day of Prayer Task Force, the theme of this year's observance is Pray for America - UNITY. The Task Force President, Dr. Ronnie Floyd, will host an observance tonight in Statuary Hall in the United States Capitol.

UPDATE: Here is President Trump’s Proclamation.

Iowa Legislature Passes Heartbeat Abortion Bill

As reported by the Washington Post, the Iowa legislature yesterday gave final passage to SF 359 (full text), one of the most restrictive abortion laws in the country. The bill has been sent to Gov. Kim Reynolds for her signature. The bill prohibits a physician from performing an abortion if a fetal heartbeat is detectable. Exempted from the prohibition are cases of rape or incest if they were reported to authorities withing specified time periods. The bill also exempts abortions performed to preserve the life of the pregnant woman whose life is endangered by a physical disorder, illness, or injury, but not if endangered by life-threatening psychological, emotional or familial conditions, or the woman’s age, or "when continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman." The bill also prohibits receiving or transferring fetal body parts. Gov. Reynolds has not said whether she will sign the bill into law.

UPDATE: As reported by AP, he bill was signed by the governor on May 4.

New Jersey Supreme Court Says More Facts Needed To Decide Religious Capital Grants Challenge

In ACLU of New Jersey v. Hendricks, (NJ Sup. Ct., May 2, 2018), the New Jersey Supreme Court refused to decide on the record before it whether a $10.5 million grant to a Yeshiva and a $635,000 grant to a Christian theological Seminary violate the New Jersey Constitution. The grants were awarded by the Secretary of Higher Education under a state program designed to subsidize capital improvement projects at institutions of higher learning. The lower court held that the grants violated the Religious Aid Clause of the state constitution that prohibits using tax monies "for the maintenance of any minister or ministry". However, the Supreme Court said:

Rather than address a matter of constitutional importance on an insufficiently developed record, the better course is to remand the matter for an evidentiary hearing to bring the relevant factual material into better focus. Among the questions to be explored are ... (1) the sectarian nature of these institutions of higher education; (2) whether, in the setting of the curriculum and training programs of these particular institutions, the grant funds will necessarily be used in the “maintenance of any minister or ministry”; and (3) the adequacy of promised restrictions, or other curbs, against sectarian use of the grant proceeds at present and into the future....

Accordingly, we will remand to the Secretary for the development of a record in accordance with this opinion.

Asbury Park Press reports on the decision.

2nd Circuit: Damages Available In Individual Capacity Suits Under RFRA

In Tanvir v. Tanzin, (2d Cir., May 2, 2018), the U.S. 2nd Circuit Court of Appeals held that under the Religious Freedom Restoration Act, a plaintiff may sue federal officials in their individual capacities and may recover monetary damages from them. The holding comes in a lawsuit by three Muslims who claim that their names were placed on the "No Fly List" in retaliation for their refusal to serve as government informants. The Court, reversing the district court and remanding, said in part:

We agree with the Third Circuit’s reasoning in Mack [v. Warden Loretto FCI] and adopt it here. In particular, we reject a strained reading of “appropriate relief” that would be less generous to plaintiffs under RFRA than under implied rights of action, and thus would undermine Congress’s intention to “provide broad religious liberty protections.” Id. Further, as one district court has pointed out, “[i]t seems unlikely that Congress would restrict the kind of remedies available to plaintiffs who challenge free exercise violations in the same statute it passed to elevate the kind of scrutiny to which such challenges would be entitled.” Jama, 343 F. Supp.2d at 374‐75 (emphasis in original).

Courthouse News Service reports on the decision. [Thanks to Daniel Benson for the lead.]

Canada's House of Commons Calls on Pope and Church To Respond To Residential Schools Settlement

On Tuesday, Canada's House of Commons by a vote of 269-10 called on the Catholic Church and Pope Francis to respond to recommendations in the 2015 Report of Canada's Truth and Reconciliation Commission. The Commission was created as part of a settlement of lawsuits exposing abuses by the Residential School System which had operated for decades in Canada and had separated Aboriginal children from their families. CTV News reports on this week's action in Parliament:

Among the 94 calls to action by the Truth and Reconciliation Commission was a request for an apology -- to be delivered in Canada by the pontiff himself -- for the church's role in the residential school abuse of First Nations, Inuit and Metis children. An estimated 150,000 of children were forced to attend the schools, many of which were operated by the Roman Catholic Church.

But in March, the Canadian Conference of Catholic Bishops said that while the Pope acknowledged the commission's findings and expressed regret for past wrongs, he "felt he could not personally respond."

The Pope's decision pushed NDP MPs to launch the motion soon after, which also calls on the Catholic Church to pay money owed to residential school survivors and to turn over relevant documentation regarding the government-sponsored schools.

The House of Commons Journals for May 1 sets out the full text of the Motion and details of those voting on it [scroll down].

Wednesday, May 02, 2018

Israel's Knesset Passes Bill Urging Judges To Use Jewish Law In Absence of Other Precedent

Haaretz [subscription required] reports that Israel's Knesset yesterday, by a vote of 39-32, gave final approval to a controversial bill that recommends, but does not require, judges to decide cases according to principles of Jewish law when there is no other relevant legislation or judicial precedent. It also continues the provision that is in current law urging judges to also look at "the principles of Jewish heritage." Bill sponsor MK Nissan Slomiansky (Habayit Hayehudi) explained:

The goal is that if there’s a lacuna in the law, instead of the judge running to look all over the world for compatible legal systems, he should look at Jewish law. If the judge wants to, he’ll use it, and if not, he’ll use his judgment and do as he sees fit. This isn’t a big revolution and there’s nothing here that ought to scare people.

However, opposition Knesset member Merav Michaeli (Zionist Union) argued:

This is one small step ... on the way to an undemocratic state governed by Jewish law.... In a democratic country, the law is whatever is decided by the people’s representatives, not what a mere minority believes that God has decided.

And Knesset member Dov Khenin (Joint List , a coalition of Arab parties) said:

This bill is part of a creeping, dangerous move. This government has proposed a series of bills whose goal is to change the foundations of the system, to distance the system as much as possible from progressive views of democracy and make it more nationalist, conservative and religious.

Nominations Sought For Law Faculty Law & Religion Scholarship Award

The Association of American Law Schools Section on Law and Religion has issued the following Call for Nominations:

Harold Berman Award for Excellence in Scholarship

The AALS Section on Law and Religion seeks nominations for the Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that “has made an outstanding scholarly contribution to the field of law and religion,” in the words of the prize rules. To be eligible, a paper must be published between July 15, 2017 and July 15, 2018. The author must be “a faculty member at an AALS Member School with no more than 10 years’ experience as a faculty member.” Fellows are eligible. Self-nominations are accepted. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Nominations should be sent to Nelson Tebbe at nt277@cornell.edu by August 15, 2018. The winner will receive an award plaque at the AALS annual meeting in January, 2019. The prize committee members are Stephanie Barclay, Thomas C. Berg, Haider Ala Hamoudi, Elizabeth Sepper, and Nelson Tebbe (chair).

Factual Questions Remain On Ecclesiastical Abstention and Ministerial Exception

In Kelley v. Decatur Baptist Church, (ND AL, May 1, 2018), an Alabama federal magistrate judge refused to dismiss a Title VII pregnancy discrimination lawsuit brought by a maintenance and child care employee of a church. The court held that factual questions exist as to whether the ecclesiastical abstention doctrine applies. Plaintiff claims she was fired because she was pregnant. Defendant contends she was fired because she engaged in sexual conduct outside of marriage in violation of Biblical standards. The court also held that factual questions exist as to whether the ministerial exception doctrine applies. Plaintiff challenged defendant's characterization of her as a minister charged with equipping, training, and evangelizing the next generation according to biblical standards and morals.

HHS Investigating Legality of Hawaii Notice Requirements For Pregnancy Clinics

An ADF press release on Monday reports that the Office of Civil Rights of the U.S. Department of Health and Human Services has initiated an investigation on behalf of A Place for Women, a limited service pregnancy center in Hawaii. At issue is the requirement in Hawaii Act 200 enacted last year requiring such centers to disseminate on-site to patients a notice that says in part:

Hawaii has public programs that provide immediate free or low-cost access to comprehensive family planning services, including, but not limited to, all FDA-approved methods of contraception and pregnancy-related services for eligible women. To apply online for medical insurance coverage, that will cover the full range of family planning and prenatal care services, go to mybenefits.hawaii.gov.

The letter from HHS to ADF, which filed a complaint with it, says in part:

Under federal regulations, OCR is designated to receive complaints based on federal laws that protect conscience and prevent coercion, including the Weldon Amendment, the Coats-Snowe Amendment, and the Church Amendments. OCR has reviewed the Complaint and has determined that it has sufficient authority and cause to investigate the allegations under one or more of these laws.

Tuesday, May 01, 2018

Unusual Brief Filed In Appeal of Parsonage Allowance Case

As previously reported, last October in Gaylor v. Mnuchin a Wisconsin federal district court held that the parsonage allowance provision in Sec. 107(2) of the Internal Revenue Code violates the Establishment Clause. The case has been appealed to the U.S. 7th Circuit Court of Appeals. Yesterday an unusual amicus brief (full text) was filed by ADF on behalf of 8,899 Christian pastors from all 50 states. The brief's 12-pages of legal arguments in favor of the constitutionality of the exemption are followed by a 200-page list of the pastors and churches on whose behalf the brief was filed.

President Proclaims May As Jewish American Heritage Month

Yesterday President Donald Trump issued a Presidential Proclamation (full text) declaring May 2018 as Jewish American Heritage Month. The Proclamation reads in part:

The American Jewish community is a shining example of how enshrining freedom of religion and protecting the rights of minorities can strengthen a nation. Through their rich culture and heritage, the Jewish people have triumphed over adversity and enhanced our country. For this and many other reasons, the American Jewish community is deserving of our respect, recognition, and gratitude.

Former Vatican Official To Stand Trial In Australia On Some Sex Offense Charges Against Him

In Australia yesterday, a Melbourne Magistrate's Court ruled that Cardinal George Pell must stand trial on some of the sex offense charges lodged against him. Crux reports:

Following a four-week committal hearing last month, an Australian magistrate on Tuesday dismissed some of the most serious charges of “historical sexual offenses” against Cardinal George Pell but also ruled that the 76-year-old prelate will stand trial on at least three different complaints....

Pell is currently on a leave of absence from his post as the Vatican’s Secretary for the Economy, and he becomes the most senior Church official ever to face criminal charges of sexual abuse in a civil court of law.

Court Refuses To Dismiss Challenge To Town's Settlement Agreement On Mosque Construction

In Quick v. Township of Bernards, (D NJ, April 30, 2018), a New Jersey federal district court denied defendant's motion to dismiss a lawsuit challenging a settlement agreement entered by the Township of Bernards to settle a dispute over construction of a mosque in the Township. Under the settlement agreement, a new Planning Board hearing on permitting construction of the mosque was to be held. One of the stipulations, however, was that at the hearing "No commentary regarding Islam or Muslims will be permitted." (See prior posting). Plaintiffs contend that this is an unconstitutional suppression of speech based on its content and viewpoint, is a prior restraint on speech, denies plaintiffs procedural due process, violates the Establishment Clause by favoring Islam over other religions, and violates the 1st Amendment's petition clause. New Jersey Law Journal reports on the decision.

Congressional Freethought Caucus Is Launched

In a press release yesterday, four members of the U.S. House of Representatives announced the formation of the Congressional Freethought Caucus. The founders set out four goals for the new organization:

1) to promote public policy formed on the basis of reason, science, and moral values; 2) to protect the secular character of our government by adhering to the strict Constitutional principle of the separation of church and state; 3) to oppose discrimination against atheists, agnostics, humanists, seekers, religious and nonreligious persons, and to champion the value of freedom of thought and conscience worldwide; and 4) to provide a forum for members of Congress to discuss their moral frameworks, ethical values, and personal religious journeys.

The Caucus will be co-chaired by Representatives Jared Huffman (D-CA) and Jamie Raskin (D-MD). Other founding members are Representatives Jerry McNerney (D-CA) and Dan Kildee (D-MI).

Monday, April 30, 2018

Certiorari Denied In Christian School's RLUIPA Lawsuit

The U.S. Supreme Court today denied review in Livingston Christian Schools v. Genoa Charter Township, (Docket No. 17-914, certiorari denied 4/30/2018) (Order List). In the case, the U.S. 6th Circuit Court of Appeals dismissed a RLUIPA claim by a Christian school that was denied a special use permit needed for it to relocate. The school had concluded that remaining in its present location on a long-term basis would end in its dissolution from lack of enrollment and income. However the Court held as a matter of law that the denial of the permit did not impose a "substantial burden" on the school. (See prior posting.)

British Court Gives Coroners Guide On Prioritizing Release of Bodies For Religious Reasons

In Adath Yisroel Burial Society v. HM Senior Coroner For Inner North London, (EWHC, April 27, 2018), a 2-judge panel in England's High Court held unlawful the policy of a London Coroner to categorically refuse to give priority to releasing a body for burial when requested to do so for religious reasons. Jewish and Muslim religious law calls for burial to take place quickly after death. The court summarized its holding in part as follows:

(1) A Coroner cannot lawfully exclude religious reasons for seeking expedition of decisions by that Coroner, including the Coroner’s decision whether to release a body for burial.

(2) A Coroner is entitled to prioritise cases, for religious or other reasons, even where the consequence of prioritising one or some cases may be that other cases will have to wait longer for a decision....

(3) Whether to accord one case priority over another or others is for the Coroner to determine. The following further points apply:

a) It is in principle acceptable for the Coroner to implement a policy to address the circumstances when priority will or may be given, so long as that policy is flexible and enables all relevant considerations to be taken into account.

b) The availability of resources may be a relevant consideration in drawing up that policy or in making the decision in any individual case but limitations on resources do not justify discrimination.

(4) It would be wrong for a Coroner to impose a rule of automatic priority for cases where there are religious reasons for seeking expedition.

JTA reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:

Ryan T. Anderson, A New Time for Choosing on Life, Liberty, and the Pursuit of Happiness: Today's Challenges to the Principles of Ronald Reagan's Conservative Manifesto, (The Reagan Manifesto: “A Time for Choosing” and its Influence, edited by Eric D. Patterson and‎ Jeffry H. Morrison. Palgrave Macmillan (2016)).
Angela Carmella, When Businesses Refuse to Serve for Religious Reasons: Drawing Lines between 'Participation' and 'Endorsement' in Claims of Moral Complicity, (Rutgers Law Review, Vol. 69, 2018).
Tarunabh Khaitan & Jane Calderwood Norton, The Place of Religion in Human Rights Law: Distinguishing Freedom of Religion from the Right Against Religious Discrimination, (April 13, 2018).
Peter J. Hill, The Ideological Origins of the Rule of Law, (Presented at The Life and Legacy of Douglass North Celebrating the 25th Anniversary of North’s Nobel Prize in Economics, March 2018).
Kate Elengold, Consumer Remedies for Civil Rights, (Boston University Law Review, Forthcoming).
Guy Pessach & Michal Shur-Ofry, Copyright and the Holocaust, (Yale Journal of Law and the Humanities, Forthcoming).

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

Ivo Telec, Spiritual Healing As a Religious Act. Czech Legal View, (April 4, 2018).
Myriam Hunter-Henin, English Schools with a Religious Ethos: For a Re-Interpretation of Religious Autonomy, (Religion and Human Rights, Forthcoming).
Richard Moon, Conscientious Objection in Canada: Pragmatic Accommodation and Principled Adjudication, (Oxford Journal of Law and Religion, Forthcoming).
Md. Jahirul Islam, Masahiro Suzuki, Nurunnahar Mazumder & Nada Ibrahim, Challenges of Implementing Restorative Justice for Intimate Partner Violence: An Islamic Perspective, (Journal of Religion & Spirituality in Social Work, Forthcoming).

From SmartCILP:

Mark A. Goldfeder, Michelle K. Terry, To Repeal or Not Repeal: The Johnson Amendment, 48 University of Memphis Law Review 209-255 (2017).

Sunday, April 29, 2018

Recent Prisoner Free Exercise Cases

In Howard v. Skolnik, (9th Cir., April 23, 2018), the 9th Circuit upheld a prison's cancellation of Nation of Islam services for security reasons.

In Wallace v. Ducart, 2018 U.S. Dist. LEXIS 66371 (ND CA, April 19, 2018), a California federal district court held that an inmate could move ahead with an equal protection claim alleging that he was fired from his prison job because of his religion.

In McDougald v. Davis, 2018 U.S. Dist. LEXIS 66626 (SD OH, April 20, 2018), an Ohio federal magistrate judge recommended dismissing a Jewish inmate' complaint that he was initially denied kosher meals.

In Ealom v. United States, 2018 U.S. Dist. LEXIS 66792 (D KA, April 20, 2018), a Kansas federal district court held that a female Muslim inmate who claimed that she has been harassed about her religious headgear and once was not allowed to go receive medication until she removed it did not adequately allege free exercise of 8th Amendment claims.

In Rose v. Annucci, 2018 U.S. Dist. LEXIS 67017 (ND NY, April 19, 2018), a New York federal magistrate judge recommended dismissing claims by a Muslim inmate that he was not permitted to participate in Eid-Ul-Adha and Ramadan. Plaintiff, among other things, refused or failed to comply with required paperwork.

In Hill v. Smith, 2018 U.S. Dist. LEXIS 67019 (ND NY, April 19, 2018), a New York federal magistrate judge recommended dismissing a formerly-Protestant but now Muslim inmate's complaint that he was told to take off his Kufi. Apparently authorities were concerned that its color indicated gang affiliation.

In Snowden v. Prince George's County Department of Corrections, 2018 U.S. Dist. LEXIS 68419 (D MD, April 23, 2018), a Maryland federal district court denied a default judgment to Muslim inmates complaining that they were prevented from having Friday religious services and daily congregational prayers.

In Cary v. Crooms, 2018 U.S. Dist. LEXIS 69377 (ED MI, April 25, 2018), a Michigan federal district court allowed a Native American inmate to move ahead with his complaint over the way his medicine bag and herbs were treated during a cell search.

In Clark v. United States, 2018 U.S. Dist. LEXIS 69527 (ED KY, April 24, 2018), a Kentucky federal district court dismissed an inmate's complaint that a correctional officer made derisive comments about his being a Moorish-American Muslim.

In Irsan v. Gonzalez, 2018 U.S. Dist. LEXIS 70204 (SD TX, April 26, 2018), a Texas federal district court dismissed a Muslim inmate's complaint that during Ramadan he was offered only peanut butter sandwiches instead of hot Halal meals, and his charge that items he used for religious purposes were confiscated from his cell in retaliation for his Muslim beliefs.

Jury Awards $5.1M In EEOC Suit For Religious Coercion of Employees

According to an EEOC press release, after a 3-week trial in federal district court in New York, a jury awarded $5.1 million in compensatory and punitive damages against United Health Programs of America, Inc. and its parent company for coercing ten employees to engage in religious practices, creating a hostile work environment for nine of them, and firing one employee for opposing these practices. The EEOC, which filed suit on behalf of the employees, reports:

CCG employees were forced to engage in a variety of religious practices at work, including prayer, religious workshops, and spiritual cleansing rituals. These practices were part of a belief system called "Harnessing Happiness" or "Onionhead," created by the aunt of CCG's CEO's. The judge previously ruled such practices constituted a religion, for purposes of Title VII. The aunt, employed by CCG as a consultant and fully supported by CCG's upper management, spent substantial time in the company's offices from 2007, implemented the religious activities at the workplace and had a role in employee hiring and firing.

The EEOC also plans to seek injunctive relief and back pay for the fired employee.

Synagogue Loses Challenge To Storm Water Remediation Fee

In Shaarei Tfiloh Congregation v. Mayor and City Council of Baltimore, (MD App., April 27, 2018), in a suit by a synagogue the Maryland Court of Special Appeals held that Baltimore's Storm Water Remediation Fee is an excise tax, not a property tax. Thus the tax exemption for property used for public religious worship does not apply. The court also held that RLUIPA is not applicable because the Storm Water Fee is not a land use regulation.

Saturday, April 28, 2018

Abortion Protester's Bomb Prophecy Was Not A "True Threat"

Thames v. City of Westland, (ED MI, April 20, 2018) is a suit by a pro-life advocate who was arrested and held over the weekend on charges of making a terrorist threat while protesting at an abortion clinic. Kimberly Thames, while picketing the clinic, allegedly said "I prophesy bombs, I prophesy bombs. There is going to be a bombing in the near future." A Michigan federal district court concluded that an issue of fact exists as to whether officers had probable cause to arrest Thames:

Mich. Comp. Laws § 750.543m only criminalizes “true threats” which involve a “serious expression of an intent to commit an act of unlawful violence,”.... In the vague context allegedly used by Thames, at least a jury question exists as to whether it amounts to a true threat.

The evidence suggests that Defendant Officers did not consider the statement to be a true threat as they did not direct evacuation of the clinic, did not request the assistance of a bomb squad, did not request the assistance of a bomb sniffing dog, did not search the clinic for a bomb, did not search the surrounding area for a bomb, did not search the adjacent parking lot for a bomb, did not search the dumpster for a bomb, and did not impound Thames’ vehicle for fear that a bomb might be planted in it.

The court denied motions for summary judgment on wrongful arrest, retaliatory arrest (as to some defendants) and equal protection claims.

Friday, April 27, 2018

House Chaplain Ousted By Speaker Ryan-- Reasons Unclear

The Hill reports that House of Representatives Chaplain Patrick Conroy has resigned under pressure to do so from House Speaker Paul Ryan. Conroy, a Jesuit priest, had served as House Chaplain since 2011. The reason for Conroy's ouster is unclear, and a bipartisan group of Representatives are circulating a letter asking Ryan to explain his action. Some have suggested that the firing stems from a prayer delivered by Conroy in November that could have been seen as critical of the Republican tax-cut bill then under consideration.

USCIRF Issues 2018 Annual Report

On Tuesday, the U.S. Commission on International Religious Freedom issued its 228-page 2018 Annual Report (full text). A press release from USCIRF summarizes its key points:

A key component of the report is USCIRF’s recommendations of countries for designation as “countries of particular concern,” or CPCs, under the International Religious Freedom Act (IRFA). CPCs are governments that engage in or tolerate systematic, ongoing, egregious violations of religious freedom.

In its 2018 report, USCIRF recommends 16 countries for CPC designation: 10 that the State Department so designated in December 2017—Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, Tajikistan, Turkmenistan, and Uzbekistan—and six others—Central African Republic, Nigeria, Pakistan, Russia, Syria, and Vietnam.

The report also includes a second category, USCIRF’s Tier 2, for countries where the violations meet one or two, but not all three, of the elements of the systematic, ongoing, egregious test. In its 2018 report, USCIRF places 12 countries on its Tier 2: Afghanistan, Azerbaijan, Bahrain, Cuba, Egypt, India, Indonesia, Iraq, Kazakhstan, Laos, Malaysia, and Turkey.

In addition, the report contains USCIRF’s recommendations of “entities of particular concern,” or EPCs, a designation created by the 2016 Frank R. Wolf International Religious Freedom Act for non-state actors committing systematic, ongoing, egregious violations. The act defines a non-state actor as “a non-sovereign entity that exercises significant political power and territorial control; is outside the control of a sovereign government; and often employs violence in pursuit of its objectives.” Based on their conduct and control of territory in 2017, USCIRF recommends three groups for designation as EPCs in 2018: the Islamic State of Iraq and Syria (ISIS) in Iraq and Syria; the Taliban in Afghanistan; and al-Shabaab in Somalia.

The Report also contains a series of recommendations to the Administration and to Congress.

Iranian Christians Denied Refugee Status Sue

A class action lawsuit was filed last week on behalf of 87 Christians, Mandaeans, and other persecuted religious minorities from Iran who (through family members in the United States) have applied for refugee status under the Vienna-based Lautenberg-Specter program. The refugee applicants are currently in Vienna. In February 2018 their refugee applications were denied en masse "as a matter of discretion." The complaint (full text) in Doe v. Nielsen, (ND CA, filed 4/18/2018), contends that:

Defendants’ conduct violates the Administrative Procedure Act because the program changes that resulted in the mass denials constitute final agency actions that were unlawful, including because they were “arbitrary, capricious, an abuse of discretion, or not in accordance with law.”

The Lautenberg Amendment, originally enacted in 1989, made it easier for Jews and Christians from the former Soviet Union to gain admission to the United States as refugees. In 2004, Congress enacted the Specter Amendment which added Iranian religious minorities to those eligible for special protection under the Lautenberg Amendment. Since 2004, some 30,000 Iranian religious minorities have been resettled in the United States. Christian Post reports on the lawsuit.