En Banc Rehearing Denied In Touro Synagogue Dispute

Yesterday the U.S. 1st Circuit Court of Appeals denied an en banc rehearing in  Congregation Jeshuat Israel v. Congregation Shearith Israel (1st Cir., June 7, 2018).  In the case, a 3-judge panel ruled that Rhode Island's historic Touro Synagogue is owned by New York's Shearith Israel congregation. (See prior posting.) Along with the denial order yesterday, the original panel filed a Statement explaining why it opposed a rehearing, and Judge Thompson filed a dissent from the denial of a rehearing.  Reporting on yesterday's decision, the Providence Journal says that Jeshuat Israel plans to seek review by the U.S. Supreme Court. [Thanks to Steven H. Sholk for the lead.]

Suit Seeks Recognition of Non-Religious Wedding Officiants

A suit was filed last week by Center for Inquiry, a secular humanist organization, challenging the limits in Michigan law that prevent secular celebrants from officiating at weddings in the state.  CFI among other things trains individuals how to solemnize marriage ceremonies consistent with secular principles.  The complaint (full text) in Center for Inquiry, Inc. v. Lyons, (WD MI, filed 5/31/2018) contends:

Michigan law, Mich. Comp. Laws § 551.7, which allows people to be married by the religious leaders of their choice, while denying these opportunities to plaintiffs, creates a preference for religion over non-religion in violation of the Establishment Clause of the First Amendment of the United States Constitution....

The complaint also alleges equal protection violations.  CFI issued a press release announcing the filing of the lawsuit.

Recent Prisoner Free Exercise Cases

In Quiero v. Muniz, 2018 U.S. Dist. LEXIS 80557 (MD PA, May 14, 2018), a Pennsylvania federal district court adopted a magistrate's recommendations and dismissed an inmate's complaint that his request for a visit from a prison chaplain was rejected.

In Little v. Gens, 2018 U.S. Dist. LEXIS 80691 (ED WI, May 14, 2018), a Wisconsin federal district court allowed a Muslim inmate to proceed on First Amendment free exercise claim against one defendant who allegedly punished him for exercising his right to perform Wudū. Claims against other defendants were dismissed.

In Hogan v. Idaho State Board of Corrections, 2018 U.S. Dist. LEXIS 82582 (DD, May 15, 2018), an Idaho federal magistrate judge concluded that sufficient facts had been alleged for a Muslim inmate to move ahead with his claim that he should be permitted to grow four-inch beard and wear a kufi at all times.

In Pouncil v. Sherman, 2018 U.S. Dist. LEXIS 82761 (ED CA, May 15, 2018), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that he was wrongfully denied a meal to break his fast on one night of Ramadan.

In Rushdan v. Gear, 2018 U.S. Dist. LEXIS 82769 (ED CA, May 15, 2018), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that the prison insisted on listing his religious name as an additional name after his commitment name, rather than allowing him to use his religious name solely.

In Sariaslan v. Rackley, 2018 U.S. Dist. LEXIS 82804 (ED CA, May 15, 2018), a California federal magistrate judge ruled that a Muslim inmate could move ahead with his complaint that he was not permitted to receive a Ramadan religious food package which he ordered.

In Gakuba v. Doe, 2018 U.S. Dist. LEXIS 84070 (SD IL May 17, 2018), an Illinois federal district court allowed a Jewish inmate to move ahead with his complaint that he was initially denied kosher meals and later was only served them intermittently.

In Thomas v. Wetzel, 2018 Pa. Commw. Unpub. LEXIS 271 (PA App., May 18, 2018), a Pennsylvania appellate court held that a Muslim inmate could move ahead with his claim that denying him the right to purchase an electric razor violated his religious exercise rights under RLUIPA. The court however dismissed the inmate's claim that denial of access to a computer and printer violated his RUIPA rights.

In Johnson v. Paul, 2018 U.S. Dist. LEXIS 84974 (SD NY, May 21, 2018), a New York federal district court dismissed with leave to amend an inmate's complaint that he was denied "Jewish meals" and that there were no Jewish religious services especially during "past over month".

In Spearman v. Michigan, 2018 U.S. Dist. LEXIS 85163 (WD MI, May 22, 2018), a Michigan federal district court allowed an inmate to move ahead against certain defendants on his complaint that authorities refused to recognize his Nuwaubian religion, and refused to provide him with a religious diet or allow him to participate in the Ramadan fast.

Public Accommodation Law Upheld Against Religious Claims In First Post-Masterpiece Cakeshop Decision

In the first case to present issues similar to those in the Supreme Court's Masterpiece Cakeshop decision, an Arizona appellate court has largely vindicated the rights of a same sex couple.  In Brush & Nib Studio, LC v. City of Phoenix, (AZ App, June 7, 2018), owners of an art studio that designs wedding products, citing their Christian religious beliefs, refused to create customer-specific merchandise for same-sex weddings. They sued to obtain an injunction against application of Phoenix's public accommodation anti-discrimination law to them.  Rejecting their free speech argument, the court said in part:

the conduct at issue is not the creation of words or images but the conduct of selling or refusing to sell merchandise—either pre-fabricated or designed to order—equally to same-sex and opposite-sex couples. This conduct, even though it may incidentally impact speech, is not speech. Further, allowing a vendor who provides goods and services for marriages and weddings to refuse similar services for gay persons would result in “a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” Masterpiece Cakeshop, Ltd., slip op. at 10.

The court goes on to note:

Although Appellants are prohibited from posting discriminatory statements about their intent to refuse services for same-sex weddings, they may post a statement endorsing their belief that marriage is between a man and a woman and may post a disclaimer explaining that, notwithstanding that belief, Section 18-4(B) requires them to provide goods and services to everyone regardless of sexual orientation. Or they may post a disclaimer that the act of selling their goods and services to same-sex couples does not constitute an endorsement of their customers’ exercise of their constitutional right to marry or any other activities.

The court did, however, strike as unconstitutionally vague a portion of the public accommodation law that prohibited advertisements or notices that states or implies that a person, because of sexual orientation would be "unwelcome, objectionable, unacceptable, undesirable or not solicited."

The court went on to reject the studio owners' free exercise claims:

Appellants have failed to prove that Section 18-4(B) substantially burdens their religious beliefs.... Appellants are not penalized for expressing their belief that their religion only recognizes the marriage of opposite-sex couples. Nor are Appellants penalized for refusing to create wedding-related merchandise as long as they equally refuse similar services to opposite-sex couples. Section 18-4(B) merely requires that, by operating a place of public accommodation, Appellants provide equal goods and services to customers regardless of sexual orientation. Appellants are free to discontinue selling custom wedding-related merchandise and maintain the operation of Brush & Nib for its other business operations. What Appellants cannot do is use their religion as a shield to discriminate against potential customers.

Slate reports on the decision.

UPDATE: AP reports that that attorneys for Brush & Nib plan an appeal.

Another Court Enjoins Obama Era Contraceptive Mandate On Religious Non-Profits

As it has done in other cases, last week in Grace Schools v. Azar, (ND IN, une 1, 2018), the Trump Administration has conceded that applying the Obama Administration's contraceptive coverage rules to religious non-profits would violate the Religious Freedom Restoration Act.  The court thus issued a permanent injunction against applying the Obama Administration's compromise to Grace College & Theological Seminary.  Ft. Wayne News-Sentinel reports on the decision.

Bermuda Court Invalidates Bar On Same-Sex Marriage

In Ferguson v. Attorney General, (Bermuda Sup. Ct., June 6, 2018), a Bermuda trial court held unconstitutional Bermuda's Domestic Partnership Act 2018 that rejects recognition of same-sex marriage.  The Act was passed to reverse an earlier court decision that held existing anti-discrimination laws validated same-sex marriage. (See prior posting.)  In yesterday's decision, the court held that the effect of the Domestic Partnership Act is to limit those desiring recognition of their same-sex relationship to choosing domestic partnerships. It held that while it is not invalid as a law enacted substantially for religious purposes, it is an invalid infringement of  belief:

Prior to the DPA coming into force, same-sex couples who believed in the institution of marriage could manifest their beliefs by participating in legally recognised marriage ceremonies. Just as PMB and its members genuinely believe that same-sex marriages should not be legally recognised, the Applicants and many others equally sincerely hold opposing beliefs. It is not for secular institutions of Government, without constitutionally valid justification, to direct the way in which a citizen manifests their beliefs.

... The Applicants do not seek the right to compel persons of opposing beliefs to celebrate or enter into same-sex-marriages. They merely seek to enforce the rights of those who share their beliefs to freely manifest them in practice. Persons who passionately believe that same-sex marriages should not take place for religious or cultural reasons are entitled to have those beliefs respected and protected by law. But, in return for the law protecting their own beliefs, they cannot require the law to deprive person who believe in same-sex marriage of respect and legal protection for  their opposing beliefs.

 The court also issued a summary of its decision, and Skift reports on the decision.

Suit Charges Neighborhood With Discrimination Against Hasidic Jews

A religious discrimination lawsuit was filed two weeks ago in a New York federal district court by a number of Hasidic Jews who currently live, have lived, or wish to live in the Woodbury, New York neighborhood of Highland Lake Estates. The complaint (full text) in Stern v. Highland Lake Homeowners Association, (SD NY, filed 5/24.2018) alleges that the Homeowners Association and many of its members have taken actions to discourage more Hasidic Jews from moving into the area and making those who already live there feel unwelcome. The suit seeks $7.5 million in damages.  The Times Herald-Record reports on the lawsuit.

State Department Issues 2017 Report On International Religious Freedom

On May 29, the State Department released its 2017 Report on International Religious Freedom (full text).  In releasing the report, Secretary of State Pompeo said in part:

This report demonstrates the hard work of American diplomats to protect American and universal values. I’m proud of my team in completing this report. The release of the 2017 International Religious Freedom Report is critical to our mission to defend religious liberty. It brings to light the state of religious freedom all over the world. It documents, across 200 countries and territories, reports of violations and abuses committed by governments, terrorist groups, and individuals so that we may work together to solve them....

The world has made important strides, but we still have a lot of work to do. In that regard, I am pleased to announce that the United States will host the first ever Ministerial to Advance Religious Freedom at the Department of State on July 25th and 26th of this year.

Canada's Supreme Court: No Right To Fairness Review of Church Tribunal Decision

In Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses v. Wall, (Can. Sup. Ct., May 31, 2018), Canada's Supreme Court rejected a challenge by a Jehovah's Witness that the church's Judicial Committee breached principles of natural justice and its duty of fairness in disfellowshipping him for sinful behavior.  He argued that the disfellowshipping caused other Jehovah's Witnesses to refuse to become clients of his real estate business. The court held:

[T]here is no free standing right to procedural fairness with respect to decisions taken by voluntary associations. Jurisdiction cannot be established on the sole basis that there is an alleged breach of natural justice or that the complainant has exhausted the organization’s internal processes. Jurisdiction depends on the presence of a legal right which a party seeks to have vindicated. Only where this is so can the courts consider an association’s adherence to its own procedures and (in certain circumstances) the fairness of those procedures.

The court also held that the issue is not justiciable, saying that "courts will not consider the merits of a religious tenet".  A press release by the court summarizes the decision. [Thanks to Nima Nematollahi for the lead.]

Suit Challenges Idaho Invalidation of Pregnant Women's Living Wills

Suit was filed in an Idaho federal district court last week challenging the constitutionality of an Idaho statute that invalidates a woman's health care advance directive if the woman is pregnant.  The complaint (full text) in Almerico v. Denney, (D ID, filed 5/31/2018) alleges in part:

That law improperly infringes on the right to privacy in making medical decisions and subjects women of child bearing age to unequal and demeaning treatment in multiple ways. First, the law on its face eliminates the right of a woman who has been diagnosed as pregnant to have her express decisions about medical treatment, including whether to request or decline life-sustaining measures, honored by her health care providers. Second, the law renders ineffective the right of a woman who has been diagnosed as pregnant to designate her health care agent. Third, because of the law, the effectiveness of the health care directives of all women of childbearing age in Idaho is thrown into question until each woman’s pregnancy status is determined. Additionally, Defendants have exceeded the statute’s mandate by publicly stating that not only will the health care directives of women who have been diagnosed as pregnant be rendered null and void, but they will be forced to receive life-sustaining treatment for the duration of their pregnancies.

Objections To Child's Vaccination Were Not Genuine Religious Beliefs

In Miller v. Dicherry, (LA App, May 29, 2018), a Louisiana state appellate court rejected objections of a mother, who was the domiciliary parent under a joint custody decree, to having her child vaccinated.  The mother argued that she had a First Amendment right to refuse routine vaccinations for her child on religious grounds.  The court held that the mother's objections did not stem from a genuinely held religious beliefs.  It upheld the trial court's grant of authority to the child's father to make the medical decision that the child be vaccinated.  The court said in part:

[T]he trial court found that Ms. Dicharry's "reluctance to have her child vaccinated arises from a personal, moral, or cultural feeling against vaccination for her minor child." The trial court found that "[ t]hese views and feelings are more in the nature of a secular philosophy than a religious belief." Considering the record, we find no manifest error in the trial court's factual determinations.

Settlement Reached In Minnesota Catholic Diocese Bankruptcy

The National Catholic Reporter last week detailed a $210 million settlement with over 400 sexual abuse victims reached by the Diocese of St. Paul- Minneapolis in its bankruptcy reorganization.  $170 million will come from insurers, and $40 million will be paid by the archdiocese and parishes.  It is the largest settlement reached so far in any of the Catholic diocese bankruptcy cases around the country. [Thanks to Steven H. Sholk and Tom Rutledge for the lead.]

Four USCIRF Appointments Announced

In a May 22 press release, the U.S. Commission on International Religious Freedom announced four recent appointments to the Commission. Kristina Arriaga, previously the executive director of Becket Fund for Religious Liberty, was reappointed by House Speaker Paul Ryan.  President Trump has recently appointed Gary L. Bauer, president of American Values; Nadine Maenza, executive director of Patriot Voices; and Johnnie Moore, CEO of The KAIROS Company.

Challenge May Proceed Against School Policy of Disciplining Students Who Refuse To Recite Pledge

In Arceneaux v. Klein Independent School District, (SD TX, May 22, 2018), a Texas federal district court allowed a high school student to move ahead with her free speech, free exercise, and equal protection challenges to a school policy of disciplining and harassing students for sitting during the Pledge of Allegiance.

Recent Articles of Interest

From SSRN:

• Perry Dane, Jury Nullification: Features, Bugs, and the Possibility of Granular Law, (Journal of Law Culture and the Humanities, Forthcoming).
• Stephen R. Munzer, Examining Nontherapeutic Circumcision, (28 Health Matrix 1 (2018)).
• Leora F. Eisenstadt, Enemy and Ally: Religion in Loving v. Virginia and Beyond, (Fordham Law Review, Vol. 86, No. 2659, 2018).
• Prakash Shah, Secularism's Threat to Tradition: A Reading of Europe, India and the Limits of Secularism, (Queen Mary School of Law Legal Studies Research Paper No. 277/2018).
• Paul Barker, Vocation, Expressive Conduct, and Religious Liberty, (January 16, 2018).
• Abadir Ibrahim, Religion-State Identification and Religious Freedom in Ethiopia, (Pieter Coertzen, M. Christian Green, and Len Hansen (eds.) Religious Freedom and Religious Pluralism in Africa: Prospects and Limitations (2016)).
• Nuna Zekić, An Open and Diverse European Union?, (Tilburg Law Review, 22 (2017), 259-266).
• Dallan Flake, Religion as Key to Protecting Transgender Employees From Discrimination, (May 15, 2018).
• Johnny Rex Buckles, Unashamed of the Gospel of Jesus Christ: On Public Policy and Public Service by Evangelicals, (41 Harv. J.L. & Pub. Pol'y 813 (2018)).
• Blaine Hutchison, Protecting Religious Pluralism: How the Liberty that Supports Same-Sex Marriage Protects Religious Convictions, (Regent University Law Review, Vol. 30, No. 2, 2018).

From SSRN (Islamic Law):

• Abdel-Hameed M. Bashir, Reducing Poverty and Income Inequalities: Current Approaches and Islamic Perspective, (Journal of King Abdulaziz University: Islamic Economics, Vol. 31, No. 1, 2018).
• Samantha Bielen, Peter Grajzl & Wim Marneffe, Blame Based on One's Name? Extralegal Disparities in Criminal Conviction and Sentencing, (May 26, 2018).
• Tanya Monforte, Broad Strokes and Bright Lines: A Reconsideration of Shari'a Based Reservations, (May 8, 2018).
• Fajiri Muhammadin & Hanindito Danusatya, De-Secularizing Legal Education in Indonesian Non-Islamic Law Schools: Examining the ‘Introduction to Jurisprudence’ Textbooks on the ‘Norm Classification’ Chapter, (Ulul Albab: Jurnal Studi dan Pemikiran Hukum Islam, Vol. 1, No. 2 (2018)).
• Munawar Iqbal, Poverty, Inequalities and the Perceptions on Distributive Justice, (Journal of King Abdulaziz University: Islamic Economics, Vol. 31, No. 1, January 2018).
• Asad Zaman, An Islamic Approach to Inequality and Poverty, (Journal of King Abdulaziz University: Islamic Economics, Vol. 31, No. 1, January 2018).
• Aaron Z. Pitluck & Adhikari Shikshya, Islamic Banking and Finance in the Global North: Secular Incubators, Elementary Accommodation and Strategic Negligence, (in Mark Woodward and Ronald Lukens-Bull (eds). Handbook of Contemporary Islam and Muslim Lives. Springer, Forthcoming).
• Salman Syed Ali, Issues Involved in the Proposal of ‘A Global Currency to Stabilize the Monetary System, (Journal of King Abdulaziz University: Islamic Economics, Vol. 30, No. 2, July 2017).
• Ihsan Yilmaz, Semi-Official Turkish Muslim Legal Pluralism: Encounters between Secular Official Law and Unofficial Shari’a, (in A. Possamai et al. (eds.), The Sociology of Shari’a: Case Studies from around the World, Boundaries of Religious Freedom: Regulating Religion in Diverse Societies (2015)).

Veteran Has Standing to Challenge Therapist Bill As Establishment Clause Violation

In Copas v. Haslam, (MD TN, May 25, 2018), a Tennessee federal district court held that a gay Army veteran, who also holds a degree in counseling, has standing to bring an Establishment Clause challenge to a Tennessee law that permits therapists to refuse to serve LGBT clients when doing so would violate the therapist's religious beliefs. Plaintiff suffers from PTSD and Chronic Adjustment disorder, and has sought therapy in the past. The court held that plaintiff's claim that he has been marginalized and "made to feel ostracized and
unworthy as a non-adherent to the religiously-based, anti-LGBT preference" in the law is a sufficiently concrete injury to grant standing.  It also held that he has been sufficiently personally injured by the law to satisfy Article III standing requirements for his Establishment Clause claim.  The court however dismissed several equal protection claims made by plaintiff.

Church Sued By Manager of Its Event Space Over LGBTQ Access

A suit seeking $2.375 million in damages against a Portland, Oregon Catholic church was filed in an Oregon state court two weeks ago by a company which alleges that its business relationship with the church was wrongfully terminated.  The complaint (full text) in Holiday Investors, Inc. v. Holy Rosary Church of  Portland, Oregon, Inc., (Cir. Ct., filed 5/22/2018), alleges that plaintiff contracted to operate the Ambridge Event Center, a social hall owned by the church.  Under a morals clause in its contract with the church, plaintiff was not permitted to rent out the event center to persons or organizations affiliated with the LGBTQ community.  When plaintiff, pursuant to this requirement, refused to rent space to an African-American LGBTQ support group for its annual party, it suffered extensive negative publicity.  In an attempt to rehabilitate its reputation, plaintiff, among other things, hired an openly gay man as its events coordinator.  This resulted in the church terminating its contract with plaintiff. Plaintiff sued alleging breach of contract and violation of state anti-discrimination laws.  The Oregonian reports on the lawsuit and sets out further background.  [Thanks to Dusty Hoesly for the lead.]

Supreme Court In Narrow Decision Reverses Order Against Wedding Cake Baker

Today, by a vote of 7-2, the U.S. Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, (Sup. Ct., June 4, 2018), reversed on narrow grounds a Colorado appellate court's decision upholding the state Civil Rights Commission's cease and desist order against a baker who refused on religious grounds to create a wedding cake for a same-sex couple.  The Supreme Court's majority decision, written by Justice Kennedy, focused on what was seen as the unfairness of the hearing provided to the baker by the Commission, and the difference between this case and the approach in others decided by the Commission:

The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.

In reaching that conclusion, the Court acknowledged the difficulties involved in deciding the broader issues posed by the case:

The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.

One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all.... 

The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of  possibilities that seem all but endless.

Justice Kagan filed a concurring opinion joined by Justice Breyer.  Justice Gorsuch filed a concurring opinion joined by Justice Alito.  Justice Thomas filed a opinion concurring in part, joined by Justice Gorsuch.

Justice Ginsburg, joined by Justice Sotomayor, filed a dissenting opinion arguing that there was not sufficient evidence of unfair hostility by the Commission to the baker's religious beliefs.

Politico reports on the decision, as does SCOTUSblog.

6th and 7th Circuits Reject Challenge To "In God We Trust" On Currency

The U.S. 6th Circuit Court of Appeals in a 2-1 decision rejected claims by a group of plaintiffs-- atheists, humanists and one Jewish plaintiff-- that statutes requiring placing of the national motto, In God We Trust, on currency violates RFRA, as well as protections of free speech, free exercise and equal protection.  In Doe v. Congress of the United States, (6th Cir., May 29, 2018), the majority said in part:

Plaintiffs’ allegations indicate that at least some legislators who voted to enact the currency statutes intended to promote a Christian monotheistic message. However, intent to promote one religion is not necessarily intent to suppress another; Plaintiffs’ allegations do not show a specific governmental intent to infringe upon, restrict, or suppress other religious beliefs. Plaintiffs argue that the currency statutes nonetheless effect suppression of Atheist beliefs by requiring the Government to constantly spread speech that is akin to “Atheists Are Wrong.” But the incidental effect of suppression is permissible under the Free Exercise Clause absent restrictive intent: The laws must have been “enacted because of, not merely in spite of their suppression.”

Judge Moore, dissenting in part, contended that:

All but four of the plaintiffs have sufficiently pleaded factual allegations demonstrating that the inscription substantially burdens their religion and have thus pleaded a plausible violation of RFRA....

[T]he thirty-nine plaintiffs who allege that they are required to utilize coins and cash on a regular basis have sufficiently alleged that they face an untenable choice between violating their religious beliefs or being excluded “from full participation in the economic life of the Nation,”

In Mayle v. United States, (7th Cir., May 31, 2018), the U.S. 7th Circuit Court of Appeals held that neither the Establishment clause nor RFRA, nor the free speech clause, is violated by the printing the national motto, "In God We Trust", on currency, saying in part:

The inclusion of the motto on currency is similar to other ways in which secular symbols give a nod to the nation’s religious heritage.

In rejecting the claim of plaintiff Kenneth Mayle, an adherent of non-theistic Satanism, the court said in part:

Mayle argues that having the motto printed on currency forces him to choose between using cash, a necessary part of life, and violating his sincerely held religious beliefs. Using the currency makes him feel “guilt, shame and above all else fear,” and those feelings, he contends, qualify as a substantial burden. He likens himself to a fundamentalist Christian baker who would be forced to endorse gay marriage—a practice that violates his religious beliefs—by selling a couple a wedding cake. This term the Supreme Court is considering that baker’s case.... No matter how that case is decided, however, no reasonable person would believe that using currency has religious significance....  [B]ecause using money is not a religious exercise, and the motto has secular as well as religious significance, Mayle has not plausibly alleged that the motto’s placement on currency increases the burden on practicing Satanism.... Mayle’s feelings are not insignificant, but the burden he experiences is not substantial.

FACEA's Protection of Churches Does Not Violate Commerce Clause

In Zhang v. Chinese Anti-Cult World Alliance, (ED NY, May 30, 2018), a New York federal district court held that Congress did not exceed its commerce clause powers in passing the portion of the Freedom of Access to Clinic Entrances Act that protects against interference with access to places of religious worship. the court said in part:

Religion, even when non-profit, is deeply rooted in interstate commerce. It comprises a sizable portion of the United States economy. Houses of religious worship offer numerous valuable services to their congregates, support a large number of personnel, take in and expend considerable funds, own large tracts of land, and receive free municipal services, such as schooling assistance, roads, and police protection. Huge religious educational institutions operating over the internet draw students and billions of dollars in revenue from all over the country. Religion substantially contributes to our gross national product. Congress could reasonably have concluded that violence and intimidation to keep people out of houses of worship would substantially adversely affect interstate commerce. FACEA is constitutional in its design to protect that national commerce.

Courthouse News Service reports on the decision.

City Violated Establishment Clause By Sponsoring Prayer Vigil

In Rojas v. City of Ocala, (MD FL, May 24, 2018), a Florida federal district court held that the City of Ocala, Florida and its police chief violated the Establishment Clause when they organized and promoted a prayer vigil in response to a shooting spree plaguing the city.  The vigil resulted from attempts to involve the faith community in encouraging witnesses to cooperate in investigation of the shootings. the court, however, held that the mayor was not liable merely for failing to intervene to prevent the vigil. Ocala Star Banner reports on the decision.

Iowa Supreme Court Dismisses Negligence, But Not Negligent Supervision, Claims Against Church Elders

In Bandstra v. Covenant Reformed Church, (IA Sup. Ct., filed 6/1/2018), the Iowas Supreme Court held that the 1st Amendment and parallel state constitutional provisions bar negligence claims against elders of the church for their response to disclosure that the church's pastor was having sexual relations with several women he was counseling.  The court said in part:

Following [the pastor's] resignation, the elders sought to help the congregation move forward and heal. The means by which they chose to counsel and advise the congregation is outside the purview of the government. Plaintiffs argue “a reasonable church would seek assistance for parishioners and not label victims ‘adulteresses.’ ” Yet, that is precisely the type of determination that the Religion Clauses prohibit.... A court cannot dictate what teachings and services a church offers its parishioners. Nor can we disapprove of the elders deciding, pursuant to their duty as religious authorities, that the women would be best healed by simply confessing their “sins.”

However the court allowed one of the plaintiffs to move ahead with a negligent supervision claim, holding:

While the decision whether to invite certain speakers, or use certain rhetoric, is protected religious decision-making, reasonable supervision of an employee is a principle of tort law that applies neutrally to all employers. Further, the Church confirmed during oral argument that the Church’s supervision, or lack thereof, was not grounded in any religious doctrine or teachings.

It also held that the trial court properly dismissed a number of defamation claims. [Thanks to Tom Rutledge for the lead.]

Suit Challenges Arkansas Capitol Ten Commandments Monument

Suit was filed last month challenging the constitutionality of a Ten Commandments monument erected on the Arkansas state capitol grounds.  The complaint (full text) in Orsi v. Martin, (ED AR, filed 5/23/2018), alleges that the monument violates the Establishment Clause.  A press release from the American Humanist Association explains:

A similar monument was installed at the state capitol last year, only to be destroyed just hours after it was installed. The individual accused of destroying the display was subsequently found unfit to stand trial. Proponents of the display, led by state senator Jason Rapert, immediately began raising money for a replacement. Senator Rapert has publicly stated, “I am guilty as charged for supporting the Ten Commandments and… take full responsibility for being so bold as to believe that our state and our nation would be better off if people simply honored, followed and adhered to the Ten Commandments given by God Himself to Moses on Mt. Sinai.”  Rapert’s effort reportedly raised $85,000, which will provide a protective barrier around the new display.

NOTE TO READERS: RELIGION CLAUSE WILL BE ON A PUBLICATION BREAK

There will be sporadic or no postings on Religion Clause Blog between May 19 and June 4.  Look for Religion Clause to return with regular postings beginning June 5.

Wisconsin Supreme Court, Splitting Equally, Upholds Protection of Indian Graves

In Wingra Redi-Mix, Inc. v. State Historical Society of Wisconsin, (WI Sup. Ct., May 22, 2018), the Wisconsin Supreme Court  divided equally, 3-3, in a challenge to a concrete company that was seeking a permit to allow it to dig up Indian burial mounds located in its quarry.  The vote has the effect of affirming the appeals court opinion which upheld the State Historical Society's denial of a permit. An AP report has more on the decision and its background.

Michigan Civil Rights Commission Says Existing Law Covers LGBT Discrimination

The Detroit Free Press reports that at its meeting today, the Michigan Civil Rights Commission, by a vote of 5-0-1, agreed to expand its interpretation of the state's Larsen Civil Rights Act to cover discrimination based on sexual orientation or gender identity.  The Commission will treat discrimination on these grounds in employment, education, housing, real estate, public accommodations and public service as violations of the existing law. The Commission will begin accepting complaints reflecting this new interpretation starting tomorrow.  The state attorney general's office, however, takes the position that this kind of expansion of coverage required legislative action.

Australian Appeals Court Upholds Refusal To Allow Testimony From Plaintiff Wearing Niqab

In the Australian state of New South Wales, the Court of Appeal in Elzahed v. State of New South Wales, (NWCA, May 18, 2018), rejected a Muslim woman's contention that she should have been permitted to testify in her civil suit against police officers while her face was fully covered by a niqab.  Plaintiff was suing for assault allegedly occurring during the execution of a search warrant. The court said in part:

There was no error in the primary judge’s ruling that the appellant could not give evidence with her face covered by a niqab. The appellant was a party in the case, not merely a witness. The appellant’s evidence was strongly contentious. The resolution of the case would require the primary judge to make findings about whether to accept the appellant’s evidence or the conflicting evidence of the NSW police officers. Viewing the appellant’s face while she was giving her evidence was capable of affecting the resolution of that conflict. The primary judge did not err in concluding that fairness to all parties required her to reject the appellant’s application.

The appeals court pointed out that plaintiff had not asked the trial judge for alternative arrangements such as testifying from behind a screen so that her face would be visible only to to some of the people in the courtroom. Reporting on the decision, Australian Associated Press  adds this background information:

Moutia Elzahed, who's married to jailed Islamic State extremist Hamdi Alqudsi, tried unsuccessfully to sue the state and federal governments over claims of police violence during a 2014 raid on their Sydney home....

Judge Audrey Balla in mid-2017 ordered Elzahed pay $250,000 in costs to the commonwealth and state governments responsible for the federal and state police officers involved in the 2014 raid.

In early May, Elzahed became the first person in NSW to be found guilty of refusing to stand for a judge in court after insisting she only stood for Allah when she appeared before Judge Balla.

England's Chief Coroner Gives Guidance On Rapid Release of Bodies For Religious Reasons

As previously reported, in England last month a 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. Such requests are often made by Jewish and Muslim families whose beliefs call for burial quickly after death.  (See prior posting.)  Yesterday, the Chief Coroner of England and Wales issued Guidance No. 28 (full text), designed to give practical guidance to local coroners when expedited release is requested for religious or other reasons.  The Guidance reads in part:

14. The judgment in the AYBS Case reflects two important legal considerations: (i) that a coroner should be open to representations that a particular case should be treated as a matter of urgency (whether for religious or other reasons); and (ii) that proper respect should be given to representations based on religious belief.

15. However, the decision of the Court does not require a coroner to give automatic priority to deaths from particular religious communities, nor does it require coroners to drop other important work to deal with such deaths. The Court also recognised that other deaths may require urgent handling for non-religious reasons.

16. There is no obligation for coroners to adopt formal written policies for dealing with requests for expedition or for dealing with deaths from faith communities.... However, any policy or practices adopted by coroners must be sufficiently flexible to allow them to give due consideration to expediting decisions where there is good reason to do so. They should seek to strike a fair balance between the interests of those with a well-founded request for expedition (including on religious grounds) and other families who may be affected.

Jewish Chronicle reports on the new Guidance document.

11th Circuit Hears Arguments In Challenge To Cross In City Park

On Wednesday, the U.S. 11th Circuit Court of Appeals heard oral arguments in  Kondrat'yev v. City of Pensacola, Florida.  (Audio of full oral arguments).  In the case, a reluctant Florida federal district court judge held that a 34-foot concrete Latin Cross that has stood in a city park for decades violates the Establishment Clause. (See prior posting.)  Pensacola News Journal reports on the oral arguments.

Catholic Social Services Sues Philadelphia Over End To Foster Care Referrals

A suit was filed in a Pennsylvania federal district court this week by Philadelphia Catholic Social Services and two of its clients challenging action taken by the city of Philadelphia to stop foster care referrals to the agency.  The city took the action because of CSS's policy against placing foster children with same-sex couples.  The complaint (full text) in Fulton v. City of Philadelphia, (ED PA, filed 5/16/2018), alleges in part:

Catholic Social Services remains willing and able to continue its ministry serving children in Philadelphia. It wants to help alleviate the foster care crisis in Philadelphia, and it has not and will not prevent any qualified family from becoming a foster parent, be it through Catholic Social Services or a referral to another agency. But because of the City’s actions, Catholic Social Services is unable to place foster children with families. Its 100-year-old ministry to at-risk children is in jeopardy.

The complaint alleges violation of Pennsylvania's Religious Freedom Protection Act, the 1st and 14th Amendments. Pennsylvania constitutional provisions, the Philadelphia city charter and breach of contract. Becket Fund issued a press release announcing the filing of the lawsuit.

President's Ramadan Message

On May 15, as Ramadan was about to begin, President Trump issued a Presidential Message (full text) sending greetings and best wishes to Muslims in the U.S. and around the world.  He said in part:

Ramadan reminds us of the richness Muslims add to the religious tapestry of American life.  In the United States, we are all blessed to live under a Constitution that fosters religious liberty and respects religious practice.  Our Constitution ensures Muslims can observe Ramadan in accordance with the dictates of conscience and unimpeded by government.  By doing so, the Constitution also furnishes varied opportunities for all Americans to deepen their understanding of the human soul.

As so many people unite to celebrate Ramadan, Melania and I join in the hope for a blessed month.  Ramadan Mubarak.

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.

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.

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.

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.

Recent Articles of Interest

From SSRN:

• Katherine Means & Sara Rankin, Faith Is the First Step: Faith-Based Solutions to Homelessness, (Seattle University Homeless Rights Advocacy Project, 2018).
• Russell G. Pearce & Emily Jenab, Reflections on Identity, God and Lawyers, (Cosmologics Magazine (2017)).
• Mary Leary, Religious Organizations as Partners in the Global and Local Fight Against Human Trafficking, (CUA Columbus School of Law Legal Studies Research Paper, 2018).
• Iain T. Benson, Pluralism, Lifeworlds, Civic Virtues and Civil Charters, (in Pieter Coertzen, M. Christian Green and Len Hansen (eds), Religious Freedom and Religious Pluralism in Africa (Stellenbosch: Sun Media, 2016) pp. 287-306).
• Anny Retnowati & MG. Endang Suminarni, Criminal Policy on Hidden Defects in Marriage in Indonesia, (Global J. Bus. Soc. Sci. Review 6(1) 32–36 (2018)).
• Muhammad Ahmad, Pakistani Blasphemy Law between Hadd and Siyasah: A Plea for Reappraisal of the Ismail Qureshi Case (2017), (Islamic Studies, 56:1-2 (2017), 5-49).
• Mohammad Saiful Islam & Md. Saddam Hossen, Children Killing by Their Parents the Recent Unscrupulous Trends in Bangladesh: A Legal Analysis from Domestic and Islamic Law Perspectives, (Feb 20, 2017).
• Leah Chan Grinvald, Charitable Trademarks, (Akron Law Review, Vol. 50, p. 817, 2017).

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".

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.

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.

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. 

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.

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.)

Recent Articles and Books of Interest

From SSRN:

• Avishalom Westreich, Assisted Reproduction in Israel: Law, Religion, and Culture, (Brill Research Perspectives: Family law in a Global Society, 2018).
• Steven Douglas Smith, The Case of the Exemption Claimants: Religion, Conscience, and Identity, (San Diego Legal Studies Paper No. 18-345, 2018).
• Sidney Martin, Oklahoma's 'Bone-Dry' Law and the Fallacy of Legislative Accommodation Under Employment Division v. Smith, (January 12, 2017).
• Joel Harrison, Pope Francis, True Religion, and Religious Liberty, (Journal of Law and Religion, Vol. 33, No. 3, 2018).
• Joel Harrison, Sovereignty, (Nicholas Aroney and Ian Leigh (eds), Christianity and Constitutionalism (Cambridge University Press, 2018)).
• Nicholas Mignanelli, Is Satan a Transactions Attorney? An Account of Satanic Imagery in Law and Literature, (University of Miami Legal Studies Research Paper No. 18-16, 2018).
• Robert Kahn, Hate Speech, Democratic Legitimacy and the Age of Trump, (17 International and Comparative Law Review 239 (2017)).
• Kheinkor Lamarr, Jurisprudence of Minority Rights: The Changing Contours of Minority Rights, Proceedings of the 8th International RAIS Conference on Social Sciences (2018)).

From SSRN (Islamic law):

• Saadiya Suleman, Muslim Personal Law and Gender Equality Concerns in India, (Advances in Social Science, Education and Humanities Research, Volume 162, International Conference on Law and Justice (ICLJ 2017)).
• Reza Banakar & Keyvan Ziaee, The Life of the Law in the Islamic Republic of Iran, (Iranian Studies, Vol. 51, 2018, Forthcoming).

Recent Books:

• Kim, Davis, Under God's Authority, (Liberty Counsel, Feb. 2018).
• James Loeffler, Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century, (Yale Univ. Press, May 2018).
• Nadine Strossen, Hate: Why We Should Resist It with Free Speech, Not Censorship, (Oxford Univ. Press, May 2018).

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.