Ireland To Hold Referendum To Remove Blasphemy From Constitution

Ireland's Justice Minister announced last week that the Government has approved the holding of a referendum on a constitutional amendment to remove the offense of blasphemy from the constitution.  Currently Art. 40, Sec. 6 of Ireland's Constitution provides: "The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law." In announcing the referendum, Justice Minister Flannigan said:

In terms of Ireland’s international reputation, this is an important step.  Regrettably, there are some countries in the world where blasphemy is an offence, the punishment of which is being put to death.  In these countries, such laws are not an anachronism but a very real threat to the lives of those who do not share the views of those enforcing the laws.  Such situations are abhorrent to our beliefs and values.  By removing this provision from our Constitution, we can send a strong message to the world that laws against blasphemy do not reflect Irish values and that we do not believe such laws should exist.

Ireland's legislature must take additional steps to implement the referendum decision. [Thanks to Law & Religion UK for the lead.]

SPLC Pays $3.375M For Wrongful Inclusion On Extremist List

In a press release yesterday, the Southern Poverty Law Center issued an apology to Mr. Maajid Nawaz and his organization, the Quilliam Foundation, for wrongfully including them on its list of anti-Muslim extremists. SPLC said in part:

As part of our settlement, we have paid $3.375 million to Mr. Nawaz and Quilliam to fund their work to fight anti-Muslim bigotry and extremism. It was the right thing to do in light of our mistake and the right thing to do in light of the growing prejudice against the Muslim community on both sides of the Atlantic. We will look to our insurance carrier to cover the cost of the settlement.

Suit Over School's Curriculum on Islam Survives Motion To Dismiss On Pleadings

Hilsenrath v. School District of the Chathams, (D NJ, June 13, 2018), involves a disagreement between a school board and a parent over whether the curriculum in the middle school World Cultures and Geography course unconstitutionally promotes or endorses Islam. According to the court:

plaintiff alleges, C.H. has been exposed to two videos and a worksheet that contain materials that members of the Islamic faith use to express religious beliefs or proselytize others.’ The Complaint begins with a quotation from those materials: “May God help us all find the true faith, Islam. Ameen.” This is captioned as the Chatham school authorities’ “call for the conversion of 7th grade students.” Such materials, the Complaint alleges, have a primary purpose of promoting and advancing the Islamic religion. The Complaint also alleges that the curriculum gives insufficient attention to the Christian and Jewish religions.

The school board responded that:

The videos on Islam ... occupied a small part of the school year. They were part of a curriculum that covered many cultures and religions and would have been understood in that context.

The court refused to dismiss the complaint at the pleading stage, concluding:

However valid, or not, the defendants’ arguments may turn out to be, they furnish no basis for dismissal of the complaint. The information about the totality of the curriculum, for example, does not appear on the face of the complaint. And the sensitive balancing required by Lemon cannot be performed on the basis of mere allegations. Such considerations are simply premature.

Recent Prisoner Free Exercise Cases

In Dent v. Dennison, 2018 U.S. Dist. LEXIS 90043 (SD IL, May 30, 2018), an Illinois federal district court allowed an inmate to move ahead with his claim that he was excluded from 3 Protestant religious services in retaliation for filing a sexual harassment claim against a volunteer pastor at the prison for his anti-LGBT comments.

In Garner v. Lisenbe, 2018 U.S. Dist. LEXIS 90682 (ED MO. May 31, 2018), a Missouri federal district court dismissed an inmate's complaint that space formerly used for religious services was turned into housing units.

In Ervin v. Foxwell, 2018 U.S. Dist. LEXIS 91805 (D MD, June 1, 2018), a Maryland federal district court dismissed an inmate's complaint that he was served sausage with pork products in it for breakfast on one day.

In Savastano v. LaClair, 2018 U.S. Dist. LEXIS 93435 (ND NY, May 31, 2018), a New York federal magistrate judge recommended allowing a Muslim inmate to move ahead to seek injunctive relief on his complaint that there is no imam on staff and that he is denied a diet consistent with his religious beliefs.

In Estes v. Clarke, 2018 U.S. Dist. LEXIS 94322 (WD VA, June 5 2018), a Virginia federal district court granted summary judgment to a Jewish inmate who complained that the common fare diet does not meet the requirements for kosher food. It dismissed challenges regarding Passover, use of a Shofar and observance of fast days.

In Hill v. Tanner, 2018 U.S. Dist. LEXIS 94220 (ED LA, June 4, 2018), a Louisiana federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 95190, May 10, 2018) and held that mandatory streaming of religious services on all unit TV sets 3 times per week does not violate the Establishment or Free Exercise Clause.

In Banks v. Cuevas, 2018 U.S. Dist. LEXIS 95217 (ND OH, June 6, 2018), an Ohio federal district court, in  a suit by a Wiccan inmate who claimed interference with the practice of his religion and retaliation, held that a Bivens action for damages is not available in prisoner free exercise cases.

In Amon-Ra v. Ryan, 2018 U.S. Dist. LEXIS 96011 (D AZ, June 5, 3018), an Arizona federal district court dismissed a Muslim inmate's complaint that  he was denied a special meat for the Eid at the conclusion of Ramadan, that prison officials were one day off for their announced beginning of Ramadan and he ws not initially placed on the Ramadan turnout.

In Vick v. Core Civic, 2018 U.S. Dist. LEXIS 97658 (MD TN, June 11, 2018), a Tennessee federal district court, in a prisoner suit primarily focusing on other issues, held that an inmate can move ahead with his complaint that prisoners are not allowed to attend any religious services while housed in the RCA pod.

In Hargrove v. Frisby, 2018 U.S. Dist. LEXIS 98017 (SD OH, June 12, 2018), an Ohio federal magistrate judge recommended dismissing a Muslim inmate's complaint that while in disciplinary segregation for 3 months he could attend only 1 of the 2 types of Muslim religious services each week.

Police Misinformation To Parents Did Not Violate Their Religious Exercise Rights

Estate of Manolios v. Wickersham, (ED MI, June 13, 2018), is a suit against Macomb County, Michigan sheriff and police officers alleging numerous constitutional violations in their investigation of a fatal car accident.  The primary allegation was that authorities wrongfully identified Jonathan Manolios as the driver in order to protect the true driver who was a family friend of one of the investigating police officers. Among  the numerous allegations in the lawsuit was the following:

After the accident, Jonathan Manolios’ parents asked Defendants where their son’s body was found in relation to the crash scene. According to Plaintiffs, they sought this information because their religious beliefs required them to memorialize the location. Plaintiffs allege that Defendant Kennedy initially refused to provide this information, but then inaccurately identified the location...

The court dismissed this claim, saying:

... [T]he most that can be said of Kennedy’s alleged misconduct is that it failed to aid Plaintiffs in the practice of their religion. Plaintiffs did not know where Jonathon’s body was found after the accident regardless of what Kennedy did or did not do. As such, Plaintiffs could not have followed their religious obligation to memorialize that location even if Kennedy never provided the incorrect location.

In short, Plaintiffs identify no clearly establish law that would inform a reasonable official that the type of conduct alleged here violated Plaintiffs’ right to freely exercise their religion. For these reasons, the Court holds that Plaintiffs fail to state a viable First Amendment violation claim.

Florida Appeals Court Upholds Priest's Objections To Testifying About Statements Made In Confessional

In Ronchi v. State of Florida, (FL App., June 15, 2018), a Florida state appellate court held that it would violate Florida's Religious Freedom Restoration Act to require a Catholic priest, Fr. Vincenzo Ronchi, to testify about a sex abuse victim's statements made during a confession, even though the victim had waived the priest-penitent privilege.  The alleged abuse occurred when the victim was 7 and 13. She was 18 when the trial of her abuser was to take place. In quashing the trial court's order that the priest testify, the appellate court said in part:

.. [I]f Ronchi complies with the State’s demand that he testify as to his communications with the alleged victim during the Sacrament of Reconciliation, Ronchi would be forced to engage in conduct that is prohibited by the Catholic Church (and, indeed, would subject him to possible excommunication from the Church). Thus, the trial court’s order can only be upheld if the State establishes that coercing Ronchi’s testimony furthers a compelling governmental interest and is the least restrictive means to further that interest.

Here, it is undisputed that the State has a compelling governmental interest in prosecuting sex offenses perpetrated against children.... 

However, we disagree with the State’s contention that coercing Ronchi to testify ... would be the least restrictive means to further its compelling governmental interest of prosecuting Burton. First, as the State acknowledges, the testimony of Ronchi would, at most, be corroborative evidence.... Second, this case does not involve a child victim who, because of his or her tender age, might be unable to adequately testify as to the alleged sexual abuse. The alleged victim in this case is now an adult, and there is nothing in the record that suggests that she would be unable to testify as to the relevant events.

Canada's Supreme Court: Provinces Can Refuse Law School Accreditation Over LGBTQ Rights

In a pair of decisions today, the Supreme Court of Canada held that the bodies controlling the legal profession in British Columbia and Ontario can, without violating Canada's Charter of Rights and Freedoms, refuse to accredit Trinity Western University's proposed new law school.  At issue in Law Society of British Columbia v. Trinity Western University and in Trinity Western University v. Law Society of Upper Canada, (Sup. Ct. Canada, June 15, 2018), is the requirement by Trinity Western, an evangelical Christian university, that its students and faculty abide by a religiously-based code of conduct.  The so-called Community Covenant Agreement prohibits "sexual intimacy that violates the sacredness of marriage between a man and a woman."  In 7-2 decisions, the court concluded that the decision to refuse accreditation significantly advances the objective of maintaining equal access to and diversity in the legal profession and prevents the risk of significant harm to LGBTQ people.  In British Columbia decision, the court added:

The public confidence in the administration of justice could be undermined by the LSBC’s decision to approve a law school that forces some to deny a crucial component of their identity in the most  private and personal of spaces for three years in order to receive a legal education.

In the Ontario decision, the court said in part:

The LSUC’s decision means that TWU’s community members cannot impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm. The LSUC chose an interpretation of the public interest which mandates access to law schools based on merit and diversity, rather than exclusionary religious practices.

CBC News reports on the decision.

Court Enforces Document Subpoena Against Texas Catholic Bishops

Last year a suit was filed in Texas federal district court challenging the constitutionality of a Texas law that requires health providers to bury or cremate fetal remains after an abortion. (See prior related posting.) A preliminary injunction against enforcement of the law was issued in January.  Now, as the case moves toward trial, a federal district court has rejected a motion filed by the Texas Catholic Conference of Bishops attempting to quash a subpoena for documents.  In Whole Woman's Health v. Smith, (WD TX, June 13, 2018), the court rejected a free exercise challenge to a subpoena for e-mails relating to burial, cremation, or disposition of fetal or embryonic tissue.  The court said in part:

The documents requested do not address religious doctrine or church governance, but instead relate directly to a factual issue that will be central at trial: precisely what burial services are available, and will remain available, to abortion providers in Texas. That the primary organization presently offering to make those services available is a church does not make the relevant facts immune from discovery....

...  [E]ven if there would be some chilling effect on the members of the TCCB if the subpoenaed documents are produced—and that is doubtful—the Plaintiffs’ interest in obtaining the documents is sufficient to outweigh any such impact.

Settlement Reached In Muslim Women's Suit Against California Restaurant

A settlement agreement (full text) was reached yesterday in a lawsuit filed in May 2016 (see prior posting) by 7 Muslim women against a Laguna Beach, California restaurant.  The women claimed they were singled out because they were Muslim and were told to leave for overstaying the restaurant's 45-minute rule. The settlement is described in an ACLU press release:

Seven Muslim women ejected from an Urth Caffe restaurant by its management have obtained a settlement agreement requiring the restaurant chain to hold diversity trainings for its employees and update its policies....

Urth Caffe has also agreed, under the settlement, to clarify its seating policy to ensure it is applied consistently to all customers and to include in its employee handbook a requirement that customer diversity be respected.

The restaurant chain also agreed to open its Laguna Beach location all day on June 16 with free drinks and desserts for all customers in a public celebration of Eid al-Fitr, the end of the Muslim holy month of Ramadan.

Sessions Responds To Church Leaders' Criticism of Immigration Policy

As reported by NBC News, Attorney General Jeff Sessions yesterday in a speech to law enforcement officers in Ft. Wayne, Indiana (full text) responded to criticism from Christian evangelical groups of the Administration's policy of separating parents from children in arresting those crossing the border illegally.  Sessions said in part:

Let me take an aside to discuss concerns raised by our church friends about separating families. Many of the criticisms raised in recent days are not fair or logical and some are contrary to law.

First- illegal entry into the United States is a crime—as it should be. Persons who violate the law of our nation are subject to prosecution. I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order....

Please note, Church friends, that if the adults go to one of our many ports of entry to claim asylum, they are not prosecuted and the family stays intact pending the legal process.

The problem is that it became well known that adults with children were not being prosecuted for unlawful entry and the numbers surged from 15,000 in 2013 to 75,000 four years later....

My request to these religious leaders who have criticized the carrying out of our laws to also speak up strongly to urge anyone who would come here to apply lawfully, to wait their turn, and not violate the law.

Suit Challenges Local Bans On Conversion Therapy For Minors

A suit was filed this week in a Florida federal district court challenging the constitutionality of ordinances enacted by the city of Boca Raton and by Palm Beach county which prohibit licensed counselors from practicing conversion therapy on minors.  The complaint (full text) in Otto v. City of Boca Raton, Florida, (SD FL, filed 6/13/2018), filed on behalf of counselors and their patients, contends that the ordinances violate speech and religious exercise rights under the federal and state constitutions, as well as state statutory protection of religious exercise and other state statutory provisions. Liberty Counsel issued a press release announcing the filing of the lawsuit.

Suit Alleges Viewpoint Discrimination In Distribution of Student Activity Fees

A suit was filed yesterday against officials at Ball State University by "Students for Life at BSU" alleging, among other things, viewpoint discrimination in distribution of student activity fees.  The complaint (full text) in Students for Life at Ball State University v. Hall, (SD IN, June 13, 2018), alleges that the pro-life student group's request for $300 from student activity fees was denied, apparently under the Guideline excluding from funding "[a]ny Organization which engages in activities, advocacy, or speech in order to advance a particular political interest, religion, religious faith, or ideology."  The suit alleges that the refusal violates plaintiffs' 1st and 14th Amendment rights.  ADF issued a press release announcing the filing of the lawsuit.

Pence Addresses Southern Baptist Convention Annual Meeting

Vice President Mike Pence yesterday delivered a 35-minute address (full text) at the Southern Baptist Convention Annual Meeting in Dallas, Texas.  He said in part:

... 40 years ago this spring, I heard the very message that Southern Baptists speak so faithfully across this nation every day ...that “God so loved the world, that He gave his only begotten Son, that whosoever might believe in Him would not perish, but have everlasting life.”  And I walked the sawdust trail that night in 1978, and gave my life to Jesus Christ, and it’s made all the difference....

So thank you for carrying that timeless message everyday with such faithfulness to the American people.  The truth is, Southern Baptists have always worked to bring about renewal of America, and new beginnings.  And as I stand before you today, I believe that our nation is in the midst of a time of renewal.  And we are in the midst of a new beginning of greatness in America.

CNN reported that some in attendance "were disturbed by the overtly political tone" of much of the rest of Pence's remarks, adding:

many Southern Baptists, particularly people of color and younger members, were put off by the decision to allow Pence a platform at what's supposed to be a nonpolitical event.

Another Permanent Injunction Against Contraceptive Mandate For Religious Colleges

In yet another in a line of cases, the Trump Administration has conceded that applying the Obama-era contraceptive mandate rules to religious non-profits would violate RFRA.  This time in Dordt College v. Azar, (ND IA, June 12, 2018), an Iowa federal district court issued a permanent injunction against enforcing the rules against Dordt College and Cornerstone University to the extent that doing so would violate their religious consciences.  This specifically includes services that the schools view as abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling.  Detroit Free Press reports on the decision. Cornerstone University is in Michigan, while Dordt College is located in Iowa.

DOJ Announces New Initiative To Protect Relocation For Religious Institutions

In a press release yesterday, the Department of Justice announced a new Place To Worship Initiative:

[The Initiative] will focus on protecting the ability of houses of worship and other religious institutions to build, expand, buy, or rent facilities....

The Department will work with the United States Attorney’s Offices to strengthen awareness of the land use provisions of RLUIPA by: hosting community outreach events across the country, educating municipal officials and religious organizations about RLUIPA’s requirements, and providing additional training and resources for federal prosecutors.

Along with launching the Initiative, DOJ also announced that it has filed a RLUIPA lawsuit against Borough of Woodcliff Lake, New Jersey.  The complaint (full text) in United States v. Borough of Woodcliff Lake, (D NJ, filed 6/13/2018), contends that the town imposed a substantial burden on a Chabad synagogue when it denied it a variance to allow it to expand on its current site.  The expansion plans were developed after attempts to acquire other sites were frustrated by the Borough.  New York Post reports on the lawsuit.

New USCIRF Chair Is Tibetan Buddhist

The U.S. Commission on International Religious Freedom announced that yesterday it elected Dr. Tenzin Dorjee, a Tibetan Buddhist, as its Chair, and Kristina Arriaga and Gayle Manchin as Vice-Chairs.  Dorjee is Associate Professor of Human Communication Studies at California State University, Fullerton. He has served as translator for the Dalai Lama.

Jewish Worshipers In Nigeria Arrested; Most Later Released On Bail

The Oracle reports that in Nigeria, nine Jewish worshipers were arrested on May 13 on charges of terrorism.  Eight of the nine were released on bail on Monday.  The ninth was still held because his file had disappeared. The arrests occurred while the nine were praying at the country home of Biafran separatist leader Nnamdi Kanu who considers himself Jewish.  Defendants' lawyer accuses the state of religious persecution, and says that anyone identifying with Kanu has become the target of Nigerian security forces.

Court Says Tribe Has Standing, But Did Not Prove Its RFRA Claim

As previously reported, in March an Oregon federal magistrate judge recommended dismissing a RFRA challenge to the destruction of sacred Native American burial grounds.  In reviewing the magistrate's recommendation, the district court in Slockish v. U.S. Federal Highway Administration, (D OR, June 11, 2018) held, disagreeing with the magistrate judge, that plaintiffs have standing to bring the challenge.  However the court still held that the RFRA claim should be dismissed because plaintiffs had not established a prima facie case of a substantial burden on their religious exercise.  Reporting on the decision, KUOW News says that members of the Confederated Tribes and Bands of the Yakama Nation and members of the Confederated Tribes of Grand Ronde will appeal to the 9th Circuit.

Permanent Injunction Issued In Ethics Battle By Alabama Justice

As previously reported, in March an Alabama federal district court issued a preliminary injunction, holding that provisions in the Alabama Canons of Judicial Ethics that were invoked against Alabama Supreme Court Justice Tom Parker are unconstitutional.  At issue was a ethics complaint over comments by Parker about the impact of the U.S. Supreme Court's Obergefell decision on an earlier Alabama Supreme Court order barring probate judges from issuing licenses for same-sex marriages.  Now the parties have agreed on the scope of a permanent injunction, and this week in Parker v. Judicial Inquiry Commission of the State of Alabama, (MD AL, June 11, 2018), the court issued an opinion and the consent injunction, barring the state Judicial Inquiry Commission from enforcing Canons 1, 2A and 3A(6):

to proscribe or punish any public comment by a judge unless the public comment can reasonably be expected to affect the outcome or impair the fairness of a proceeding pending or impending in any court. Public discussion by judges or judicial candidates of an issue of public importance cannot be proscribed or punished ... merely because that issue may happen to be the subject of a pending or impending proceeding in any court.

Liberty Counsel issued a press release on the court's action.

Church Sues, Surprised By Zoning Law Change

A suit was filed last week in a North Carolina federal district court by a small church challenging the zoning regulations that prevent it from using space it rented and renovated for worship services.  The complaint (full text) in At the Cross Fellowship Baptist Church Inc v. City of Monroe, North Carolina, (WD NC, filed 6/4/2018), recounts that the church leased the space after being assured by the landlord that another church had operated there in the recent past.  However, unknown to the church, an amended zoning law had been enacted in the interim which did not include churches as a permitted use there. The complaint alleges that the zoning ordinance violates its rights under RLUIPA and under the 1st and 14th Amendments.  ADF issued a press release announcing the filing of the lawsuit.

Supreme Court Denies Review In Two Church Property Cases

Today the U.S. Supreme Court denied review in two unrelated cases involving disputes over church property after the break away of a congregation from its parent body..  It denied certiorari in Presbytery of the Twin Cities Area v. Eden Prairie Presbyterian Church, Inc., (Docket No. 17-582, cert. denied 6/11/2018) (Order List).  In the case, the Minnesota Court of Appeals held that it was proper to apply the "neutral principles of law" approach, rather than applying the ecclesiastical abstention doctrine, to decide ownership of property of a congregation which had disaffiliated from the Presbyterian Church USA. (See prior posting).

The court also denied certiorari in Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (Docket No. 17-1136, cert. denied 6/11/2018) (Order List).  In the case, the 5-member South Carolina Supreme Court in 5 separate opinions resolved a property dispute that arose after a split in the Episcopal Church in South Carolina. (See prior posting.)

Vice President Concerned About Aid To Iraqi Christians and Yazidis

Vice President Mike Pence issued a statement (full text) on Friday on promised U.S. aid to Iraq's Christian and Yazidi communities, saying in part:

To save what remains of these ancient and proud peoples, President Trump directed the United States government to stop using slow, ineffective and wasteful United Nations programs and to instead distribute assistance through USAID.... 

While progress has been made to help these beleaguered people, there is more to do to fulfill the commitments made to them and not to mention – our own consciences.

The Vice President will not tolerate bureaucratic delays in implementing the Administration’s vision to deliver the assistance we promised to the people we pledged to help.

The Vice President directed USAID Administrator Mark Green to travel to Iraq in the coming weeks to report back with an immediate comprehensive assessment...

Recent Articles and Book of Interest

From SSRN:

• Kenneth Einar Himma, An Unjust Dogma: Why a Special Right to Religion Wrongly Discriminates Against Non-Religious Worldviews, (San Diego Law Review, Vol. 54, No. 1, 2017).
• Caroline Mala Corbin, Is There Any Silver Lining to Trinity Lutheran Church, Inc. v. Comer?, (Michigan Law Review Online, Vol. 116, p. 137, 2018).
• Richard W. Garnett & Jackson C. Blais, Religious Freedom and Recycled Tires: The Meaning and Implications of Trinity Lutheran, (2016-17 Cato Supreme Court Review 105).
• Richard W. Garnett, Freedom 'for' Religion: (Yet) Another View of the Cathedral, (in Brett G. Scharffs, Asher Maoz, and Ashley Isaacson Woolley, eds., Religious Freedom and the Law: Emerging Contexts for Freedom for and Freedom From Religion (Routledge 2019 Forthcoming)).
• Nadia N. Sawicki, Disentangling Conscience Protections, (Hastings Center Report, Forthcoming).
• Richard W. Garnett, "Afterword," (in S. Hendrianto, S.J., ed., Priests, Lawyers, and Scholars: Essays in Honor of Robert J. Araujo, S.J." (Franciscan Univ. Press 2017)).
• Barry W. Bussey, The Right of Religious Hospitals to Refuse Physician-Assisted Suicide, ((2018) 85 S.C.L.R. (2d)).
• Netta Barak Corren, The War Within, (May 23, 2018).
• B. Jessie Hill, Sex, Lies, and Ultrasound, (89 University of Colorado Law Review 421 (2018)).
• Reva Siegel & Linda Greenhouse, The Unfinished Story of Roe v. Wade, (Yale Law School, Public Law Research Paper (2018)).
• Kevin M. Barry & Jennifer Levi, Blatt v. Cabela's Retail, Inc. and a New Path for Transgender Rights, (Yale Law Journal Forum, Vol. 127, p. 373, 2017).
• Albertina Antognini, Against Nonmarital Exceptionalism, (UC Davis Law Review, Vol. 51, 2018 (Forthcoming)).

From SSRN (Islamic law):

• Kerstin Steiner, Branding Islam: Islam, Law and Bureaucracies in Southeast Asia, (37(1) Current Journal of Southeast Asian Affairs (2018)).
• Dominik Müller & Kerstub Steiner, The Bureaucratisation of Islam in Southeast Asia: Transdisciplinary Perspectives,  (37 (1) Journal of Current Southeast Asian Affairs (2018)).
• Haider Ala Hamoudi & Mark Cammack, Islamic Law in Modern Courts (Introduction), (Aspen Casebook Series, 2018).

From SmartCILP and elsewhere:

• Valerie J. Munson, On Holy Ground: Church Sanctuary in the Trump Era, 47 Southwestern Law Review 49-60 (2017).
• Ian P. Farrell. Book Review. From Premodern Christianity to the Postmodern Jury. 53 Tulsa L. Rev. 247-259 (2018). 
• Jason E. Whitehead, Book Review. Faith, Reason, and Liberal Legal Neutrality, 53 Tulsa Law Review 375-393 (2018).
• Robert E. Rains, Icing on the Wedding Cake: Same-sex Marriage and Religious Objections--Is There an Accommodation That Will Make Everyone Equally Happy (Or Unhappy)?, 42 Vermont Law Review 191-225 (2017).
• Elise Goss-Alexander, Policy Focus: Women and Religious Freedom, (USCIRF, May 2018).

Recent Book:

• Mohammad Hashas, Jan Jaap de Ruiter & Niels Valdemar Vinding (eds), Imams in Western Europe: Developments, Transformations, and Institutional Challenges, (Amsterdam University Press, May 2018).

Recent Prisoner Free Exercise Cases

In Harris v. Escamilla, (9th Cir., May 24, 2018), the 9th Circuit allowed a Muslim inmate to move ahead with claims that a correctional officer intentionally desecrated his Koran.

In Broyles v. Marks, 2018 U.S. Dist. LEXIS 85486 (D KA, May 22, 2018), a Kansas federal district court dismissed an inmate's complaint that there was no variety in the kosher meals served to him.

In Adams-Bey v. Rogers, 2018 U.S. Dist. LEXIS 85754 (WD NC, May 17, 2018), a North Carolina federal district court dismissed an inmate's claim of religious discrimination. Plaintiff alleged discrimination against him for being a "Moorish-American" by seizing legal petitions.

In Murphy v. Scott, 2018 U.S. Dist. LEXIS 85907 (ED TX, May 22, 2018), a Texas federal magistrate judge dismissed a Jewish inmate's complaint that he did not receive meat-free bag meals when his unit was on lock down.

In White v. Lee, 2018 U.S. Dist. LEXIS 87067 (D SC, May 24, 2018), a South Carolina federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 87398, April 16, 2018), and dismissed without prejudice an inmate's claim of confiscation of his religious material.

In Martinez v. Arizona Department of Corrections, 2018 U.S. Dist. LEXIS 87418 (D AZ, May 23, 2018), an Arizona federal district court dismissed a Native American inmate's complaint that his medicine bag with feathers attached was missing after a search of his cell.

In Scott v. Uhler, 2018 U.S. Dist. LEXIS 88233 (ND NY, May 24, 2018), a New York federal magistrate judge recommended that a Muslim inmate be allowed to move ahead with an equal protection challenge to the cancellation of Jumm'ah services on Christmas day.

In Kelly v. Montgomery, 2018 U.S. Dist. LEXIS 88522 (SD CA, May 24, 2018), a California federal magistrate judge recommended that an inmate be allowed to move ahead with his challenge to the denial of his request to change his name to that of his step-father to honor the religious requirement to honor his father.

In Bullock v. Cohen, 2018 U.S. Dist. LEXIS 88708 (D NJ, May 29, 2018), a New Jersey federal district court dismissed without prejudice an inmate's complaint that there is no designated place to assemble for religious services.

In Muhammad v. Wheeler, 2018 U.S. Dist. LEXIS 89295 (ED AR, May 29, 2018), an Arkansas federal district court denied a stay pending appeal in a case in which it had held that authorities must provide a Muslim inmate with halal meals, including a once per day serving of meat. It issued an injunction requiring fish 3 or 4 times per week, and chicken, turkey or beef the remainder of the times.

Austria Closes 7 Mosques, Targets Up To 60 Foreign-Funded Imams

CNN  and the New York Times report that yesterday Austria's Chancellor Sebastian Kurz for the first time invoked the country's 2015 Islam Law (full text) (summary) to close seven mosques and expel up to 60 imams. The law aims at barring radical Islam and prohibits foreign funding of Islamic communities.  The Arab Cultural and Religious Community, and six mosques it operates, were ordered closed on suspicion of promoting radical Islam.  A seventh mosque operated by a far right-wing group known as the Gray Wolves was also ordered closed.  The influx of refugees from Syria since 2015 has increased the Muslim population, and Turkish-trained imams, who continue to receive funding from Turkey, now work in Austria. They are the imams being targeted.

Court Allows Archbishop Sheen's Remains To Be Moved To Illinois

A New York trial court yesterday ruled in a rather bitter dispute that the remains of the late Archbishop Fulton J. Sheen should be moved from a crypt in  New York's St. Patrick's Cathedral to a Cathedral in Peoria, Illinois, where he was ordained as a priest. (See prior related posting.) In Cunningham v. Trustees of St. Patrick's Cathedral, (NY Cty., June 8, 2018), the court (on remand from the Appellate Division) relied on the belief of Sheen's niece that the move is the only way to advance the Cause for Sheen being declared a saint.  Peoria's Bishop Daniel Jenky was the Promoter for the Cause of Sainthood for Sheen, but refused to continue his advocacy until Sheen's remains are moved.  The New York Archdiocese is not interested in promoting the sainthood Cause.  The court concluded:

The evidentiary hearing revealed that the location of Archbishop Sheen's final resting place would not have been his primary concern; his focus was on souls rather than the location of earthly remains. ...[B]ecoming a saint would allow Archbishop Sheen to accomplish his highest calling-- to reach as many believers as possible and to intercede on their behalf.

The Diocese of Peoria issued a press release reacting to the decision.  WJBC and Church Militant both reported on the decision.

New Jersey Legislature Again Votes To Ban All Marriages For Those Under 18

Yesterday the New Jersey legislature gave final passage to S-427 (full text). The bill prohibits persons under age 18 from entering into a marriage or civil union.  The bill eliminates the provisions in current law that allow persons to marry with parental consent at age 16 or with judicial approval at a younger age.  New Jersey Law Journal says that it is unclear whether Gov. Phil Murray will sign the bill.  Last year then-Governor Christie vetoed a similar bill, saying that without some exceptions it would violate religiously-based customs of some communities. (See prior posting.)

President Hosts Iftar Dinner At White House

The White House on Wednesday hosted an Iftar dinner at which President Trump delivered remarks (full text).  The President said in part:

At tonight’s dinner, we especially are pleased to welcome members of the diplomatic corps, representing our friends and partners across the globe.  And a very warm welcome to all of the ambassadors here tonight representing Muslim-majority nations....  To each of you and to the Muslims around the world: Ramadan Mubarak.

... Iftars mark the coming together of families and friends to celebrate a timeless message of peace, clarity, and love.  There is great love.  It’s a moment to call upon our highest ideals, and to give thanks for the many blessings we enjoy.  Thank you very much.

AP reports on the event, contrasting the President's welcoming remarks with anti-Muslim rhetoric used during his campaign.  Some Muslim groups, in protest, organized a "NOT Trump’s Iftar" across from the White House.

Muslim Woman Sues Under Title VII Over Failure To Accommodate Hijab

A lawsuit was filed in a Virginia federal district court last week against a Hanover, Virginia health care facility by a Muslim woman whose employment as a nursing assistant was terminated because she insisted on wearing a hijab. The complaint (full text) in Brooks v. Medical Facilities of America, Inc., (ED VA, filed 5/31/2018) contends that the employer's refusal to provide a reasonable accommodation violated Title VII of the 1964 Civil Rights Act.  The Richmond Times-Dispatch reports on the lawsuit.

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.