Court Rejects Challenges To Foster Care Agency Non-Discrimination Requirement

In Fulton v. City of Philadelphia, (ED PA, July 13, 2018), a Pennsylvania federal district court rejected Catholic Social Services challenges to the requirement that it not discriminate against same-sex couples in foster care placement.  CSS argued that the requirement violates the Free Exercise, Free Speech and Establishment Clauses of the 1st Amendment as well as Pennsylvania's Religious Freedom Act. The court refused to issue a preliminary injunction against enforcement of the requirement, saying in part:

CSS’s compliance with the terms of the Services Contract does not: constrain or inhibit CSS from conduct or expression mandated by its religious beliefs, curtail CSS’s ability to express adherence to CSS’s religious faith, deny CSS a reasonable opportunity to “provide foster care to children,” or compel CSS to engage in conduct or expression that violates a “specific tenet” of CSS’s religious faith....

CSS contends that the provision of certification services for same-sex couples would require CSS to express its religious approval of same-sex relationships in contravention of Catholic teaching about marriage. This is not the case. To illustrate this point, if, for example, CSS were to certify a couple where one spouse is previously divorced, CSS’s certification would not suggest that CSS approved of divorce as a religious matter.

Philadelphia Inquirer reports on the decision.

Bus Ad space Is Limited Forum, Allowing Rejection of Ads On Religious Matters

In Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System, (MD PA, July 9, 2018), a Pennsylvania federal district court rejected a constitutional challenge to the policy that excluded controversial public issue advertising on Lackawanna buses. Among other things, the policy, in its latest version, excludes ads

that promote the existence or non-existence of a supreme deity, deities, being or  beings; that address, promote, criticize or attack a religion or religions, religious  beliefs or lack of religious beliefs; that directly quote or cite scriptures, religious text or texts involving religious beliefs or lack of religious beliefs; or are otherwise religious in nature.

The suit was brought by the Freethought Society after its proposed ad was rejected.  In ruling for the Transit Authority, the court held that: 

COLTS’ advertising space is a limited forum and  that COLTS did not violate Freethought’s First Amendment free speech rights when  it refused to display Freethought’s advertisements containing the word “atheists” on COLTS’ buses.

Scranton Times Tribune reports on the decision.

Another Injunction Against ACA Contraceptive Mandate

Following the lead of a number of other courts, this week a Florida federal district court in Ave Maria School of Law v. Azar, (MD FL, July 11, 2018) reopened a case and granted a permanent injunction against enforcing the contraceptive coverage mandate against Ave Maria. The injunction applies to the requirement to provide insurance coverage for sterilization and contraceptive drugs, devices, or procedures to which the Catholic school has religious objections.  The Trump Administration has conceded that applying the Obama Administration's accommodation rules to religious non-profits would violate the Religious Freedom Restoration Act. ADF issued a press release announcing the decision.

Malaysia Swears In First Non-Muslim Chief Justice

According to Benar News, Malaysia this week swore in its first non-Muslim Chief Justice of its highest court, the Federal Court of Malaysia.  The new chief justice is Richard Malanjum, a Christian member of the Kadazandusun tribe from Malaysian Borneo.

Czech Cardinal Sues Over Blasphemous Plays

According to Radio Praha yesterday:

The head of the Czech Roman Catholic Church, Cardinal Dominik Duka, has filed a lawsuit over a pair of theatre plays staged in Brno in May.... The ... plays Our Violence, Your Violence and The Curse included a scene in which Jesus rapes a Muslim woman as well as a depiction of Pope John Paul II in a state of tumescence....

Cardinal Duka says that the theatre show represented an attack on his rights guaranteed by the Charter of Fundamental Rights and Freedoms ... specifically ... freedom of religion and the right to dignity and honour....

Church Autonomy Doctrine Applies To Shaming By Group Teaching Reincarnation

In Hubbard v. J Message Group Corp., (D NM, July 11, 2018), a New Mexico federal magistrate judge dismissed under the church autonomy doctrine defamation, invasion of privacy and intentional infliction of emotional distress claims against JMGC, also known as Companions of Wisdom. The organization promotes reincarnation-based teachings. The court summarizes plaintiff's allegations:

JMGC lures people who are looking for spiritual direction and altruistic involvement.... When prospective members wish to advance their association with JMGC and share details of their personal lives with Defendants, Defendants collectively engage in a process designed to control, isolate, shame, emotionally harm, and take advantage of the prospective members.... Members who dissent or question the leadership’s directives become the targets of “shaming conduct”—meaning that Defendants “collectively disseminate false information coupled with outrageous accusations, in CoW communications, designed solely to cause dissenting members substantial emotional and psychological trauma.” ... Dissenting members are subjected to this “shaming conduct” until they recant their dissent or quit the organization....

Finding that the 1st Amendment requires dismissal, the court said in part:

JMGC/CoW, an organization that exists to promote its reincarnation-based spiritual doctrine and whose membership is required to adhere to its “religious” precepts, is entitled to First Amendment protections against tort claims on par with churches and other religious organizations. That is, ... JMGC/CoW retains exclusive control, protected by the First Amendment, over matters concerning “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” ...

As alleged in the Complaint, the conduct giving rise to Plaintiff’s claims originally stemmed from an internal dispute between Plaintiff and the leadership of JMGC prompted by Plaintiff’s “inquiring nature” and her “resistance” to the directives of the leadership. It is evident from the face of the Complaint, however, that JMGC is an authoritarian organization that does not permit dissent or questions regarding its doctrines or leadership. Thus, when she dissented from and questioned the leadership’s directives, to permit Plaintiff to pursue her claim for damages based on Defendants’ having ostracized and defamed her would, in the context of this case, amount to impermissible government interference with Defendants’ right to practice their faith....

The statements and conduct giving rise to Plaintiff’s lawsuit cannot be adjudicated without impermissible intrusion upon Defendants’ right, guaranteed by the First Amendment, to freely exercise their religion. Each of Plaintiff’s claims, if adjudicated in a civil trial, would require the jury (or judge in the role of fact-finder) to resolve questions that are rooted in religion. For example, in order to succeed in her defamation claim or in her false light invasion of privacy claim, Plaintiff would have to prove, among other things that, as a matter of fact, Plaintiff does not: have “a split who is a porn star”; Plaintiff’s soul has not been part of “several sex cults”; and that no aspect of Plaintiff’s soul was sexually or financially “predatory” within JMGC/CoW.

Hawaii Supreme Court Denies Review In Cse of B&B's Refusal To Rent To Lesbian Couple

In an Order (full text) entered July 10, the Hawaii Supreme Court in Cervelli v. Aloha Bed & Breakfast denied certiorari.  In the case, a Hawaii sate appeals court (see prior posting) held that a 3-room bed & breakfast violated the state's public accommodation law when the B&B owner refused on religious grounds to accept a room reservation from a lesbian couple.  The appeals court also rejected privacy and free exercise defenses. AP reports on the state Supreme Court's denial of review. [Thanks to Tom Rutledge for the lead.]

European Court: Data Protection Directive Applies To Jehovah's Witnesses Information Collected In Preaching

In Tietosuojavaltuutettu v Jehovan todistajat — uskonnollinen yhdyskunta,  (CJEU, July 10, 2018), the Court of Justice of the European Union held that the European Parliament's Directive 95/46 on protection of individuals' personal data applies to collection and manual processing of personal data by Jehovah's Witnesses in the course of their door-to-door preaching. The question arose in a request for a ruling made by Finland's Data Protection Supervisor.  The court also issued a press release summarizing the court's decision. Law & Religion UK blog reports on the decision.

Suit Over Charlottesville Neo-Nazi Rally May Proceed

In Sines v. Kessler, (WD VA, July 9, 2018), a Virginia federal district court, in a 62-page opinion, held that a group of Charlottesville residents can move ahead with most of their claims for injuries growing out of the racist and anti-Semitic August 2017 "Unite the Right" rally in Charlottesville. The court summarized its opinion:

In 1871, Congress passed a law “directed at the organized terrorism in the Reconstruction South[.]” ... 42 U.S.C. § 1985. Over a hundred and forty years later ... the Defendants ..., including the Ku Klux Klan, various neo-Nazi organizations, and associated white supremacists, held rallies in Charlottesville, Virginia. Violence erupted.... Plaintiffs, allege that this violence was no accident. Instead, they allege the Defendants violated the 1871 Act and related state laws by conspiring to engage in violence against racial minorities and their supporters. The Defendants retort that they were simply engaged in lawful, if unpopular, political protest and so their conduct is protected by the First Amendment. While ultimate resolution of what happened at the rallies awaits another day, the Court holds the Plaintiffs have plausibly alleged the Defendants formed a conspiracy to commit the racial violence that led to the Plaintiffs’ varied injuries. Accordingly, the Plaintiffs’ claims largely survive, although one Defendant is dismissed and other claims are pared down.

WTVR reports on the decision.

Kavanaugh's Judicial Record On Religion Issues

To assist in evaluation of Supreme Court nominee Brett Kavanaugh's church-state and religious liberty views, here are all the D.C. Circuit cases involving these issues in which Kavanaugh was one of the judges deciding the case. Cases designated by an asterisk are ones in which Kavanaugh authored an opinion:

Estate of Coll-Monge v. Inner Peace Movement, 524 F.3d 1341 (2008)

* Chaplaincy of Full Gospel Churches v. United States Navy (In re Navy Chaplaincy), 534 F.3d 756 (2008) [majority opinion]

St. John's United Church of Christ v. FAA, 550 F.3d 1168 (2008)

Kaemmerling v. Lappin, 553 F.3d 669 (2008)

* Newdow v. Roberts, 603 F.3d 1002 (2010)[concurring opinion]

Daniel Chapter One v. FTC, 405 Fed. Appx. 505 (2010)

* Mahoney v. Doe, 642 F.3d 1112 (2011) [concurring opinion]

United States v. Moore, 651 F.3d 30 (2011)

Chaplaincy of Full Gospel Churches v. United States Navy (In re Navy Chaplaincy), 738 F.3d 425 (2013)

In re Charges of Judicial Misconduct, 769 F.3d 762 (2014)

* Priests for Life v. United States HHS, 808 F.3d 1 (2015) [dissenting opinion]

Preliminary Analyses of SCOTUS Nominee Brett Kavanaugh's Religious Liberty Positions

President Trump last night announced that he will nominate D.C. Circuit Judge Brett M. Kavanaugh to Justice Anthony Kennedy's seat on the U.S. Supreme Court.  Last week, National Review ran this analysis of Judge Kavanaugh's record on religious liberty and church-state issues. The Federalist also ran an analysis, more critical of Kavanaugh's record in this regard.

The Washington Post last night ran an article titled: Judge Brett Kavanaugh — a Catholic — faces a historical struggle between canon and constitutional law

Also last week, Daniel Cardinal DiNardo, President of the United States Conference of Catholic Bishops sent a letter (full text) decrying attempts to generate opposition of any Supreme Court nominee based on his or her views on Roe v. Wade. The letter reads in part:

There is no doubt that the Catholic Church stands out for its commitment to the right to life from conception until natural death.  This ethic has profound consequences not only for abortion, but for many other areas of life, including the death penalty, the application of scientific research to human subjects, the right to adequate health care, and the role of the state in promoting the common good.  Our civil society will be all the poorer if Senators, as a matter of practice, reject well-qualified judicial nominees whose consciences have been formed in this ethic.

UPDATE: Americans United has also prepared a report (full text) on Kavanaugh's church-state and religious liberty record. In addition to opinions, the report identifies relevant briefs and a lecture.

Recent Articles of Interest

From SSRN:

• Teresa Stanton Collett, Against Ideological Colonization: The Teaching of Humanae Vitae and a Humanely Adequate Global Ethic, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 18-13 (2018)).
• Dagmar Schiek, On Uses, Mis-Uses and Non-Uses of Intersectionality Before the European Court of Justice (ECJ): The ECJ Rulings Parris (C-433/15), Achbita (C-157/15) and Bougnaoui (C-188/15) as a Bermuda Triangle?, (Journal of Discrimination and the Law, Forthcoming).
• Robin Fretwell Wilson & Shaakirrah Sanders, By Faith Alone: When Religious Beliefs and Child Welfare Collide, (Chapter from: The Contested Place of Religion in Family Law (Robin Fretwell Wilson, ed., Cambridge University Press, 2018)).
• Robin Fretwell Wilson, Divorcing Marriage and the State Post-Obergefell, (Chapter in: The Contested Place of Religion in Family Law (Robin Fretwell Wilson, ed., Cambridge University Press, 2018)).
• Joanna N. Erdman, Constitutionalizing Abortion Rights in Canada, (Ottawa Law Review, Vol. 49, No. 1, 2017).
• Steve Sanders, Making it Up: Lessons for Equal Protection Doctrine from the Use and Abuse of Hypothesized Purposes in the Marriage Equality Litigation, (Hastings Law Journal, Vol. 68, 2017).
• Sarah C. Haan, The Post-Truth First Amendment, (94 Indiana Law Journal, 2018, Forthcoming).
• Vincent J. Samar, Personhood Under the Fourteenth Amendment, (Marquette Law Review, Vol. 101, Issue 2, 2017).

Canadian Court Says Polyamorus Trio Can All Be Listed As Child's Parents

The Provincial Court of Newfoundland and Labrador, for the first time in Canadian history, has ruled that three adults living in a polyamorous relationship can all be listed as a child's parents on the child's birth certificate.  According to a July 6 report by the Log Cabin Democrat, Justice Robert Fowler wrote:

Society is continuously changing and family structures are changing along with it. This must be recognized as a reality and not as a detriment to the best interests of the child.

Indiana Court Rejects RFRA Exemption For Sacramental Marijuana Use

In First Church of Cannabis, Inc. v. State of Indiana, (IN Cir. Ct, July 6, 2018), an Indiana trial court judge rejected claims by the First Church of Cannabis that under the state's Religious Freedom Restoration Act it is entitled to an exemption from the state's law relating to the possession and use of marijuana when it is used for sacramental purposes. The court refused to enjoin state enforcement against the church, concluding that the state has a compelling interest in preventing marijuana use. The Hill reports on the decision.

Recent Prisoner Free Exercise Cases

In Williams v. Bedison, (5th Cir., July 3, 2018), the 5th Circuit affirmed a Texas federal district court's dismissal of a suit by an inmate who is a member of Moorish Science Temple of America who complained that he was not provided with primary services to practice his faith.

In Evans v. Brown, 2018 U.S. Dist. LEXIS 110441 (ND CA, July 2, 2018), a California federal district court held that a Muslim inmate's exclusion from the Ramadan meal program did not qualify for the "imminent danger" exception to the statutory "three strikes rule" that precludes inmates who have brought 3 or more frivolous actions from proceeding in forma pauperis.

In Gaston v. Marean, 2018 U.S. Dist. LEXIS 110448 (ED CA, June 29, 2018), a California federal magistrate judge, in a recommended finding, concluded that the cutting off of 4 dreadlocks of a Rastafarian inmate during his treatment for a head laceration did not amount to a substantial burden on his free exercise rights.

In Wade v. California Department of Corrections & Rehabilitation, 2018 U.S. Dist. LEXIS 111268 (ND CA, July 3, 2018), a California federal district court dismissed a Nation of Islam inmate's complaint that NOI videos were not shown to the entire prison and that no NOI chaplain was provided.

In Vidro v. Erfe, 2018 U.S. Dist. LEXIS 111750 (D CT, July 5, 2018), a Connecticut federal district court allowed a Native American inmate to move ahead with his 1st Amendment free exercise claim that he was denied adequate winter clothing to wear during his smudging rituals.

Boston Sued Over Refusal To Allow Christian Flag On Public Flag Pole

A suit was filed last week in Massachusetts federal district court against the city of Boston by Camp Constitution, a non-profit organization whose purposes include enhancing understanding of the United States' Judeo-Christian moral heritage.  The complaint (full text) in Shurtleff v. City of Boston, (D MA, filed 7/6/2018) alleges that it was refused use of a City Hall flagpole that is generally available to organizations to use in connection with cultural, historic or other events.  Camp Constitution sought to fly a Christian flag in connection with its planned event designed to recognize the contributions Boston’s Christian community to the city’s cultural diversity, intellectual capital and economic growth.  The city refused permission under an informal policy that allowed only "non-secular" flags to fly from the pole. The suit contends that this violate's plaintiffs' free speech and equal protection rights as well as the Establishment Clause under both the U.S. and Massachusetts constitutions. Liberty Counsel issued a press release announcing the filing of the lawsuit.

Muslim Group's Challenge To Landmark Designation Dismissed On Ripeness Grounds

In Islamic Community Center for Mid Westchester v. City of Yonkers Landmark Preservation Board, (2d Cir., July 6, 2018), the U.S. 2nd Circuit Court of Appeals affirmed the dismissal for lack of ripeness of a suit brought by a Muslim community center.  The city had designated as a landmark the property which the organization (ICCMW) had purchased for use as a mosque.  The court ruled that ICCMW had failed to apply for the “certificate of appropriateness” that would, if granted, enable them to move ahead with construction despite the landmark designation.

Short-Term Rental Ban Does Not Burden Rabbi's Religious Freedom

According to today's Savannah Morning News, a Savannah, Georgia state trial court judge has upheld against a religious freedom challenge Savannah's city ordinance prohibiting short-term vacation rentals in certain areas of the city.  Rabbi Arnold Belzer and his wife claim that they were acting in accordance with Jewish scripture and the tradition of hospitality in opening one bedroom in their home to guests from all over the world. The space was listed on Airbnb. The court, in ruling on a motion for a preliminary injunction, held that the zoning ordinance is not a substantial burden on the Belzers' religious freedom.

Another Religious College Gets Relief Against ACA Contraceptive Mandate Rules

Consistent with a number of other recent district court opinions, a Pennsylvania federal district court in Geneva College v. Azar, (WD PA, July 5, 2018), issued a permanent injunction against applying the Affordable Care Act contraceptive coverage mandate rules to Geneva College to the extent that the college has religious objections to compliance. The Trump Administration has conceded that applying the Obama Administration's accommodation rules to religious non-profits would violate the Religious Freedom Restoration Act.  ADF issued a press release announcing the decision.

Pruitt's Resignation Letter Says Trump Is President Because of God's Providence

As widely reported, yesterday Scott Pruitt resigned as head of the Environmental Protection Agency. His resignation letter to President Trump (full text) included the following paragraph:

My desire in service to you has always been to bless you as you make important decisions for the American people. I believe you are serving as President today because of God's providence. I believe that same providence brought me into your service. I pray as I have served you that I have blessed you and enabled you to effectively lead the American people. Thank you again Mr. President for the honor of serving you and I wish you Godspeed in all that you put your hand to.

Pakistan Court Orders Public Release of Report On Temporary Election Law Amendments That Favored Ahmadis

In Pakistan last year, a change in the election law that apparently would have permitted members of the Ahmadi sect to run for political office created major controversy until the legislature restored the oath that precludes anyone who does not believe in the absolute and unqualified finality of the Prophethood of Muhammad from being a candidate. (See prior posting.)  A 3-person committee headed by headed by Pakistan Muslim League-Nawaz chairman Raja Zafarul Haq was appointed to determine who was responsible for the pro-Ahmadi legislative change. The report was submitted by the government to the Islamabad High Court, but was not released publicly. As reported by Geo News, yesterday the Islamabad High Court, in a 172-page opinion, ordered the report made public. Pakistan Today reports more extensively on the High Court's opinion which concluded that every citizen has the right to know the religion of persons holding key governmental posts. The Court expressed concern that Ahmadis can disguise their beliefs to gain access to political posts reserved for Muslims.

Haliburton Sued By EEOC For Religious and National Origin Discrimination

The EEOC announced on Tuesday that it has filed suit against the large multinational Haliburton Energy Services, Inc., charging that the company subjected two of its employees to religious and national origin discrimination.  According to the EEOC:

Hassan Snoubar, of Syrian national origin, began working for Halliburton as an operator-assistant oil field worker.... During his employment, Snoubar, a U.S. citizen, was subjected to taunts and name calling regarding both his national origin and his Muslim religion. He was frequently called derogatory names ... and was accused of being associated with ISIS and terrorism by supervisors and co-workers. Mir Ali, a Muslim co-worker of Indian national origin, was similarly subjected to the hostile environment.

... After being continually criticized about their cultural attire, appearance and even claims that "their people" engaged in bestiality, Snoubar expressed his concerns to management and human resources, but was then fired.

City Sues To Close Down Church Allegedly Operating As Marijuana Dispensary

Los Angeles Times reported on Tuesday that Newport Beach, California officials have filed a civil suit in state court seeking an injunction to close down Church of the Holy Grail. The suit claims that the Church is operating as an illegal marijuana dispensary. The suit also seeks a $25,000 civil penalty. Holy Grail's attorney says that use of marijuana at the site is a lawful exercise of religion.

Iowa Churches Diverge On Immigration Issues

The New York Times yesterday posted an article titled An ICE Raid Leaves an Iowa Town Divided Along Faith Lines. The investigative piece explores how an ICE raid at an Iowa concrete plant has generated different responses locally from members of different Christian denominations:

President Trump’s immigration crackdown has been promoted with biblical righteousness by senior members of his administration, including Attorney General Jeff Sessions. And in heartland communities where the president is popular, the crackdown is often debated — by supporters and critics alike — through the lens of Christian morality.

Conditions Imposed On Church's Homeless Shelter Violate RUIPA

In First Lutheran Church v. City of St. Paul, (D MN, July 2, 2018), a Minnesota federal district court granted a preliminary injunction against two conditions the city imposed on the church's partnering with Listening House in the use of the church's basement as a day shelter for the homeless. One condition was a requirement that a sign be posted restricting after hours use of church grounds. The church objected saying that visitors are welcome to enjoy its property at any time. The second condition limited the number of guests to 20 per day, even though 50 to 60 are typically served and the fire code capacity for the basement is 122. The court, finding a violation of RLUIPA, said in part:

With respect to the sign-posting requirement, the governmental interest furthered is the help the City needs to enforce trespassing.... Even assuming that aiding the enforcement of trespassing is a compelling governmental interest, entry onto First Lutheran’s property after hours is not trespassing because First Lutheran consents to people being on church property after hours.... 

With respect to the twenty-person limit, the City claims that the condition furthers the governmental interest in maintaining the residential character of the neighborhood.... The limit purportedly furthers this interest in two ways: by reducing the number of guests and thereby preventing overcrowding of a residential neighborhood, and by reducing petty offenses allegedly committed by guests. But, in practice, the limit is unlikely to further the City’s interest in either way....

First, it is unclear whether or how the limit will reduce overcrowding. As noted, demand is high for First Lutheran’s and Listening House’s services. As news spreads about the twenty-person limit, it is likely that more prospective guests will line up early in hopes of being admitted, which would cause more overcrowding in the morning hours....

Second, the limit is unlikely to reduce petty offenses.... If Listening House closed its doors tomorrow, its guests who are homeless or poor would still be homeless or poor, and the City would continue to experience the effects of homelessness and poverty. 

The court also found that the sign posting requirement amounts to unconstitutional content-based compelled speech.

California Elimination of Personal Belief Exemption From Vaccination Requirements Upheld

In Brown v. Smith, (Cal. App., July 2, 2018), a California appellate court rejected a challenge to a 2015 California legislative change that eliminated the personal beliefs exemption from the requirement that children receive vaccines for certain infectious diseases before being admitted to any public or private school. The court rejected a challenge under the state constitution's free exercise clause, finding that the state has a compelling interest in preventing the spread of communicable diseases. The court also rejected other state constitutional and statutory challenges. (See prior related posting.)

Cert. Denied In Michigan Legislative Prayer Case

Last week the U.S. Supreme Court denied certiorari in Bormuth v. Jackson County, Michigan, (Docket No. 17-7220, cert. denied June 28, 2018). (Order List).  In the case, the 6th Circuit sitting en banc in a 9-6 decision upheld the invocation practices of the Jackson County Board of Commissioners.  At issue was whether the Establishment Clause is violated when invocations-- virtually all of them Christian-- are offered by elected Commissioners themselves rather than by a chaplain or invited clergy. (See prior posting.)  The denial of review came on the same day that the Supreme Court (as previously reported) also denied certiorari in a 4th Circuit legislative prayer case-- Rowan County, North Carolina v. Lund which took a contrary view in a similar situation. In the Rowan County case, Justice Thomas, joined by Justice Gorsuch, filed an opinion dissenting from the denial of certiorari, saying in part::

[T]he Sixth and Fourth Circuits are now split on the legality of legislator-led prayer. State and local lawmakers can lead prayers in Tennessee, Kentucky, Ohio, and Michigan, but not in South Carolina, North Carolina, Virginia, Maryland, or West Virginia. This Court should have stepped in to resolve this conflict.

[Thanks to Blog From the Capital for the lead on Bormuth.]

Australian Archbishop Sentenced To 12 Months Home Confinement For Concealing Priest Abuse

In Australia, Archbishop Philip Wilson, one of the country's most senior Catholic leaders, has been sentenced to 12 months home detention after being found guilty of concealing decades of abuse by a pedophile priest. The Australian reports that the sentence was imposed after a two-week trial on one count of concealing a serious indictable offense.

Suit Challenges Non-Disclosure Agreements In Priest Abuse Settlements

AP reported yesterday on a lawsuit filed in a Pennsylvania state trial court by four women (related as sisters) against the Catholic Diocese of Harrisburg.  The suit seeks to invalidate two confidentiality agreements entered in 1994 and 1995 in settling suits alleging that a parish priest, Rev. Augustine Michael Giella, abused two of the women when they were young girls.  The agreements apply to all family members. The Diocese says it no longer enforces confidentiality agreements stemming from pries abuse settlements, but plaintiffs' lawyer says they want this in writing before the women speak out.

8th Circuit Orders Dismissal of Trial Judge's Suit Over His Sitting On Death Penalty Cases

In In re Kemp, (8th Cir., July 2, 2018), the U.S. 8th Circuit Court of Appeals by a 2-1 vote issued a writ of mandamus essentially ordering an Arkansas federal district court to dismiss a suit against seven justices of the Arkansas Supreme Court brought by Wendell Griffen, a state trial court judge. The Arkansas Supreme Court had ordered Griffen, who is also a Baptist minister, taken off of all cases involving the death penalty or the state's execution protocol, citing an apparent lack of impartiality. Griffen had issued a temporary restraining order against the state's method of execution after he wrote a blog post criticizing the death penalty as immoral and took part in an anti-death penalty rally on Good Friday.  Griffen then sued in federal district court claiming infringement of his religious freedom as well as retaliation for exercising his free speech rights, and violation of his due process and equal protection rights. The district court refused to completely dismiss Griffen's lawsuit. (See prior posting.) The 8th Circuit held, however, that Griffen had not stated a plausible claim for relief under any of his theories.  Judge Kelly dissented, arguing that this is an improper use of mandamus.  Arkansas Democrat-Gazette reports on the decision.

Recent Articles of Interest

From SSRN:

• Iain T. Benson, Can Law Avoid Creating Culture and Religion in Its Own Image? The Context for Diversity, Religion and Culture in MEC for Education: Kwazulu-Natal and Others v Navaneethum Pillay: Reflections a Decade Later, (Journal for Juridical Science, 2017).
• Chan Tov McNamarah, On the Basis of Sex (UAL Orientation or Gender Identity): Bringing Queer Equity to School with Title IX, (Cornell Law Review, Vol. 104, (Forthcoming 2019)).
• Paul Benjamin Linton, Overruling Roe v. Wade: The Implications for Women and the Law, (Life an Learning XVII: Proceedings of the Twenty-Seventh University Faculty for Life Conference (2017)).
• Holning Lau, From Loving to Obergefell: Elevating the Significance of Discriminatory Effects, (Virginia Journal of Social Policy and the Law (2018 Forthcoming)).
• Holning Lau, Comparative Discrimination Law: Sexual Orientation and Gender Identity, (Brill Research Perspectives in Comparative Discrimination Law (2018 Forthcoming)).
• Mohamed A. Arafa, Islamic Criminal Law: The Divine Criminal Justice System between Lacuna and Possible Routes, (2 Journal of Forensic and Crime Studies 102 (Spring 2018)).
• Nicolas J. Duquette, Spend or Save? Nonprofits’ Use of Donations and Other Revenues, (Nonprofit and Voluntary Sector Quarterly, 46(6): 1142-1165 (2017)).

Recent Prisoner Free Exercise Cases

In Branco v. Milligan, 2018 U.S. App. LEXIS 17583 (6th Cir., June 26, 2018), the 6th Circuit affirmed the dismissal of a Muslim inmate's complaint that he was not called out for the nightly Ramadan feast on one occasion.

In Robertson v. McCullough, (10th Cir., June 28, 2018), the 10th Circuit affirmed the dismissal of a claim by a Christian inmate that his religious exercise was burdened when he was not permitted to donate a kidney to another inmate.

In Horacek v. Prisk, 2018 U.S. Dist. LEXIS 103824 (WD MI, June 21, 2018), a Michigan federal district court dismissed a Jewish inmate's complaint of delay in approving and instituting his participation in the kosher meal program.

In Carawan v. Mitchell, 2018 U.S. Dist. LEXIS 104149 (WD NC, June 20, 2018), a North Carolina federal district court dismissed a Muslim inmate's complaint that he was unable to both receive earned time for going to school and freely practice Islam because class attendance policies conflicted with religious services, and that he was not allowed to pray while seated at his desk in class.

In Buckley v. County of San Mateo, 2018 U.S. Dist. LEXIS 104370 (ND CA, June 21, 2018), a California federal district court allowed a Jewish inmate to move ahead with his complaint that he was denied the right to have Sabbath candles, a prayer book and Sabbath services, and to wear certain religious items outside his cell. His complaint regarding kosher food was dismissed.

In Shabazz v. Johnson City Police Department, 2018 U.S. Dist. LEXIS 104887 (ND NY, June 21,2018), a New York federal magistrate judge recommended dismissing, with a right to replead, a Muslim inmate's complaint that a search of him violated his free exercise rights. UPDATE: The court adopted the magistrate's recommendations at 2018 U.S. Dist. LEXIS 155020, Sept. 10, 2018.

In Nadolny v. Stock, 2018 U.S. Dist. LEXIS 106653 (SD IL, June 26, 2018), an Illinois federal district court allowed an inmate to move ahead with his complaint that the assistant warden prevented him from changing his religion from Baptist to Muslim.

In Bell v. Young, 2018 U.S. Dist. LEXIS 107169 (D SD, June 27, 2018), a South Dakota federal magistrate judge allowed a Buddhist inmate to move ahead with his complaint that inmates were allowed to receive free books from Christian religious groups, but not from non-religious groups.

In Lowe v. Smith, 2018 Ind. App. Unpub. LEXIS 758 (IN App., June 29, 2018), an Indiana appellate court reversed the dismissal of an inmate's complaint that a new prison policy no longer allows Muslim congregational prayer in their accustomed room, and only allows Muslims to pray while seated at tables.

In Buford v. Bolton, 2018 U.S. Dist. LEXIS 109130 (WD KY, June 28, 2018), a Kentucky federal district court allowed a Jewish inmate to move ahead with a claim that he was denied kosher meals in violation of his free exercise rights.

Northern Ireland Appeals Court Says Humanist Wedding Officiants Are Permitted

In In re Laura Smyth, (NI Ct. App., June 28, 2018), the Northern Ireland Court of Appeal held that the General Register Office should have granted a license under the Marriage (Northern Ireland) Order 2003 to a marriage celebrant to perform a Humanist marriage ceremony for a couple seeking it. Northern Ireland's marriage law has separate provisions for civil marriages and religious marriages. The appeals court held that it would violate the European Convention on Human Rights' conscience protections (Art. 9) and its anti-discrimination provisions (Art. 14) to deny the license.  The Humanist officiant should be licensed under the Section 31 of the Marriage Order. While that provision is usually the basis for appointing a person to solemnize a civil marriage, the Marriage Order should be read to allow the Humanist officiant to conduct a ceremony that includes readings supporting or promoting humanist beliefs. The full text of the decision is not yet available online, but a lengthy court-authorized Summary of Judgment is available. Irish Legal News reports on the decision.

Temporary Injunction Issued Against Quebec's Anti-Niqab Law

In the Canadian province of Quebec yesterday, a trial court again blocked the province's anti-niqab law from taking effect.  The law bans the both those furnishing government services, and those receiving them, from doing so with their face covered. (See prior posting.) According to Reuters:

A judge in December suspended the ban until the provincial government crafted regulations. The completed regulations, which included arrangements for individuals to obtain religious exemptions, were poised to take effect on Sunday.

But another judge on Thursday deemed the new rules confusing and ambiguous and suspended implementation again while the court challenge goes ahead.

Quebec Superior Court Judge Marc-Andre Blanchard wrote in his ruling that the law appeared on its face to violate the Canadian Charter of Rights and Freedoms, adding it could cause Muslim women “irreparable harm.”

Cert. Denied, Over 2 Dissents, In Legislative Prayer Case

The U.S. Supreme Court yesterday denied review in Rowan County, North Carolina v. Lund, (cert. denied 6/28/2018), but with Justice Thomas, joined by Justice Gorsuch, filing an opinion dissenting from the denial of certiorari. (Full text).  In the case,  the U.S. 4th Circuit Court of Appeals sitting en banc held by a 10-5 vote that the prayer practices of the Rowan County Board of Commissioners, in which commissioners themselves deliver invocations, violate the Establishment Clause. (See prior posting.) Charlotte Observer reports on the denial of certiorari and reactions to it.

Supreme Court Review Sought In Case of Football Coach Prayer

A petition for certiorari (full text) was filed with the U.S. Supreme Court this week in Kennedy v. Bremerton School District, (cert. filed 6/25/2018).  In the case, the 9th Circuit affirmed the district court's denial of a preliminary injunction sought by a Washington-state high school football coach who in a challenge to his school district was suspended for kneeling and praying on the football field 50-yard line immediately after games. (See prior posting.)  Christian News reports on the petition for review.

Supreme Court Issued Clean-Up Orders In Other Pregnancy Clinic and Travel Ban Cases

In light of Tuesday's Supreme Court decisions in the travel ban and the pro-life pregnancy center cases, yesterday the Supreme Court issued clean-up orders, remanding for consideration in light of those decisions several similar cases in which petitions for review were pending. (Order List (June 28, 2018)):

In Woman's Friend Clinic v. Becerra (Docket No. 16-1146); Livingwell Medical Clinic v. Becerra (Docket No. 16-1153); Mountain Right to Life v. Beccera  (Docket No. 17-211); the court granted certiorari, vacated 9th Circuit judgments below, and remanded for further consideration in light of National Institute of Family and Life  Advocates v. Becerra.

In International Refugee Assistance v. Trump (Docket No. 17-1194) and Trump v. International Refugee Assistance (Docket No. 17-1270), the Court granted certiorari, vacated 4th Circuit judgments below, and remanded for further consideration in light of Trump v. Hawaii.

Supreme Court Remands Case Involving Officers Ordering Suspect To Cease Praying

In Sause v. Bauer, (US Sup. Ct., June 28, 2018), the U.S. Supreme Court in a 4 page per curiam opinion granted certiorari, reversed the 10th Circuit, and remanded for further proceedings a case in which petitioner claimed that her free exercise rights were infringed when police officers in her apartment in response to a noise complaint ordered her to stop praying. The Court said in part:

There can be no doubt that the First Amendment protects the right to pray. Prayer unquestionably constitutes the “exercise” of religion. At the same time, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place. For example, if an officer places a suspect under arrest and orders the suspect to enter a police vehicle for transportation to jail, the suspect does not have a right to delay that trip by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment. When an officer’s order to stop praying is alleged to have occurred during the course of investigative conduct that implicates Fourth Amendment rights, the First and Fourth Amendment issues may be inextricable.

That is the situation here. As the case comes before us, it is unclear whether the police officers were in petitioner’s apartment at the time in question based on her consent, whether they had some other ground consistent with the Fourth Amendment for entering and remaining there, or whether their entry or continued presence was unlawful.... Without knowing the answers to these questions, it is impossible to analyze petitioner’s free exercise claim.

(See prior related posting.)

Andy Khawaja Appointed As A USCIRF Commissioner

The U.S. Commission on International Religious Freedom has announced that last week Senate Democratic Leader Charles Schumer appointed Dr. Andy Khawaja to the Commission. Khawaja is founder and CEO of an online payment service, Allied Wallet. The President and party leaders in each house of Congress appoint Commissioners to the 9-member Commission.

Two FLDS Leaders Convicted of Polygamy In Canada

AP reports that in the Canadian province of British Columbia, two leaders of the FLDS sect living in the border town of Bountiful have been sentenced by a trial court judge to house arrest after being convicted of polygamy.  61-year old Winston Blackmore, found guilty of having 24 wives, was given 6 months house arrest followed by 12 months probation and 150 hours of community service.  James Oler, who was convicted of having 5 wives, received 3 months house arrest, 12 months probation and 75 hours community service work. There are only two other convictions for polygamy in Canadian history, one in 1899 and the other in 1906.

In Israel, New Legal Hurdles To Egalitarian Prayer Space At Western Wall

Haaretz reports that Prime Minister Benjamin Netanyahu's plans to expand the area at the Western Wall that is available for egalitarian prayer has run into new legal and political hurdles.  Culture Minister Miri Regev announced yesterday that she is resigning as head of the ministerial committee charged with approving this expansion in the Robinson's Arch area of the Wall. (See prior related posting.)  Israel's Antiquities Law requires approval of the committee for construction at any archeological site.  Regev says that her conscience does not permit her to convene a committee to approve mixed-gender prayer.

Meanwhile, in April the right wing organization B'Tzedek sued the Antiquities Authority in the High Court of Justice contending that the Robinson's Arch expansion is illegal. Netenyahu is concerned that if expansion does not begin soon, the High Court will side with B'Tzedek, and that this will lead to the Court ruling instead that there should be an egalitarian prayer area as part of the main plaza of the Western Wall.  That would likely lead to a political crisis in Netanyahu's coalition government.

UPDATE: On July 3, Jerusalem Post reported:

A major step toward renovating the egalitarian prayer section of the Western Wall was taken Monday night, with the Knesset approving the transfer of authority over infrastructure changes to holy sites to Prime Minister Benjamin Netanyahu from Culture and Sport Minister Miri Regev.

Challenge To Hearing Scheduled For Rosh Hashanah Is Rejected

In Tarbutton v. Tarbutton, (LA App., June 27, 2018), a Louisiana state appeals court rejected a claim by a litigant seeking spousal support that her religious freedom rights were infringed when the trial court refused to reschedule a hearing on the matter scheduled for Rosh Hashanah.  Having already received one continuance, Brenna Tarbutton filed another motion for a continuance one day before the hearing.  Since her ex-husband refused to consent to the continuance, the court held the hearing without Brenna present.  At the hearing, it refused to admit into evidence her affidavit of income and expenses. The court said in part:

Not all burdens on religion are unconstitutional and the court may consider important governmental interests in assessing a limitation of a party’s First Amendment rights....

It was Breanna’s delay in filing her motion that required the hearing on the continuance to be held on the asserted holy day. In addition, Breanna’s claim that she was unable to file her motion sooner because of “confusion” about the date of the holy day is not plausible, since she could have consulted a calendar or a religious official to determine the date well before the afternoon prior to the hearing which had been scheduled two months earlier.

Justice Kennedy To Retire

Justice Anthony Kennedy today submitted a letter (full text) to President Trump notifying the President that he plans to move from active status to senior status on the Court as of July 31. A press release from the Supreme Court confirmed Kennedy's intent to retire.

Israel Expands Rabbinical Court Divorce Jurisdiction To Cover Recalcitrant Non-Israeli Husbands

On Monday, Israel's Knesset passed a new law giving Israeli Rabbinical Courts jurisdiction over divorces outside of Israel between non-Israelis where a Jewish husband has refused to give his estranged wife a Jewish bill of divorce (a get). The court however can act only when the husband subsequently is physically present in Israel. Jerusalem Post reports:

The legislation, which is a temporary three-year law, allows the Rabbinical Courts to hear a case involving a couple in which neither spouse is Israeli, on one of three conditions: if there is no rabbinical court where the couple lives to deal which can hear the case; the couple has not been in front of a rabbinical court for four months; or if a husband refuses to give a divorce after a rabbinical court in the Diaspora ruled that he must do so and made “reasonable efforts” to enforce its decision....

The rabbinical courts in Israel can impose sanctions on recalcitrant spouses to persuade them to divorce, such as revoking driving licenses, revoking passports, placing restrictions on their bank accounts, and even imprisoning them for extended periods of time.

But such sanctions are not at the disposal of rabbinical courts in the Diaspora since they are not state institutions....

Cert. Filed In Bladensburg Cross Challenge

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in American Legion v. American Humanist Association. In the case, the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that a 40-foot tall Latin Cross on government property created as a World War I Veterans' Memorial (Bladensburg Cross) violates the Establishment Clause.  (See prior posting.) En banc review was denied by a vote of 8-6. (See prior posting).  First Liberty Institute issued a press release announcing the filing of the cert. petition.

Notre Dame and HHS Sued Over Settlement of Contraceptive Mandate Coverage

Yesterday a group of Notre Dame undergraduate and graduate students filed suit in an Indiana federal district court against the University and the Trump Administration challenging a settlement entered last year with the University in its lawsuit over the contraceptive coverage mandate under the Affordable Care Act.  The complaint (full text) in Irish 4 Reproductive Health v. U.S. Department of Health and Human Services. (ND IN, filed 6/26/2018), contends that the settlement which exempts Notre Dame from furnishing contraceptive coverage to its students and employees where doing so would violate the University's religious tenets was entered in violations of the Administrative Procedure Act.  The settlement reflects the exemptions for religious non-profits which the Trump Administration adopted, but whose application has been enjoined nationwide by two other federal district courts.  The complaint also challenges the constitutionality of those now-enjoined rules.

According to the complaint, Notre Dame will provide some contraceptive coverage, but will require co-pays, and will refuse to cover certain IUDs and emergency contraceptives. Presumably this is an attempt to withdraw coverage of contraceptives that may prevent implantation of a fertilized egg.  Plaintiffs in the case are represented by Americans United for Separation of Church and State, the National Women’s Law Center (NWLC), the Center for Reproductive Rights and their co-counsel. NWLC issued a press release announcing the lawsuit.

Trump's Travel Ban Upheld By Supreme Court; Establishment Clause Challenge Rejected

This morning in Trump v. Hawaii, (US Sup. Ct., June 26, 2018), the U.S. Supreme Court upheld the latest version of President Trump's travel ban, rejecting Establishment Clause challenges to the ban. Chief Justice Roberts' majority opinion, joined by Justices Kennedy, Thomas, Alito and Gorsuch, said in part:

The case before us differs in numerous respects from the conventional Establishment Clause claim. Unlike the typical suit involving religious displays or school prayer, plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad. Their claim accordingly raises a number of delicate issues regarding the scope of the constitutional right and the manner of proof. The Proclamation, moreover, is facially neutral toward religion. Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements—many of which were made before the President took the oath of office. These various aspects of plaintiffs’ challenge inform our standard of review....

Nonetheless, although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen....

For our purposes today we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review.... As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds....

The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion. Plaintiffs and the dissent nonetheless emphasize that five of the seven nations currently included in the Proclamation have Muslim-majority populations. Yet that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.

The majority also used its opinion to formally reject the long-discredited Korematsu case that in 1944 upheld the internment of Japanese Americans.

Justices Kennedy and Thomas each filed a separate concurring opinion. Justice Breyer filed a dissenting opinion joined by Justice Kagan. Justice Sotomayor filed a dissenting opinion, joined by Justice Ginsburg, saying in part:

The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent. 

Supreme Court Holds California's FACT Act Violates Speech Rights of Pro-Life Clinics

The U.S. Supreme Court this morning, in a victory for pro-life pregnancy centers, decided National Institute of Family and Life Advocates v. Becerra, (US Sup. Ct., June 26, 2018).  At issue was California's FACT Act which requires licensed pregnancy counseling clinics to post and distribute a notice on the existence of publicly-funded family planning services, including contraception and abortion.  Unlicensed clinics must disseminate a notice that they and their personnel are unlicensed.  Justice Thomas, writing for the majority (Thomas, Roberts, Kennedy, Alito, Gorsuch) held that these disclosure requirements likely violate 1st Amendment free speech rights of the clinics. The Court concluded that the disclosures required of licensed clinics are content-based regulations:

... licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion—the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions—at the same time petitioners try to dissuade women from choosing that option— the licensed notice plainly “alters the content” of petitioners’ speech.

The majority then went on to largely reject the 9th Circuit's conclusion that  strict scrutiny does not apply because the regulation deals with "professional speech," saying in part:

... this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.”...

This Court has afforded less protection for professional speech in two circumstances—neither of which turned on the fact that professionals were speaking. First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their “commercial speech.” ... Second, under our precedents, States may regulate professional conduct, even though that conduct incidentally involves speech.... But neither line of precedents is implicated here....

As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.”

Turning to the required disclosures for unlicensed centers, the Court said in part:

California has not demonstrated any justification for the unlicensed notice that is more than “purely hypothetical.”

A concurring opinion by Justice Kennedy, joined by Chief Justice Roberts and Justices Alito and Gorsuch emphasizes a viewpoint discrimination argument, saying in part:

... here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.

Justice Breyer filed a dissenting opinion, joined by Justices Ginsburg, Sotomayor and Kagan, saying in part:

Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation....

If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?

2nd Circuit: Muslim Plaintiffs Can Seek Money Damages Under RFRA For No-Fly List Abuse

In Tanvir v. Tanzin, (2d Cir., June 25, 2018), the U.S. 2nd Circuit Court of Appeals held that plaintiffs asserting a claim under the Religious Freedom Restoration Act may recover money damages against federal officials sued in their individual capacities.  At issue in the case were assertions by three Muslim men who are residents of New York or Connecticut that federal law enforcement officials placed or retained them on the No Fly List because they refused, in part for religious reasons, to act as FBI informants. Courthouse News Service reports on the decision.

Supreme Court Vacates and Remands Arlene's Flowers Case

The U.S. Supreme Court today in Arlene's Flowers, Inc. v. Washington, (Docket No. 17-108, vacated 6/25/2018), (Order List), granted certiorari, vacated the judgment below and remanded the case to the Washington Supreme Court in light of  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n.  In the Arlene's Flowers case, the state of Washington's Supreme Court had upheld a trial court's decision that a florist's religiously-motivated refusal to sell arranged flowers for a same-sex wedding violates the Washington Law Against Discrimination. (See prior posting).

Report On This Year's State Religious Freedom Legislative Activity

In a June 12 report titled How 139 bills across the country are redefining religious freedom, the Deseret News has tracked all legislation affecting religious freedom passed, defeated or pending this year in state legislatures. The paper says in part:

In all, the Deseret News found 139 bills regarding religious freedom that were debated so far this year. These bills cover everything from religious clubs in elementary schools to state officials authorized to solemnize weddings, but most deal with LGBT rights, free speech, health care and adoption....

This analysis sets the stage for a six-month investigation into the state of religious freedom in America. The Deseret News will explore key conflicts affecting people of faith, sharing the stories of religious college students who feel silenced by school leaders and families caught in the middle of fights over faith-based adoption agencies.

Democrats and Republicans, young and old, once rallied around religious freedom. This project will explore why that's no longer the case.

[Thanks to Blog from the Capital for the lead.]

Recent Articles of Interest

From SSRN:

• Kaiponanea T. Matsumura, Consent to Intimate Regulation, (North Carolina Law Review, Vol. 96, No. 4, 2018).
• Margo A. Bagley, The Morality of Compulsory Licensing as an Access to Medicines Tool, (Minnesota Law Review, Forthcoming).
• Paul T. Babie, Parliamentary Prayer and the Establishment of Religion, (February 2018) 40(1) the Bulletin of the Law Society of South Australia 12-15).
• Noel D. Johnson & Mark Koyama, The State, Toleration, and Religious Freedom, (Advances in the Economics of Religion, Edited by Iyer, Rubin and Carvalho. Palgrave, 2018).
• Robert G. Natelson, Why Nineteenth Century Bans on 'Sectarian' Aid are Facially Unconstitutional: New Evidence on Plain Meaning, (19 Federalist Soc. Rev. 98 (2018)).
• Thaddeus Mason Pope, How to Respond to a Patient's Discriminatory Request for a Different Clinician, (ASCO Post (April 10, 2018)).
• Raphael Cohen-Almagor, Taking North American White Supremacist Groups Seriously: The Scope and the Challenge of Hate Speech on the Internet, (International Journal of Crime, Justice, and Social Democracy, Vol. 7, No. 2 (2018): 38-57).

From SSRN (Religious Law):

• Ghassan Abdul-Jabbar, The Major Themes of Hadith and Its Characteristics, (The Different Aspects of Islamic Culture, Vol. 1, Foundations of Islam (2016)).
• Mohammed A. Arafa, Transitional Justice, the Seeds of Change: Secular Law or Divine (Islamic) Law, Quo Vadis?, (Creighton Law Review, Vol. 9, No. 2, 2018).
• Christopher P. Guzelian, Silver: A Morally Good Money, (Procesos de Mercado, vol. 15 (2018).
• Doron M. Kalir, Rethinking Religious Objections (Old-Testament Based) to Same-Sex Marriage, (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 33, 2018, Forthcoming).
• Jonathan C. Augustine, The Fiery Furnace, Civil Disobedience and the Civil Rights Movement: A Biblical Exegesis on Daniel 3 and Letter from Birmingham Jail, (Richmond Public Interest Law Review, Vol. 21, No. 3, 2018).

From SmartCILP and elsewhere:

• Ran Hirschl, Ayelet Shachar, Competing Orders? The Challenge of Religion to Modern Constitutionalism, 85 University of Chicago Law Revies 425-455 (2018).
• J. William Callison, Dangling Threads: Hobby Lobby and Corporate Law Issues, 48 University of Memphis Law Review 447-461 (2017).
• Andrew L. Seidel, Dating God: What Is “Year of Our Lord” Doing in the U.S. Constitution?, [Abstract], 3 Constitutional Studies 129-151 (2018).

Israeli Trial Court Permits Sex-Segregated Event In City Square

In Israel today, a Tel Aviv trial court overruled the city's ban on a sex-segregated event scheduled for tomorrow in Tel Aviv's Rabin Square. The city had prohibited the event on the ground that sex segregation in the public sphere violates anti-discrimination requirements. Apparently the substantive legal issue turns on whether the event is religious (and thus has an exemption from anti-discrimination requirements) or is cultural. The court criticized the city for waiting too long to cancel the event.  Sponsored by the Messianist branch of the Chabad movement, the rally called "Messiah in the Square" is to "greet the Lubavitcher Rebbe, King Messiah." (Background.)  According to Haaretz:

The Chabad representative who presented the petition told the court that the planned barrier between men and women in the square would be 50 meters long, but separation would be voluntary and men had the option of sitting with women, as well. The judge said the barrier was for people who identified with the association and that passersby could move freely through the square.

“I don’t understand why the event should not be held the way they [Chabad] want,” [Judge] Vardi said.

Tel Aviv Mayor Ron Huldai responded Sunday to the decision by saying, “We will make sure that in the future there will be no [gender-] separated events in the city.”

Recent Prisoner Free Exercise Cases

In Solton v. Anderson, 2018 U.S. Dist. LEXIS 98239 (D KA, June 12, 2018), a Kansas federal district court concluded that defendants had not improperly denied a Muslim inmate's requests for religious materials and a religious diet.

In Degale v. McDonough, 2018 U.S. Dist. LEXIS 98549 (SD NY, June 12, 2018), a New York federal district court dismissed a Rastafarian inmate's challenge to the requirement for an initial shave of inmates to maintain a record of appearance in case of escape.

In Young v. Chuvalas, 2018 U.S. Dist. LEXIS 99618 (SD OH, June 14, 2018), an Ohio federal district court denied summary judgment to defendants in a suit by a Muslim inmate who claims he was forced to attend a Christian prison ministry event.

In Shepherd v. Smith, 2018 U.S. Dist. LEXIS 100012 (ND NY, June 13, 2018), a New York federal magistrate judge recommended that a Rastafarian inmate be allowed to move ahead with his claims against certain defendants that he did not receive a requested cold alternative diet and that there were no Rastafarian religious services available.

In Kearey v. Collier, 2018 U.S. Dist. LEXIS 99513 (SD TX, June 13, 2018), a Texas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 100014, May 8, 2018) and allowed a Taoist inmate to move ahead against two of the defendants on claims that they were denied access to a package containing eastern religious texts and videotapes; they were not permitted to practice moving meditations and yoga in a group setting; and an outside volunteer was required to supervise moving meditations.

In Greene v. Cabral, 2018 U.S. Dist. LEXIS 100408 (D MA, June 15, 2018), a Massachusetts federal district court dismissed a Jewish inmate's claim that he was not properly served sufficient kosher food and that he was denied the ability to participate in religious services led by a rabbi.

In Smith v. Drawbridge, 2018 U.S. Dist. LEXIS 100044 (WD OK, June 13, 2018), an Oklahoma federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 100732, May 22, 2018) and dismissed a Jewish inmate's complaint that numerous of his religious practices were not accommodated, including diet, religious services, religious events and apparel.  Most of his claims were dismissed for failure to exhaust administrative remedies, while his complaint regarding observance of a fast day was found not to have amounted to a substantial burden on his free exercise.

In Parker v. Baldwin, 2018 U.S. Dist. LEXIS 100749 (SD I, June 15, 2018), an Illinois federal district court allowed an inmate to move ahead with his complaint that he was wrongly disciplined for teaching the Asatru faith, holding Asatru services and teaching the runes.

In Rhoden v. Department of State Hospitals, 2018 U.S. Dist. LEXIS 100868 (ED CA, June 15, 2018), a California federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 90260, May 30, 2018), and allowed a civil detainee to move ahead on his complaint that for several months he has not been allowed a Catholic Chaplain to conduct prayer services and attend mass.

In Gholston v. Powell, 2018 U.S. Dist. LEXIS 102915 (MD GA, June 20, 2018), a Georgia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 103201, May 25, 2018) and allowed a Muslim inmate to move ahead with his complaint that he was not permitted to grow long hair and a beard.

Restrictions On Religion Around The World Continue To Increase

The Pew Forum this week released its 9th annual study of restrictions on religion imposed by countries around the world.  The 124-page report (full text) says in part:

Restrictions on religion around the world continued to climb in 2016, according to Pew Research Center’s ninth annual study of global restrictions on religion. This marks the second year in a row of increases in the overall level of restrictions imposed either by governments or by private actors (groups and individuals) in the 198 countries examined in the study.

The share of countries with “high” or “very high” levels of government restrictions – that is, laws, policies and actions by officials that restrict religious beliefs and practices – rose from 25% in 2015 to 28% in 2016. This is the largest percentage of countries to have high or very high levels of government restrictions since 2013, and falls just below the 10-year peak of 29% in 2012. 

EEOC Wins Settlement On Behalf of Hebrew Pentecostal Employee

The EEOC announced on Wednesday that it has won a settlement in a religious discrimination lawsuit brought against J.C. Witherspoon, a South Carolina-based logging company. The company fired a Hebrew Pentecostal employee because he refused to work on Saturday, his Sabbath.  The company will pay $53,000 in damages and enter a 2-year consent decree under it will make policy changes and provide training to management employees.

Religious Liberty Expert Nominated To Be Assistant Secretary of State For Human Rights

On Wednesday, President Trump announced  his intent to nominate Robert A. Destro to be Assistant Secretary of State for Democracy, Human Rights, and Labor.  Destro is Professor of Law and founding Director of the Interdisciplinary Program in Law & Religion at Catholic University's Columbus School of Law in Washington, D.C. (Biography on University's website). His publications include the book, Religious Liberty in a Pluralistic Society (Carolina Academic Press, 1996, with Michael S. Ariens). From 1983 to 1989, he served as a Commissioner on the U.S. Commission on Civil Rights.

5th Circuit: Title VII Exhaustion Requirement Is Not Jurisdictional

In Davis v. Fort Bend County, (5th Cir., June 20, 2018), the U.S. 5th Circuit Court of Appeals held that the requirement that a person exhaust administrative remedies before bringing a Title VII action is not jurisdictional. It held that in this case, defendant "forfeited its opportunity to assert this claim" by waiting 5 years and an entire round of appeals all the way to the Supreme Court to raise the defense.  At issue is whether plaintiff exhausted her remedies on her religious discrimination claim, which she had added to her sex discrimination and harassment allegations.  Reuters reports on the decision.

Judge Orders ICE To Stop Pressuring Iraqi Religious Minorities To Agree To Deportation

Last year, in exchange for Iraq being removed from President Trump's travel ban Executive Order, Iraq agreed to take back its nationals who are subject to deportation orders in the U.S.  Many of these are Chaldean Christians and members of other minority religious groups in Iraq who say they fear persecution or torture if they are returned. (See prior related posting.)  As reported by Bloomberg, a Michigan federal district court yesterday issued an order preventing ICE agents from pressuring these Iraqis to agree that they wish to be returned.  Iraq will take them back only if they sign such an agreement. Yesterday's Order (full text) in Hamama v. Adducci, (ED MI, June 20, 2018), also requires posting of notices in detention facilities holding these Iraqis informing them that they will not be penalized if they refuse to state they wish to be removed from the U.S.

Pennsylvania Supreme Court Prevents Release of Grand Jury Report On Clergy Sex Abuse

Yesterday the Pennsylvania Supreme Court issued a brief 2-paragraph Order (full text) barring release of an extensive Grand Jury report detailing sexual abuse and misconduct by priests in six Pennsylvania Catholic dioceses. The report, stemming from two years of testimony before a Cambria County grand jury, was expected to be made public shortly. According to the Morning Call, the six dioceses involved have pledged not to file legal challenges to prevent release of the report.  It is unclear who filed objections with the Supreme Court. Its Order indicates that more than one application seeking to prevent release were filed.

Father Sues Over Daycare's Policy That Disallowed Religious Jewelry

The New York Daily News reports on a lawsuit filed this week in a New York state trial court against a day care center over its policy barring students, for safety reasons, from wearing jewelry.  The school refused to allow Dmitriy Goldin's then 4-year old son to wear his Star of David necklace. According to the paper, the boy's father, who immigrated to the U.S. from Russia in 1991 because of religious persecution, argues that the daycare was required to make an exception to it no-jewelry policy to accommodate his religious beliefs:

Goldin, whose grandfather died fighting Germany in World War II, and who lost about 40 family members in the Holocaust, said he is not strict about Judaism – but wearing the Jewish star is how he and his family express their faith.

“In Russia, if you wore a Star of David back in the day, you could maybe walk 10, 15 minutes with weird looks before they’d spit on us, or cursed us out, or whatever,” he said. “In America, being able to wear the Star of David – it’s freedom.”

City Violated Establishment Clause By Acquiring Cross Site As Park Land

In Lions Club of Albany, California v. City of Albany, (ND CA, June 15, 2018), a California federal district court held that a city violated the Establishment Clause by acquiring for a public park a 1.1 acre parcel of land that includes a large cross. Originally the cross was on private property, and the Lion's Club held an easement to maintain the 20-foot high cross and to illuminate it each Christmas and Easter.  The city acquired the 1.1 acres along with adjacent land in exchange for approving a high rise project nearby. The court said in part:

While the City portrays itself as a victim of the easement, the fact is that the City must bear responsibility. To repeat, the City could have rejected the deal, burdened as it was by the easement. The First Amendment ran against the City, not the private parties. Once the City accepted title and began converting the land into a public park, it then could have solved its Establishment Clause problem by condemning the easement (and paying its value) under its power of eminent domain, selling off, if feasible, a subdivided parcel containing the cross to a private party (and keeping the rest for a park), or by possibly imposing zoning restrictions against all religious displays on public land.

Fellow Church Members File Ecclesiastical Complaint Against Attorney General Sessions

CNN reports that on Monday, 640 members of the United Methodist Church filed a formal ecclesiastical complaint (full text) against fellow church member, Attorney General Jeff Sessions.  The complaint was addressed to pastors of the churches in Mobile, Alabama and Clarendon, Virginia that Sessions attends.  The complaint, brought pursuant to Paragraph 2702.3 of the United Methodist Book of Discipline, charges Sessions with child abuse, immorality, racial discrimination and dissemination of doctrines contrary to the standards of doctrine of the United Methodist Church.  Calling for entering into a "just resolution process" with Sessions, the complaint says:

Mr. Sessions-- as a long-term United Methodist in a tremendously powerful, public position-- is particularly accountable to us, his church.  He is ours, and we are his.  As his denomination, we have an ethical obligation to speak boldly when one of our members is engaged in causing significant harm in matter contrary to the Discipline on the global stage....  [W]e believethat the severity of his actions and the harm he is causing to immigrants, migrants, refugees, and asylees calls for his church to step into a process to directly engage with him as a part of our community.

U.S. Withdraws From U.N. Human Rights Council

Secretary of State Mike Pompeo and UN Ambassador Nikki Haley announced yesterday (video of statement) that the the United States has withdrawn from the United Nations Human Rights Council. Haley said that the Council has not implemented needed reforms that have been pressed by the United States.  As reported by Vox:

Nikki Haley ... announced the decision on Tuesday evening, saying that the US could no longer be part of a UN body that was a “protector of human rights abusers, and a cesspool of political bias.”

“Look at the council membership and you see an appalling disrespect for human rights,” she said, citing member countries China, Venezuela, Russia, Cuba, the Democratic Republic of Congo, and Egypt. She went on to speak at length about how the council displayed a “chronic anti-Israel bias” and was “not worthy of its name.”

5th Circuit: Bishops Win Temporary Stay of Subpoena For E-Mails

The U.S. 5th Circuit Court of Appeals in Whole Woman's Health v. Smith, (5th Cir., June 18, 2018), has granted an emergency stay of a district court's order (see prior posting) refusing to quash a subpoena issued to the Texas Catholic Conference of Bishops.  The subpoena, in a suit challenging the constitutionality of a Texas law that requires health providers to bury or cremate fetal remains after an abortion, sought e-mails relating to burial, cremation, or disposition of fetal or embryonic tissue.  The Catholic Bishops' emergency motion for a stay (full text) argued that enforcement of the subpoena would violate their 1st Amendment rights and RFRA. Becket issued a press release announcing the 5th Circuit's action.

EEOC Sues New Mexico Diner For Failing To Accommodate Muslim Employee

The EEOC announced yesterday that it has filed a Title VII religious discrimination lawsuit against a diner in Farmington, New Mexico. The lawsuit charges that the Blue Moon Diner refused to accommodate a female Muslim employee who requested to work wearing a hijab. The suit also claims that the diner constructively discharged the employee because of her religion.