Nevada Supreme Court Says Counsel Not Ineffective In Failing To Raise A Free Exercise Objection

In 2010, a Las Vegas, Nevada doctor, Harriston Lee Bass, was convicted of second degree murder for selling a controlled substance to a woman whose overdose led to her death. (Background).  Subsequently Bass filed a post-conviction petition for habeas corpus alleging ineffective assistance of counsel in his trial and appeal.  In Bass v. State of Nevada, (NV Sup. Ct., July 20, 2018), the Nevada Supreme Court found Bass' objections do not warrant granting of any relief.  The Court said in part:

Bass ... argues that trial and appellate counsel should have challenged evidence introduced in violation of his First Amendment right to the free exercise of religion. A State investigator testified about a closet in Bass's house set up like a shrine, with a photograph of Bass and a candle, that was searched when investigating the residence for evidence of Bass's mobile medical practice. Bass testified that the area was his wife's prayer room. Bass has failed to show that testimony implying that he and his wife had unspecified religious beliefs in any way infringed on his religious exercise, particularly where the record is silent as to the content of those beliefs.... Accordingly, Bass has failed to show that a First Amendment objection at trial or on appeal was not futile, and counsel were not ineffective in omitting them. The district court therefore did not err in denying this claim.

9th Circuit: School Board Invocations Violate Establishment Clause

In Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, (9th Cir., July 25, 2018), the U.S. 9th Circuit Court of Appeals agreed with the district court that a California school board's prayer policy at board meetings violates the Establishment Clause. The court said in part:

The invocations to start the open portions of Board meetings are not within the legislative prayer tradition that allows certain types of prayer to open legislative sessions. This is not the sort of solemnizing and unifying prayer, directed at lawmakers themselves and conducted before an audience of mature adults free from coercive pressures to participate, that the legislative-prayer tradition contemplates.... Instead, these prayers typically take place before groups of schoolchildren whose attendance is not truly voluntary and whose relationship to school district officials, including the Board, is not one of full parity.....

Instead of the legislative-prayer analysis, we apply the three-pronged Establishment Clause test articulated in Lemon v. Kurtzman.... The Chino Valley Board’s prayer policy and practice fails the Lemon test and is therefore unconstitutional.

Los Angeles Times reports on the decision.

New Organization: Humanist Legal Society

In a press release last week, the American Humanist Association announced the launching of a new organization: the Humanist Legal Society:

The Humanist Legal Society’s aim is to provide a way for like-minded legal professionals—whether identifying as humanist, secular, atheist, agnostic, or something similar—to unite in advocating for principles consistent with the organization’s mission statement: the protection of civil liberties, strict separation of religion and government, legislation and public policies informed by sound scientific evidence, ethics in government and law enforcement, and respect for the diversity of individuals.

Here is a video of the organization's inaugural event. A link to the new organization's website has been added to the Religion Clause sidebar under "Advocacy Organizations." [Thanks to Bob Ritter for the lead.]

Report Released On 2016 Global Restrictions On Religion

Last week, the Pew Research Center on Religion & Public Life released its ninth annual study of global restrictions on religion. The 125-page report (full text) is titled Global Uptick In Government Restrictions on Religion in 2016.  It highlights: "Nationalist parties and organizations played an increasing role in harassment of religious minorities, especially in Europe."  According to the report:

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.

Meanwhile, the share of countries with “high” or “very high” levels of social hostilities involving religion – that is, acts of religious hostility by private individuals, organizations or groups in society – remained stable in 2016 at 27%.

State Department Hosts First-Ever Ministerial To Advance Religious Freedom

Yesterday was the first day of the U.S. State Department's 3-day Ministerial to Advance Religious Freedom.  RNS reports that U.S. Ambassador-at-Large for International Religious Freedom Sam Brownback opened the Ministerial at the State Department, urging the 350 conference participants from 80 countries to work together to advance religious freedom. The faiths represented at the State Department conference include Muslims, Jews, Christians, Buddhists, Hindus, Sikhs, Baha’is, and Yazidis.  The State Department describes the agenda of this first-ever Ministerial:

On July 24, we will equip and empower civil society organizations, including organizations working on religious freedom, to understand better how to access U.S. financial support for their efforts...

On July 25, members of civil society groups, including religious leaders and survivors of religious persecution, will convene to tell their stories, share their expertise, and ultimately unite on a path to greater religious freedom in our societies....

On July 26, government and international organization representatives will participate in plenary sessions focused on: (1) identifying global challenges to religious freedom, (2) developing innovative responses to persecution on the basis of religion, and (3) sharing new commitments to protect religious freedom for all.....

Here is the full schedule of panels. Various side events are also scheduled.

UPDATE: As reported by Blog from the Capital, the Summit ended with the Potomac Declaration and a Plan of Action. Critics contend that the Summit accomplished little.

Challenge To School's Transgender Policy Is Rejected

In Parents for Privacy v. Dallas School District No. 2, (D OR, July 24, 2018), an Oregon federal district court in a 56-page opinion rejected an array of challenges to a school district's policy that allows transgender students to use restrooms, locker rooms, and showers that match their gender identity rather than
their biological sex assigned at birth.  Plaintiffs alleged that the policy violates the Administrative Procedure Act, the right to privacy, Title IX, Oregon state law, parents’ rights to direct the education and upbringing of their children, and the First Amendment and RFRA. Responding to these claims, the court said in part:

... [H]igh school students do not have a fundamental privacy right to not share school restrooms, lockers, and showers with transgender students whose biological sex is different than theirs. The potential threat that a high school student might see or be seen by someone of the opposite biological sex while either are undressing or performing bodily functions in a restroom, shower, or locker room does not give rise to a constitutional violation....

It is within Parent Plaintiffs’ right to remove their children from Dallas High School if they disapprove of transgender student access to facilities. Once the parents have chosen to send their children to school, however, their liberty interest in their children’s education is severely diminished....

In this case, the law is neutral and generally applicable with respect to religion. There are no allegations that District forced any Plaintiff to embrace a religious belief, nor does the Plan punish anyone for expressing their religious beliefs. In any event, Plaintiffs do not have standing to bring this claim.

Teacher May Sue Catholic School For Pregnancy Discrimination

In Crisitello v. St. Theresa School, (NJ App., July 24, 2018), a New Jersey state appellate court reversed a trial court's dismissal of a discrimination suit brought against a Catholic parochial school by a former preschool lay teacher who had been fired for engaging in premarital sex. The teacher was terminated for violating the Church's ethical standards when it was found that she was pregnant and unmarried. Plaintiff sued under New Jersey's Law Against Discrimination, claiming pregnancy discrimination. The court said in part:

To be clear, in this case, plaintiff does not raise any challenge to defendant's religious doctrines or its right to specify a code of conduct for its employees based on that doctrine. Rather, she seeks an adjudication of her claim that she has been singled out for application of that doctrine as a pretext for impermissible discriminatory reasons. If proven, such conduct by defendant would be a violation of secular law protecting against discrimination....

In a case involving the firing of a pregnant employee, evidence of how male employees were treated is particularly useful in determining whether unmarried pregnant women are treated differently. Absent evidence that men are treated the same way as women who are terminated for engaging in premarital sex, a religious institution violates LAD because if "'women can become pregnant [and] men cannot,' it punishes only women for sexual relations because those relations are revealed through pregnancy." 

Street Preacher Denied Preliminary Injunction Against Trespass Policy of Sports Arena

In Lacroix v. Lee County, Florida, (MD FL, July 23, 2018), a Florida federal district court denied a preliminary injunction sought by a street preacher who was not permitted to preach on the premises of a county-owned sports arena which was hosting a concert. Plaintiff claimed that the Lee County Special Events Permitting Ordinance, and the trespass policy enforced in connection with special events on county property, violate his free speech and free exercise rights. The court concluded that plaintiff's pleadings failed to show that he meets various prerequisites for standing, and that he does not face imminent irreparable harm.

Recent Prisoner Free Exercise Cases

In Rutledge v. Lassen County Jail, 2018 U.S. Dist. LEXIS 120152 (ED CA, July 17, 2018), a California federal magistrate judge dismissed with leave to amend an inmate's claim that he is a "follower of Lucifer" and that jail staff have urged him to "pray or change [his] religious beliefs".

In Cucchiara v. Auburn Correctional Facility, 2018 U.S. Dist. LEXIS 120612 (ND NY, July 19, 2018), a New York federal district court dismissed an inmate's complaint regarding "fraudulent ticketing" of religious practices, destruction and confiscation of religious property including voodoo dolls, and tampering with religious food, oils and balms.

In McLeod v. Smith, 2018 U.S. Dist. LEXIS 121134 (SD NY, July 18, 2018), a New York federal district court dismissed a Muslim inmate's complaint that he was prevented from attending Jumah services on one occasion.

In Jackmon v. New Jersey Department of Corrections, 2018 U.S. Dist. LEXIS 121262 (D NJ, July 20, 2018), a New Jersey federal district court allowed an inmate to move ahead with his complaint that designation of Nations of Gods and Earths as a security threat group has deprived him of any Nations religious observances, possession of Nations literature, and association with other Nations members.

In Kanatzar v. Cole, 2018 U.S. Dist. LEXIS 121488 (D KA, July 20, 2018), a Kansas federal district court dismissed an inmate's claim that his kosher meals were not prepared in accordance kosher requirements.

Cert. Filed In Funeral Home's Firing of Transgender Employee

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, (cert. filed 7/20/2018).  In the case, the U.S. 6th Circuit Court of Appeals held that a Michigan funeral home violated Title VII when it fired a transgender employee who was in the process of transitioning from male to female. The court, rejecting the employer's religious freedom defense, held that the employee was illegally fired because of her failure to conform to sex stereotypes. ADF issued a press release announcing the filing of the lawsuit.

Michigan AG and Civil Rights Commission At Odds Over Coverage of LGBTQ Discrimination

In May, the Michigan Civil Rights Commission issued an Interpretive Statement declaring that the protection against discrimination because of sex in the state's Elliott Larsen Civil Rights Act includes protection against discrimination on the basis of sexual orientation and gender identity.  On July 20, Michigan's Attorney General Bill Schuette issued Opinion No. 7305 concluding that the Civil Rights Commission's interpretation "is invalid because it conflicts with the original intent of the Legislature as expressed in the plain language of the Act, and as interpreted by Michigan’s courts." The Opinion elaborates:

The word “sex” was understood in 1976, when ELCRA was enacted, to refer to the biological differences between males and females, not to refer to the concepts of sexual orientation or gender identity.

Yesterday the Civil Rights Commission issued a press release taking issue with the Attorney General and reaffirming its earlier Interpretive Statement, saying in part:

The Michigan Civil Rights Commission is an independent, constitutionally created and established body.... The Commission is not bound by the opinion of the Attorney General.

Establishment Clause Challenge To New York's Carve Out of Standards For Yeshivas

A lawsuit was filed in a New York federal district court yesterday challenging the so-called Felder Amendment to New York state's 2018 Budget Bill. The Amendment, tailored to apply only to Orthodox Jewish non-public schools, allows lower secular education standards in such schools.  The complaint (full text) in Young Advocates for Fair Education v. Cuomo, (ED NY, filed 7/23/2018), contends that the Felder Amendment violates the Establishment Clause by aiding ultra-Orthodox Jewish non-public schools and entangling the government with religion. Wall Street Journal reports on the lawsuit. [Thanks to Steven H. Sholk for the lead.]

Church of Scientology Settles Lawsuit

AP reports that the Church of Scientology yesterday settled a lawsuit that had been brought against it in California state court by former church member Laura Ann DeCrescenzo.  Plaintiff, who began to volunteer for the Church at age 6 or 7 and later became a member of its elite Sea Org, alleges that she was forced to work long hours before she was a teen and was forced to have an abortion at age 17.  (See prior posting.) The terms of the settlement are confidential.

New York AG Denied Injunction Against Anti-Abortion Protesters

In People of the State of New York v. Griepp, (ED NY, July 20, 2018), a New York federal district court, in a 103-page opinion, refused to grant the New York Attorney General a preliminary injunction against anti-abortion protesters who have been clashing with volunteer clinic escorts outside a Queens medical center.  The suit alleged that the protesters violated the federal Freedom of Access to Clinic Entrances Act (FACES), the New York Clinic Access Act (NYSCAA) and a similar New York City provision. The court describes the coverage of the statutes:

Using essentially identical language, both FACE and NYSCAA provide penalties for those who (1) by force, threat of force, or physical obstruction, (2) intentionally injure, intimidate, or interfere with a person, or attempt to do the same, (3) “because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.” 18 U.S.C. § 248(a)(1); see N.Y. Penal Law § 240.70(1)(a)–(b). NYCCAA prohibits a host of similar activities that prevent access to reproductive health care facilities. N.Y.C. Admin. Code § 8-803(a).

After a lengthy review of the evidence, the court concluded that protesters had not violated any of these provisions. For example, it said:

[T]he OAG has introduced evidence that the protestors sometimes continued attempting to engage with a person who asked to be left alone and that the protestors sometimes attempted to engage people who were not receptive to a different protestor’s overtures. Although such conduct can be circumstantial evidence of an intent to harass, annoy, or alarm, it does not establish that intent here. The interactions on the sidewalk outside Choices were generally quite short, and there is no credible evidence that any protestor disregarded repeated requests to be left alone over an extended period or changed his or her tone or message in response to requests to be left alone in a way that suggested an intent to harass, annoy, or alarm. The OAG has failed to show that any defendant had the intent to harass, annoy, or alarm a patient, companion, or escort; thus, it has failed to show that any defendant has violated NYCCAA, as interpreted by the OAG.

A word of caution—this decision should not embolden the defendants to engage in more aggressive conduct. In a few instances noted, several of the defendants’ actions came close to crossing the line from activity protected by the First Amendment to conduct prohibited by NYCCAA. Engaging in concerted activity that suggests an intent to annoy rather than to persuade not only violates the law, but also would seem to be contrary to defendants’ stated objectives. Voluntarily discontinuing the practice of speaking to patients who have affirmatively asked to be left alone not only would evidence the defendants’ good will, but also would lessen the likelihood of future litigation directed toward their protest activities.

Courthouse News Service reports on the decision.

Amish Get Remand For More Consideration of Religious Freedom Defenses In Permit Case

In Sugar Grove Township v. Byler, (PA Commnwlth. Ct., July 20, 2018), a 7-judge panel of the Pennsylvania Commonwealth Court remanded to the trial court a complaint against a member of the Old Order Amish who, it was contended, failed to obtain required permits under the Township's Privy Ordinance, and violated the Sewage Facilities Act and the Uniform Construction Code.  The trial court concluded that community safety concerns override religious objections. The appeals court said:

The trial court substantiates this conclusion by vaguely referencing testimony of an environmental hazard in the nature of high levels of E. coli bacteria being found in the area, without any explanation of how Appellant’s purported violations contributed to or exacerbated this hazard. Moreover, the trial court ignores additional protections provided by the Religious Freedom Protection Act....

The matter is remanded to the trial court to issue a new opinion considering the issue of the religious freedom protections of the First Amendment to the United States Constitution and Article I, section 3 of the Pennsylvania Constitution as well as the Religious Freedom Protection Act.

AP reports on the decision.

Canadian Court Invalidates Limits On Charities' Lobbying Expenditures

CBC reports on a July 16 decision by the Ontario Superior Court of Justice which invalidated provisions of Canada's Income Tax Act which limit expenditures for political lobbying activities by charities to 10% of its resources. (Background.)  According to CBC:

The decision by Justice Edward Morgan of the Ontario Superior Court of Justice is a reprieve for the tiny Ottawa group that launched the challenge — Canada Without Poverty — which has been under formal notice of losing its charitable status since 2016....

Morgan's decision does not alter the prohibition against charities engaging in partisan activities — that is, supporting particular candidates or political parties. Charities have not challenged that section of the Act....

But he did rule the 10 per cent rule was an arbitrary and unjustified infringement of freedom of expression as guaranteed in Section 2 of the Charter of Rights and Freedoms. And he said Canada Without Poverty needs to engage in political activity, such as buttonholing ministers and encouraging Canadians to contact their MPs, to carry out its charitable purpose.

Recent Articles of Interest

From SSRN:

• Adam Chodorow, Amicus Curiae Brief of Tax Law Professors in Support of Appellees, (June 22, 2018).
• Luke Beck, A Question of Characterisation: Can the Commonwealth Facilitate the Imposition of Religious Observances?, (Monash University Law Review, Vol 43, No 3, pp. 828-844, 2018).
• Ashwani Malhotra, Personal Laws and the Constitution: Revisiting Narasu Appa Mali, (June 22, 2018).
• Jessica A. Clarke, Explicit Bias, (Northwestern University Law Review, Vol. 113 (2018 Forthcoming)).
• Giri Taufik, Proportionality Test in the 1945 Constitution: Limiting Hizbut Tahrir Freedom of Assembly, (Constitutional Review Journal, Vol. 4, Number 1, May 2018).
• Nicolas Duquette, Top Donors and the Rising Concentration of Giving in the United States, 1960–2012, (June 19, 2018).
• Allison Anna Tait, Keeping Promises and Meeting Needs: Public Charities at a Crossroads, (Minnesota Law Review, Vol. 102, No. 5, 2018).

Neither Side Gets Summary Judgment In Hawaii Religious Zoning Dispute

In Spirit of Aloha Temple v. County of Maui, (D HI, July 20, 2018), a Hawaii federal district court denied summary judgment motions filed by both parties in a RLUIPA lawsuit challenging denial of a special use permit to build a church and hold religious events (particularly weddings) on land zoned for agricultural use. the court held that significant factual questions remain to be resolved as to the Temple's substantial burden claim, religious discrimination and equal terms claims, as well as its 1st and 14th Amendment assertions. The Temple promotes the practice of "Integral Yoga."

Recent Prisoner Free Exercise Cases

In Shepard v. Allison, 2018 U.S. Dist. LEXIS 117425 (ED CA, July 13, 2018), a California federal magistrate judge dismissed, with leave to file an amended complaint, an inmate's claim that his request to change his name for religious reasons was denied.

In Croghan v. Branion, 2018 U.S. Dist. LEXIS 117387 (ED CA, July 12, 2018), a California federal magistrate judge dismissed, with leave to file an amended complaint, an inmate's claim that he was not allowed to wear a religious artifact.

In Turner v. Schofield, 2018 U.S. Dist. LEXIS 117673 (WD TN, July 16, 2018), a Tennessee federal district court dismissed a Muslim inmate's complaint that he was not issued passes to attend religious services when he used his Muslim name rather than his committed name, as well as his complaint about halal meals.

In Dorman v. Aronofsky, 2018 U.S. Dist. LEXIS 118161 (SD FL, July 13, 2018), a Florida federal magistrate judge recommended that a Jewish inmate be permitted to move ahead with his complaint for an injunction growing out of his inability to sign up for and participate in Passover diet and services.

In Jones v. West, 2018 U.S. Dist. LEXIS 118633 (ED WI, July 17, 2018), a Wisconsin federal district court allowed a Muslim inmate to move ahead with his complaint about a policy change that limited dissemination of notice about multi-day religious meal accommodation and congregate meal dates, and his complaint about being denied inclusion on the Ramadan bagged meal program.

In Young v. Smith, 2018 U.S. Dist. LEXIS 119068 (SD GA, July 17, 2018), a Georgia federal magistrate judge held that a Native American inmate should be permitted to move ahead with his complaint that he was prohibited from smoking kinninnick in his weekly prayer ceremonies, that previously approved sacred items were confiscated, that his prayer practices were interfered with, that he was only allowed a Bible or Qur'an (not Native American sacred books) while in Tier II confinement, and his complaint of religious retaliation.

Israel's First Enforcement of Law Barring Jewish Weddings Outside Official Rabbinate

Haaretz reports that for the first time Israeli police have attempted to enforce a 2013 law that prohibits rabbis from performing Jewish weddings other than through the official Rabbinate.  Offenses carry a sentence of up to 6 months for conducting the ceremony and up to two years in prison for failing to register it.  Israeli police on Thursday booked Rabbi Dov Haiyun of Moriah Congregation in Haifa who was ordained by the Conservative movement, on charges of conducting a marriage ceremony of a person who is not eligible to be married under Jewish law. The complaint against him was filed by the Haifa Rabbinical Court.

UPDATE: Times of Israel (July 22) reports that the attorney general’s office, responding to widespread criticism of the detention, has now instructed police to cancel the summons against Rabbi Haiyun.

Suit Challenges Restriction On Farm's Use For Religious Activities

Yesterday's Sewickley Herald reports on a lawsuit filed in Pennsylvania federal district court on Wednesday by owners of an historic farm who are using their property to host Bible study, a worship night, religious retreats and fundraisers.  Last October, Sewickley Heights served a cease and desist order on the farm's owners, claiming that they need a zoning variance in order to host the religious activities.  The owners claim that the cease and desist order violates their rights under the First Amendment and RLUIPA.  Sewickley Heights is a small upscale residential community of estates built on rolling hills and meadows.

No Free Exercise Violation In Refusal To Adjourn Trial For Defendant's Holy Day

In an opinion which sets out few of the facts involved, a New York state appeals court held that the Free Exercise rights of a robbery defendant were not infringed when the trial court denied his request to adjourn court proceedings from Thursday until Monday to accommodate his religious beliefs and practices.  The unanimous decision or the Appellate Division is People v. Webb, (NY App., July 18, 2018).

Israel Passes Watered-Down Version of Controversial Jewish Nation-State Bill

As reported by Haaretz, Israel's Knesset yesterday passed a watered-down version of the controversial Jewish Nation-State Bill (full text).  The Bill, passed as a Basic Law, will have quasi-constitutional status. The new law defines Israel as "the national home of the Jewish people."  A provision that originally was aimed at allowing the creation of Jewish-only communities in Israel was modified to read:

The state views the development of Jewish settlement as a national value and will act to encourage and promote its establishment and consolidation.

In a provision which apparently attempts to prevent government encouragement of Reform and Conservative branches of Judaism within Israel, the law provides:

The state shall act within the Diaspora to strengthen the affinity between the state and members of the Jewish people.

Among various other provisions, the bill establishes the Sabbath and Jewish festivals as days of rest in the country.

Australian Court Bans Niqab In Spectator's Gallery

In Australia, a judge in the Victoria Supreme Court has refused to allow the wife of a terrorism defendant to wear a niqab (a full-face veil) in the court's public spectator gallery during her husband's trial.  In The Queen v. Chaarani, (VSC, July 18, 2018), the court said in part:

... Australia is obviously a multicultural society and I agree that religious dress should be accommodated as much as possible, but the right of religious freedom and the right to participate in public life are not absolutes....

Criminal proceedings in the trial division of the Supreme Court are often highly stressful experiences, not only for the accused but for those close to the accused. Likewise for those close to any victims. As a consequence of that stress, incidents happen from time to time in court.... Spectators whose faces are uncovered are likely to appreciate that, if they misbehave, it will not be too difficult to establish their identity, even if they manage to get away from the court....

A requirement that spectators have their faces uncovered is not to force anyone to act immodestly.  First, the exposure of one’s face in a court room cannot reasonably be viewed as an immodest act: subjective views to the contrary cannot rule the day, or the management of a court room. Second, if someone feels strongly that it would be improper for them to uncover their face in court, they can choose not to attend. If that is Ms Al Qattan’s choice, arrangements will be made for live streaming of the proceedings to a remote facility within the court building so that she can still view the trial.

The Guardian reports on the decision.

Christian After-School Program Is Exempt From Illinois Unemployment Taxes

In By the Hand Club for Kids, NFP, Inc. v. Illinois Department of Employment Security, (IL Cir. Ct., July 18, 2018), an Illinois state trial court held that an evangelical after-school program for impoverished Chicago school children is exempt from the requirement to pay unemployment taxes to cover its employees.  The  court held that the group falls under the exemption for organizations operated primarily for religious purposes. The state argued that the organization is merely an after-school program that primarily furnishes homework help, tutoring, hot meals and medical attention.  The court however emphasized that the group sees these charitable acts a a religious practice, and also that the organization proselytizes the children participating in their program.  ADF issued a press release announcing the decision.

School's Mission Trip Fundraising Violated Establishment Clause

In American Humanist Association, Inc. v. Douglas County School District RE-1, (D CO, July 17, 2018), a Colorado federal district court, in a case on remand from the 10th Circuit, held that a school district's promotion and fund raising for a Christian mission trip to assist orphans in Guatemala violated the Establishment Clause.  The court concluded that the school's activities violated both the effect and entanglement prongs of the Lemon test.  The court said in part:

The very concept of a mission trip has religious intimations. The Guatemala mission trip was overtly religious. It was organized by District students and teachers who are part of the Fellowship of Christian Athletes; it was planned through a Christian organization called Adventures in Missions: Christian Mission Trips; and the fundraising page for the trip noted “our group’s primary goal is to share the love and hope of Jesus.” ... In addition, the student organizer of the trip testified that “the plan was to . . . introduce [children] to the Bible” and to “promote Christianity.” ... It was no secret to the defendants that the supplies and money donated during the Cougar Run supply drive would be used to directly advance Christian goals.

The court granted summary judgment to the individual plaintiff, but dismissed the associational plaintiff in the case. Denver Post reports on the decision.

Challenge To HHS Family Planning Grant Criteria Fails

In Planned Parenthood of Wisconsin, Inc. v. Azar, (D DC, July 16, 2018), the D.C. federal district court dismissed a challenge to an Announcement by the Department of Health and Human Services brought by three Planned Parenthood affiliates and the National Family Planning and Reproductive Health Association.  Plaintiffs particularly object to new language in criteria for funding of voluntary family planning projects.  The new language includes "cooperation with faith based organizations" as one factor to be considered. The court first concluded that the Announcement is not yet subject to judicial review because it is not final agency action. The court went on to hold that even if it reached the merits of the challenge, the Announcement would be valid, saying in part:

such linkages [to faith-based groups] may benefit Title X providers by providing connections to communities in need of Title X services and strengthening enrollment and awareness programming, among other benefits.... The Announcement’s low-key encouragement to partner with community and faith-based organizations is not contrary to law, or arbitrary and capricious.

Courthouse News Service reports on the decision.

3rd Circuit Hears Oral Arguments In Minister's Breach of Contract Case

Last week, the U.S. 3rd Circuit Court of Appeals heard oral arguments in Lee v. Sixth Mount Zion Baptist Church of Pittsburgh. (Audio of full oral arguments).  In the case, a Pennsylvania federal district court dismissed on ministerial exception and excessive entanglement grounds a breach of contract suit by the church's pastor who was fired without being compensated under the contract clause relating to termination without cause.  (See prior posting.) Trib Total Media reports on the oral arguments.

Asylum Seeking Indian Sikhs Have Turbans Taken Away In Federal Custody

A report this week in the India Tribune alleges mistreatment of 52 illegal immigrants from India held at the federal prison in Sheridan, Oregon.  Most of these are Punjabi speaking Sikhs.  The immigrants are seeking asylum on the grounds of feared religious and political persecution in India.  In addition to the general problem of prison conditions, the Sikh inmates have had their turbans taken away. Some of the immigrants have now hired lawyers, so their conditions are improving. Community members have furnished beanies as head coverings to some Sikhs.

Church Tax Audit Limits Do Not Apply to Investigation of Pastors

In Rowe v. United States, (ED LA, May 16, 2018), a Louisiana federal district court held that the special protections of the Church Audit Procedure Act only applies to investigations into a church's tax liability. It does not apply to summonses to banks to supply church financial records in connection with an inquiry into the tax liability of the church's pastors. Nonprofit Law Prof Blog reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Title VII Race Provisions Cover Anti-Jewish Discrimination

In Bonadona v. Louisiana College, (WD LA, July 13, 2018), a Louisiana federal magistrate judge held that Title VII's ban on racial discrimination in employment is broad enough to cover discrimination based on a person's Jewish heritage. At issue is a Title VII suit by an applicant for a coaching position who was not hired because of his Jewish heritage.  Plaintiff was born to a Jewish mother but converted to Christianity in college.The court said in part:

America is no stranger to anti-Semitism, which is often rooted in prejudice against a person based on his heritage/ethnicity without regard to the person’s particular religious beliefs. Jewish citizens have been excluded from certain clubs or neighborhoods, and they have been denied jobs and other opportunities based on the fact that they were Jewish, with no particular concern as to a given individual’s religious leanings. Thus, they have been treated like a racial or ethnic group that Title VII was designed to protect from employment discrimination based on membership in that group.

AP reports on the decision.

5th Circuit: Subpoena To Catholic Bishops Should Have Been Quashed

In Whole Woman's Health v. Smith, (5th Cir., July 15, 2018), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, held that a Texas federal district court should have quashed a document discovery order directed at the Texas Conference of Catholic Bishops.  The discovery order came in a case in which several health care providers are challenging the state's fetal remains regulations which they contend burdens women's right to abortion. The majority opinion said in part:

The [district] court’s analysis of the free exercise and establishment clause claims begs the fundamental, novel issues presented under these circumstances. The court’s rejection of the free speech, association, and petition claims too narrowly construes the nature of chilling effects on those rights while overbroadly interpreting the importance to the plaintiffs of the discovery sought here....

[T]he claim of religious organizations to maintain their internal organizational autonomy intact from ordinary discovery should be at least as secure as the protection constitutionally afforded other associations. Supreme Court decisions have protected religious organizations’ internal deliberations and decision-making in numerous ways.... Although none have spoken directly to discovery orders in litigation, the importance of securing religious groups’ institutional autonomy, while allowing them to enter the public square, cannot be understated and reflects consistent prior case law.

The majority however, pointing to the rule of constitutional avoidance, decided the case on the basis of Federal Rules of Civil Procedure 45(d) which calls for quashing a subpoena when it imposes an undue burden.

Judge Ho also filed a brief concurring opinion.  Judge Costa filed a dissenting opinion.  Becket issued a press release announcing the court's decision.

Recent Articles of Interest

From SSRN:

• Sohail Wahedi, Female Circumcision as an African Problem: Double Standards or the Harsh Reality?, (M. Christian Green, T. Jeremy Gunn, & Mark Hill (Eds.), Religion, Law and Security, Stellenbosch: African Sun Media 2018, Conference Proceedings).
• Brian Soucek, The Case of the Religious Gay Blood Donor, (William & Mary Law Review, Forthcoming).
• John M. Armstrong, Review of Plato, 'The Laws', edited by Malcolm Schofield, translated by Tom Griffith, Cambridge University Press, 2016, (Ancient Philosophy (Forthcoming)).
• Russell K. Robinson & David M. Frost, 'Playing it Safe' with Empirical Evidence: Selective Use of Social Science in Supreme Court Cases About Racial Justice and Marriage Equality, (June 22, 2018).
• Raphael Cohen-Almagor, When a Ritual Murder Occurred at Purim. The Harm in Hate Speech, (El profesional de la información, Vol. 27, No. 3 (2018), pp. 671-681).
• Nicholas Duquette, Alexandra Graddy-Reed & Mark Phillips, The Extent and Efficacy of State Charitable Contribution Income Tax Credits, (April 23, 2018).

From SmartCILP:

• Ronald J. Colombo, The Religious Liberty Jurisprudence of Justice Antonin Scalia, 46 Hofstra Law Review 433-443 (2017).

Recent Prisoner Free Exercise Cases

In Williams v. Annucci, (2d Cir., July 10, 2018), the 2nd Circuit, vacating and remanding a district court decision, held that the state had not carried its burden under RLUIPA to justify not accommodating the dietary restrictions imposed by an inmate's Nazarite Jewish faith.

In Riley v. Governor of Florida, (11h Cir., July 12, 2018), the 11th Circuit vacated the district court'd decision and remanded to give plaintiff an opportunity to amend in a suit in which an inmate complained that his religion had been incorrectly listed as Jewish because his Ethiopian Zion Coptic religion was not included in the computerized list of faith choices.

In Beers v. Fouts, 2018 U.S. Dist. LEXIS 114202 (D NH, July 10, 2018), a New Hampshire federal district court rejected an inmate's complaint that a group strip search violated his religious beliefs because it exposed his body to individuals who lacked a proper reason to view it.

In Sears v. Thomas, 2018 U.S. Dist. LEXIS 114470 (SD FL, July 9, 2018), a Florida federal magistrate judge recommended dismissing a suit by an inmate alleging that a chain and crucifix were improperly kept from him on the grounds they were purchased from an unauthorized vendor.

In George v. County of Westchester, 2018 U.S. Dist. LEXIS 114520 (SD NY, July 10, 2018), a New York federal district court allowed an inmate to move ahead with his complaint regarding a lack of Jewish congregational worship services.

In Muhammad v. Barksdale, 2018 U.S. Dist. LEXIS 114773 (WD VA, July 10, 2018), a Virginia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 114324, March 14, 2018) and dismissed a Muslim inmate's complaint that he was served the Common Fare diet instead of "special" foods for Eid ul Fitr and Eid ul Adha.

In Maple v. Overmyer, 2018 U.S. Dist. LEXIS 114820 (WD PA, July 11, 2018), a Pennsylvania federal magistrate judge dismissed a Muslim inmate's complaint that he missed a Jummah prayer service and the feast of Eid Al-Fitr.

In Brennan v. Aston, 2018 U.S. Dist. LEXIS 116329 (WD WA, July 12, 2018), a Washington federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 116450, June 14, 2018) and allowed an inmate to move ahead with his complaint that his request to participate in Passover was denied.

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.