DC Circuit Upholds Bus Ad Restrictions On Religious Subject Matter

In Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, (DC Cir., July 31, 2018), the D.C. Circuit Court of Appeals, in 44-pages of opinions, rejected challenges to the WMATA's guidelines which preclude the sale of advertising space on public buses for issue-oriented advertising, including political, religious and advocacy ads.  The ban includes ads "that promote or oppose any religion, religious practice or belief."  The Catholic Archdiocese of Washington wished to purchase space on the exterior of buses for its Christmas season "Find the Perfect Gift" ad.  Finding that advertising space on buses is a non-public forum, the court said in part:

the government has wide latitude to restrict subject matters — including those of great First Amendment salience ... — in a nonpublic forum as long as it maintains viewpoint neutrality and acts reasonably....

The Archdiocese’s position would eliminate the government’s prerogative to exclude religion as a subject matter in any non-public forum. It contends Supreme Court precedent prohibits governments from banning religion as a subject matter.... Not only is this position contrary to the Supreme Court’s recognition that governments retain the prerogative to exclude religion as a subject matter, see Rosenberger, 515 U.S. at 831, it would also undermine the forum doctrine because the Archdiocese offers no principled reason for excepting religion from the general proposition that governments may exclude subjects in their non-public forums....

The Archdiocese contends also that ... Guideline 12 is unconstitutional because, like the restrictions challenged in Rosenberger, Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993), and Good News Club v. Milford Central School, 533 U.S. 98 (2001), it suppresses the Archdiocese’s religious viewpoint on subjects that are otherwise includable in the forum. But far from being an abrogation of the distinction between permissible subject matter rules and impermissible viewpoint discrimination, each of these cases represents an application of the Supreme Court’s viewpoint discrimination analysis, of which Guideline 12 does not run afoul. In each, the Court held that the government had engaged in unconstitutional viewpoint discrimination because the challenged regulation operated to exclude religious viewpoints on otherwise includable topics. An examination of each case demonstrates the contrast between the breadth of subjects encompassed by the forums at issue and WMATA’s in which, unlike the restrictions struck down by the Court, Guideline 12 does not function to exclude religious viewpoints but rather proscribes advertisements on the entire subject matter of religion.

Judge Wilkins, while joining the court's opinion, filed a concurring opinion as well.  Washington Times reports on the decision.

11th Circuit: Jehovah's Witness Truck Driver Was Offered Reasonable Accommodation

In Walker v. Indian River Transport Co., (11th Cir., July 27, 2018), the U.S. 11th Circuit Court of Appeals affirmed the dismissal of Title VII claims brought by a Jehovah's Witness truck driver who resigned his job alleging a failure to accommodate his need to regularly attend Sunday church services. The milk route to which Bobby Walker, Jr. was assigned required flexibility that included Sunday availability.  The court concluded that Walker's employer, Indian River Transport, offered Walker a reasonable accommodation by offering him other local routes, even though they paid less than the milk route.  The court also rejected Walker's retaliation claim.  Land Line reports on the decision.

AG Sessions Announces New Religious Liberty Task Force In Extensive Remarks on Topic

Attorney General Jeff Sessions delivered remarks (full text) at today's Department of Justice Religious Liberty Summit.  He said in part:

I want to thank all of you for your courage and insight to speak out for religious liberty.

Let us be frank.

A dangerous movement, undetected by many, is now challenging and eroding our great tradition of religious freedom. There can be no doubt. This is no little matter. It must be confronted and defeated.

This election, and much that has flowed from it, gives us a rare opportunity to arrest these trends.  Such a reversal will not just be done with electoral victories, but by intellectual victories. 

We have gotten to the point where courts have held that morality cannot be a basis for law; where ministers are fearful to affirm, as they understand it, holy writ from the pulpit; and where one group can actively target religious groups by labeling them a “hate group” on the basis of their sincerely held religious beliefs.

This President and this Department of Justice are determined to protect and even advance this magnificent heritage....

[I]n recent years, the cultural climate in this country—and in the West more generally—has become less hospitable to people of faith. Many Americans have felt that their freedom to practice their faith has been under attack.

And it’s easy to see why.  We’ve seen nuns ordered to buy contraceptives. 

We’ve seen U.S. Senators ask judicial and executive branch nominees about dogma—even though the Constitution explicitly forbids a religious test for public office.  We’ve all seen the ordeal faced so bravely by Jack Phillips.

Americans from a wide variety of backgrounds are concerned about what this changing cultural climate means for the future of religious liberty in this country.

President Trump heard this concern.

I believe this unease is one reason that he was elected.  In substance, he said he respected people of faith and he promised to protect them in the free exercise of their faith.  He declared we would say “Merry Christmas” again....

Today I am announcing our next step: the Religious Liberty Task Force, to be co-chaired by the Associate Attorney General and the Assistant Attorney General for the Office of Legal Policy—Jesse [Panuccio] and Beth [Williams].

The Task Force will help the Department fully implement our religious liberty guidance by ensuring that all Justice Department components are upholding that guidance in the cases they bring and defend, the arguments they make in court, the policies and regulations they adopt, and how we conduct our operations.  That includes making sure that our employees know their duties to accommodate people of faith.

As the people in this room know, you have to practice what you preach. We are also going to remain in contact with religious groups across America to ensure that their rights are being protected.  We have been holding listening sessions and we will continue to host them in the coming weeks.

This administration is animated by that same American view that has led us for 242 years: that every American has a right to believe, worship, and exercise their faith in the public square.

DOJ Religious Liberty Summit Today

According to an ADF press release, the U.S. Department of Justice will host a Religious Liberty Summit this morning. It will be live streamed at this link beginning at 9:30 AM.  The Summit "will present a number of perspectives on the centrality of religious liberty to a flourishing society and will examine legal and cultural challenges to it. Acting Associate Attorney General Jesse Panuccio will host the event, which will feature an announcement on protecting religious freedom by Attorney General Jeff Sessions...."

UPDATE: Here is a transcript of the proceedings at the Religious Liberty Summit. [Thanks to Blog from the Capital for the link.]

Pennsylvania Supreme Court Orders Release of Redacted Grand Jury Report On Clergy Sexual Abuse

In In re: Fortieth Statewide Investigating Grand Jury, (PA Sup. Ct., July 27, 2018), the Pennsylvania Supreme Court approved the public release (with certain redactions) of a 900-page grand jury report on allegations of child sexual abuse, failure to report abuse, and other acts endangering children by persons associated with 6 Pennsylvania Catholic dioceses.  The Grand Jury report, which lists over 300 clergy as predators, also covers possible obstruction of justice by Church officials, community leaders, and public officials.  However the court ordered that there be temporary redactions in the report as released to safeguard the reputations of individuals who have filed challenges to the report.  The court also called for oral argument on what due process mechanisms should be available to those individuals challenging the report's conclusions about them. According to the Philadelphia Inquirer:

The order by the seven-member high court provided a temporary victory for about two dozen current and former clergy members who have waged a furious legal fight to prevent their names from being publicly disclosed. The high court’s decision will allow them to remain unidentified for weeks, if not months, while the justices weigh their arguments.

New IRS Rules On Substantiation of Charitable Contributions

T.D. 9836, published in the July 30 Federal Register, sets out revised IRS rules for reporting and substantiation of cash and non-cash charitable contributions.  They implement provisions of the American Jobs Creation Act of 2004 and the Pension Protection Act of 2006. [Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Boyd v. Etchebehere, (9th Cir., July 25, 2018), the 9th Circuit affirmed the dismissal of a challenge to a California prison's Ramadan meal policy.

In McCracken v. Godert, 2018 U.S. Dist. LEXIS 121480 (ED MO, July 20, 2018), a Missouri federal magistrate judge dismissed, unless an appropriate amended complaint is filed, a Native American inmate's complaint that he is not being allowed to use ceremonial pipes, tobacco, and other ritual items.

In Thomas v. Delaney, 2018 U.S. Dist. LEXIS 122106 (ND NY, July 23, 2018), a New York federal district court dismissed some claims by a Rastafarian inmate of harassment and free exercise infringement, while allowing an amended complaint asserting 1st Amendment, harassment and RLUIPA claims to be filed.

In Allen v. Kunkel, 2018 U.S. Dist. LEXIS 122116 (D CT, July 22, 2018), a Connecticut federal district court dismissed for failure to exhaust administrative remedies a Moorish American inmate's complaints about barring his obtaining a particular book and refusing to approve his ability to purchase a fez.

In Miller v. Lucas, 2018 U.S. Dist. LEXIS 122640 (MD PA, July 20, 2018), a Pennsylvania federal magistrate judge recommended dismissing an inmate's complaint that on one occasion he was sent from the chapel back to his cell without being able to participate in religious services.

In Cejas v. Brown, 2018 U.S. Dist. LEXIS 122935 (SD CA, July 20, 2018), a California federal district court allowed a Buddhist inmate to move ahead with his claim that authorities denied weekly Buddhist services and the ability to practice meditation, chanting and prostration indoors. The court however denied joinder of other plaintiffs.

In Finefeuiaki v. Maui Community Correctional Center Staff, 2018 U.S. Dist. LEXIS 124678 (D HI, July 25, 2018), a Hawaii federal district court dismissed an inmate's complaint that authorities could not locate his Bible, daily bread, and religious handbook during a 5-day perioid.

In Mears v. Kauffman, 2018 U.S. Dist. LEXIS 125038 (MD PA, July 26, 2018), a Pennsylvania federal district court dismissed an inmate's complaint that after a chaplain accused him of homosexual activity, a correctional officer removed him from services and urged him not to attend services conducted by that chaplain, or not bring the other inmate with whom he allegedly has sexual contact.

In Cox v. United States, 2018 U.S. Dist. LEXIS 124412 (D MN, July 25, 2018), a Minnesota federal district court adopted a magistrate's report (2018 U.S. Dist. LEXIS 125213, June 28, 2018), and dismissed an inmate's complaint that a counselor told him to stop praying.

In Brown v. Ryles, 2018 U.S. Dist. LEXIS 125256 (ED AR, July 26, 2018), an Arkansas federal magistrate judge dismissed an inmate's complaint that he was denied the right to shave in accordance with his religion.

NYT Profiles Wealthy Hindu Holy Man With Rising Political Power In India

Today's New York Times Magazine carries a lengthy profile of Baba Ramdev, holy man and billionaire who has increasing political power in India. Here is an excerpt:

Ramdev has been a prominent voice on the Hindu right, and his tacit endorsement during the landmark 2014 campaign helped bring Prime Minister Narendra Modi to power.... Although Modi campaigned heavily on promises to reform India’s economy and fight corruption, there were frequent dog whistles to the Hindu nationalist base, some of them coordinated with Ramdev. A month before Modi’s landslide victory, a trust controlled by Ramdev released a video in which senior leaders of Modi’s party, the Bharatiya Janata Party (B.J.P.) ... appeared alongside him with a signed document setting out nine pledges. These included the protection of cows — animals held sacred in Hinduism — and a broad call for Hindu nationalist reforms of the government, the courts, cultural institutions and education....

But Ramdev is far more than a useful holy man. Even beyond his political patrons, Ramdev is the perfect messenger for a rising middle class that is hungry for religious assertion and fed up with the socialist, rationalist legacy of Jawaharlal Nehru, India’s first post-independence leader. Ramdev has led vastly popular campaigns against corruption, donning the mantle of swadeshi, or Indian economic nationalism, to cast foreign companies as neocolonial villains. In a sense, Ramdev has changed Hinduism itself. His blend of patriotic fervor, health and religious piety flows seamlessly into the harder versions of Hindu nationalism, which are often openly hostile to India’s 172 million Muslims. Although Ramdev prefers to speak of Indian solidarity, his B.J.P. allies routinely invoke an Islamic threat and rally crowds with vows to build temples on the sites of medieval mosques.

In his own way, Ramdev is India’s answer to Donald Trump, and there is much speculation that he may run for prime minister himself.

Pope Accepts Resignation of Cardinal McCarrick Amid Growing Sex Misconduct Charges

Crux reported today that at the Vatican, Pope Francis has accepted the resignation of Cardinal Theodore McCarrick from the College of Cardinals. The 88-year old cardinal's resignation comes amid growing numbers of complaints about past sexual abuse and misconduct by the now-retired Archbishop of Washington.  The Pope ordered McCarrick "to remain in a house yet to be indicated to him, for a life of prayer and penance until the accusations made against him are examined in a regular canonical trial."  In 2002, McCarrick was the leading drafter of the "Charter for the Protection of Children and Young People" which imposed new safeguards to protect minors from clergy abuse.

Another Side of the National Prayer Breakfast

The New York Times yesterday profiled a different side of the annual National Prayer Breakfast, saying that it has become a vehicle for "Washington’s corps of lobbyists and fixers" to arrange access for their clients to important government officials and other infludentials. The reports says in part:

Held every year at the Washington Hilton, the prayer breakfast festivities span several days during the first week of February, with the American president appearing at a ceremonial breakfast on Thursday. The days are packed with programming, after which guests head to private suites ... where they mingle late into the night — praying, sharing business cards and sometimes draining expensive bottles of cognac....

Some describe the gathering as similar to the World Economic Forum, except that Jesus is the organizing principle. The eclectic guest list has included the Dalai Lama, the Rev. Billy Graham, Mother Teresa, the singer Bono and the former Redskins coach Joe Gibbs, as well as the Palestinian leader Yasir Arafat and President Paul Kagame of Rwanda.

Lobbyists say the event has become even more of a coveted invitation in the Trump era, as foreign politicians scrambled to forge connections with a president who swept into office with few ties to the international community or Washington’s hierarchy of established foreign access brokers.

With its relative lack of diplomatic protocols and press coverage, the prayer breakfast setting is ideal for foreign figures who might not otherwise be able to easily get face time with top American officials, because of unsavory reputations or a lack of an official government perch, according to lobbyists who help arrange such trips....

Pence Announces New US Program To Aid Victims of Genocide and Religious Persecution

Yesterday, Vice President Mike Pence delivered a 30-minute address (full text) at the State Department's Ministerial to Advance Religious Freedom.  The Vice President called out a long list of countries for their records of religious persecution and intolerance.  He went on to say:

And it’s my privilege as Vice President to announce today that the United States of America will establish the Genocide Recovery and Persecution Response Program, effective today....

Under this new program, the State Department and the U.S. Agency for International Development will closely partner with local faith and community leaders to rapidly deliver aid to persecuted communities, beginning with Iraq.  Crucially, this support will flow directly to individuals and households most in need of help.

Atheist Firefighter Can Move Ahead With Hostile Work Environment Claim

In Queen v. City of Bowling Green, (WD KY, July 20, 2018), a Kentucky federal district court allowed an atheist firefighter to move ahead with his claim of hostile work environment based on religion. The court, analyzing his claim under the Kentucky Civil Rights Act, said in part:

Defendants argue that Queen cannot prove the religious harassment he  experienced was unwanted. Rather, Defendants contend that jokes,  pranks, and teasing are all part of the fraternal environment at the Fire Department that Queen enjoyed and participated in.  However, since the Defendants are  moving  for  summary  judgment, the Court must consider the facts in a light favorable to Queen.  According to Queen, none of the harassment he experienced was welcomed.  As he tells it, he was interrogated about his religion by coworkers and forced against his will to participate in Bible studies.  Ultimately, he claims that he was threatened and physically assaulted.  For this reason, there is enough evidence for a reasonable jury to conclude that the harassment Queen experienced was unwanted.

Friendly Atheist blog has more on the decision.

Lesbian Spouses Sue Senior Housing Community For Discrimination

A suit was filed in Missouri federal district court this week by a lesbian married couple against a senior housing community for refusing to rent to same-sex couples. The complaint (full text) in Walsh v. Friendship Village of South County, (ED MO, filed 7/25/2018), alleges that the senior housing community which is not religiously affiliated has a Cohabitation Policy that provides:

Friendship Village “will permit the cohabitation of residents within a single unit only if those residents, while residing in said unit, are related as spouses by marriage, as parent and child or as siblings,” defining “[t]he term ‘marriage’ as used in this policy means the union of one man and one woman, as marriage is understood in the Bible.”

The suit alleges violation of the Federal Fair Housing Act and Missouri's Human Rights Act. Friendly Atheist blog has more on the lawsuit.

3rd Circuit Refuses To Enjoin School's Accommodation of Transgender Students

In Doe v. Boyertown, (3d Cir., July 26, 2018), the U.S. 3d Circuit Court of Appeals in a revised panel decision refused to enjoin a Pennsylvania school district from allowing transgender students to use bathrooms and locker rooms consistent with their gender identities instead of  the sex they were assigned at birth. The court rejected privacy, Title IX and state tort claims, saying in part:

As we have already noted, we do not intend to minimize or ignore testimony suggesting that some of the appellants now avoid using the restrooms and reduce their water intake in order to reduce the number of times they need to use restrooms under the new policy. Nor do we discount the surprise the appellants reported feeling when in an intimate space with a student they understood was of the opposite biological sex. We cannot, however, equate the situation the appellants now face with the very drastic consequences that the transgender students must endure if the school were to ignore the latter’s needs and concerns. Moreover, as we have mentioned, those cisgender students who feel that they must try to limit trips to the restroom to avoid contact with transgender students can use the single-user bathrooms in the school.

Yesterday following the issuance of the revised panel decision, the full court denied an en banc rehearing in the case, with 3 judges dissenting from the denial. (Full text of order and dissent.) The dissenters argued:

The revised panel opinion rightly acknowledges that a school policy addressing transgender students’ use of bathrooms and locker rooms is a matter of high importance to Boyertown and its students. Given that public importance and the obvious sensitivity of the issues involved, one would have thought that the opinion would address only the facts at issue and then only to the extent necessary. But the panel went beyond what was necessary when it chose to address Boyertown’s tangential argument that the school district would have run afoul of Title IX had it implemented a policy that confined transgender students to use of bathrooms and locker rooms designated for their biological sex....

The Morning Call reports on the decisions.

Deal To Free American Pastor Held By Turkey Falls Through

Washington Post reported yesterday that President  Trump thought he had struck a deal with Turkey's President Recep Tayyip Erdogan at the recent NATO meeting for the release of American pastor Andrew Brunson who has been held by Turkey for two years on supposed terrorism charges:

The deal was a carom shot, personally sealed by Trump, to trade a Turkish citizen imprisoned on terrorism charges in Israel for Brunson’s release. But it apparently fell apart on Wednesday, when a Turkish court, rather than sending the pastor home, ordered that he be transferred to house arrest while his trial continues.

Thursday morning, after a rancorous phone call with Erdogan, Trump struck back. The United States “will impose large sanctions” on Turkey, he tweeted. “This innocent man of faith should be released immediately.”

6th Circuit Refuses To Reopen Asylum Claim By Egyptian Coptic Christian

In Welson v. Sessions, (6th Cir, July 26, 2018), the U.S. 6th Circuit Court of Appeals refused to reopen a petition for refugee status filed by an Egyptian Coptic Christian.  The immigration judge had held that petitioner was not
credible and had not demonstrated a well-founded fear of persecution in Egypt. The 6th Circuit said in part:

In support of his motions to reopen, Welson chiefly relies on articles describing various recent acts of terrorism perpetrated by ISIL, including: the December 2016 bombing of a Coptic cathedral in Cairo; the April 2017 bombing of two Coptic churches, both in Northern Egypt, on Palm Sunday; and a May 2017 incident in Southern Egypt where gunmen fired on vehicles carrying Coptic Christians. However, as the BIA reasoned, these articles describe events which, while indisputably terrible and tragic, are nevertheless similar to those conditions considered by the IJ at Welson’s individual hearing. Moreover, none of the additional reports and articles disturbs a key portion of the IJ’s reasoning—namely, that Welson’s family continues to live in Sohag, Egypt, unharmed, and that the Egyptian government under the leadership of President elSisi has undertaken to improve conditions for Coptic Christians. These new articles accordingly do not show that if the case were reopened Welson would likely prevail on his asylum claim.

[Thanks to Tom Rutledge for the lead.] 

3rd Circuit: Nuns Lose Pipeline Challenge On Procedural Grounds

In Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, (3d Cir., July 25, 2018), the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of a RFRA challenge by an Order of Catholic nuns (the "Adorers") to FERC's approval of a pipeline project. The natural gas pipeline runs through land owned by the Adorers. Developers were authorized to acquire land for the pipeline by eminent domain.  According to the court:

The Adorers object to the use of their land as part of the Project, explaining that their deeply-held religious beliefs require that they care for the land in a manner that protects and preserves the Earth as God’s creation. But despite receiving notice of the proposed project, the Adorers never raised this objection before FERC.

The Natural Gas Act calls for appeals from FERC orders to be filed with the Court of Appeals. The Adorers failed to follow this procedural route. The court held:

The Adorers contend that the plain language of this judicial relief provision grants them a statutory right to assert their RFRA claim in district court. We disagree. The NGA is a detailed statute, setting forth specific provisions on the procedure by which approval and subsequent review of a pipeline project may be attained.

Lancaster Online reports on the decision.

Indonesia Sentences Student To 4 Years In Jail For Anti-Muslim Facebook Post

AFP reports that on Tuesday a court on the Indonesian island of Sumatra sentenced a 21-year old Christian university student to 4 years in jail and a fine of $70,000 (US) for a Facebook post that compared the Prophet Muhammad to a pig and said that Muhammad approved bestiality.  The student, Martinus Gulo, had been charged under Art. 28 of Indonesia's Electronic Information and Transactions law (with unrelated 2016 amendments) that outlaws spreading hatred or dissension against individuals or groups based on their race, religion or ethnicity.

Church of England Court Permits Exhumation of Atheist From Hallowed Ground

The Hertfordshire Mercury reports on an unusual decision in Britain last week by a Church of England Consistory Court.  In In re Chestnut Cemetery (No. 1) re Exhumation of Hugill, (Consist. Ct., July 18, 2018), the Court permitted the exhumation of the cremated remains of an infant buried in 1982 in a Church of England cemetery.  The infant's parents are both Atheists, and they did not know at the time of the burial that the cemetery site was hallowed ground. They discovered this in 2017 and now seek to have the remains reburied in an un-consecrated plot. The court said in part:

The starting point is the presumption that the burial of human remains in consecrated ground is permanent.... However the Court has a discretion to permit exhumation in exceptional circumstances....

On the case that has been presented to me it appears that the most important and relevant of the factors referred to above is mistake. In particular, Mrs Wilson’s evidence that she was at all material times, until on or around September 2017, unaware that Lizzie’s remains had been interred in consecrated ground by reason of her total (and understandable) lack of contact with the funeral arrangements when they were made, and her evidence that, as an Atheist, the burial in these circumstances is something she would never have agreed to if she had been informed. These facts, in my judgment, amount to a fundamental mistake as to the arrangements made for the interment of Lizzie’s remains.

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]