Recent Articles of Interest

From SSRN:

• Elizabeth Papp Kamali, Trial by Ordeal by Jury in Medieval England, or Saints and Sinners in Literature and Law, (Kate Gilbert and Stephen D. White, eds., Emotion, Violence, Vengeance and Law in the Middle Ages: Essays in Honour of William Ian Miller (Leiden: Brill, 2018)).
• Daniel O. Conkle, Animus and Its Alternatives: Constitutional Principle and Judicial Prudence, (Stetson Law Review, Forthcoming).
• Samuel Wolfe Calhoun, Separation of Church and State: Jefferson, Lincoln, and the Reverend Martin Luther King, Jr., Show It Was Never Intended to Separate Religion from Politics, 74 Wash. & Lee L. Rev. Online 459 (2018).
• Rafael Domingo & Giovanni Minnucci, Alberico Gentili and the Secularization of the Law of Nations, (in Rafael Domingo and John Witte, Jr. (eds.), Christianity and Global Law. An Introduction (Cambridge University Press, 2020).
• Robert C. Blitt, The Wolf Act Amendments to the U.S. International Religious Freedom Act: Breakthrough or Breakdown?, (July 26, 2018).
• Katie R. Eyer, Animus Trouble, (Stetson Law Review, Forthcoming).

From SSRN (Free Speech issues):

• Noah Chauvin, Policing the Heckler's Veto: Toward a Heightened Duty of Speech Protection on College Campuses, (Creighton Law Review, Forthcoming).
• Jason M. Shepard & Kathleen Bartzen Culver, Culture Wars on Campus: Academic Freedom, the First Amendment and Partisan Outrage in Polarized Times, (San Diego Law Review, Vol. 55: 87-158 (2018)).
• Gregory S. Gordon, Freedom of Expression, Hate Speech, and Incitement to Terrorism and Genocide: Resonances and Tensions, (in"Incitement to Terrorism"; Published by Brill, Eds Bayefsky, A.F., Blank, L.R., (2018)).

From SSRN (Religious Law)

• Yehezkel Margalit, Temporary Marriage – A Comparison of the Jewish and Islamic Conception, (33(1) Journal of Law and Religion 89 (2018)).
• Doug Magendanz, Gratian in Paradise: Canon Law and the Desecularisation of Civil Society, (August 1, 2018).
• Joshua Carback, On Sharia in American Family Law: Confronting the Dangers of Legal Pluralism, 7 International Journal of Jurisprudence of the Family 115 (2016)).
• Yeheil Kaplan, Enhancement of International Rights and Norms Prescribed for Children: The Promise of Interpretation of Religious Law, (7 International Journal of Jurisprudence of the Family 269 (2016).
• Nashon Perez & Elisheva Rosman-Stollman, Balaniyot, Baths and Beyond: Israel's State-Run Ritual Baths and the Rights of Women, (July 29, 2018).

From SSRN (Islam and Muslim Nations):

• Geoffrey Swenson, Why U.S. Efforts to Promote the Rule of Law in Afghanistan Failed, (International Security (2017) Vol. 42(1), pp.114-151).
• Ihsan Yilmaz, Nation Building, Social Engineering and Unofficial Legal Pluralism in Turkey and Pakistan, (June 4, 2017).
• Ihsan Yilmaz, Islamist Educational Policies, Islam and Erdoganist Nation Building in Turkey, (July 4, 2017).
• IhsanYilmaz, Islamic Counter-Hegemonic Legal Knowledge and Its Unofficial Interpretation and Glocal Dissemination, (March 4, 2018).
• Sharif Islam, The Ibn Rushd Syndrome: In Search of Rational Muslim, (July 10, 2018).

Court Awards Attorneys' Fees In Contraceptive Mandate Case

In Catholic Benefits Association LCA v. Azar, (WD OK, Aug. 15, 2018), an Oklahoma federal district court awarded attorneys' fees that were dramatically lower than requested by plaintiff's counsel.  The case was one of the lengthy challenges to the Obama Administration's contraceptive coverage mandate's applicability to religious non-profit organizations.  Plaintiffs' counsel requested $3.1 million in fees. In a 36-page opinion, the court ultimately awarded $718,607 in fees and expenses.

Recent Prisoner Free Exercise Cases

In Smith v. Penzone, 2018 U.S. Dist. LEXIS 135075 (D AZ, Aug. 10, 2018), an Arizona federal district court dismissed an inmate's complaint that he was denied assistance with a three-day fast based on the Christian faith surrounding the Ritualistic Day of Atonement, and was denied religious services.

In Robinson v. Cameron, 2018 U.S. Dist. LEXIS 135394 (WD PA, Aug. 9. 2018), a Pennsylvania federal magistrate judge, in a case on remand from the 3rd Circuit, recommended dismissing an inmate's complaint that the sex offender program's requirement that he take responsibility for his offenses amounts to a religious confession which is only to be made to God through Jesus.

In Kelly v. Warden, 2018 U.S. Dist. LEXIS 135602 (SD CA, Aug. 10, 2018), a California federal district court allowed a Catholic inmate to move ahead with his complaint that he was not allowed to change his name to that of his stepfather, which he needed to do to obey the religious obligation to honor his father.

In Chrisco v. Scoleri, 2018 U.S. Dist. LEXIS 136238 (D CO, Aug. 13, 2018), a Colorado federal magistrate judge dismissed an inmate's complaint that he was forcibly medicated because of his religious belief in Alchemical Christianity.

In Woodward v. Ali, 2018 U.S. Dist. LEXIS 136436 (ND NY, Aug. 10, 2018), a New York federal magistrate judge recommended that a Muslim inmate be allowed to move ahead with his complaint that he was removed from the Ramadan meal list, and this was done in retaliation for a complaint he filed against the Muslim chaplain.

In Grayson v. Furlow, 2018 U.S. Dist. LEXIS 136446 (SD IL, Aug. 13, 2018), an Illinois federal magistrate judge allowed an inmate who is a member of the African Hebrew Israelites of Jerusalem and who has taken the Nazirite vow to move ahead with his complaint that his dreadlocks were forcibly cut off in order to have a second identification photo taken.

In Wright v. Lassiter, 2018 U.S. Dist. LEXIS 136823 (WD NC, Aug. 13, 2018), a North Carolina federal district court dismissed an inmate's claims that his religious items were confiscated on various occasions.

In Wilbur v. Fitzpatrick, 2018 U.S. Dist. LEXIS 136898 (D ME, Aug. 14, 2018),  a Maine federal magistrate judge recommended dismissing an inmate's complaint that he was denied access to attend religious services and other faith activities as the result of disciplinary restrictions.

In Snowden v. Prince George's County Department of Corrections, 2018 U.S. Dist. LEXIS 137107 (D MD, Aug. 14, 2018), a Maryland federal district court allowed Muslim inmates to move ahead with their complaint that they were not permitted to perform Friday religious services or daily congregational prayer, while authorities arranged services for Christian inmates.

In McMillan v. Hughes, 2018 U.S. Dist. LEXIS 138953 (D NJ, Aug. 16, 2018), a New Jersey federal district court dismissed an inmate's complaint that officers humiliated him by criticizing his religious requirement of trimming excessive pubic hair.

EEOC Sues Over Hostile Treatment of Catholic Employee

The EEOC announced on Thursday that it had filed a Title VII lawsuit against New Jersey-based Hackensack Meridian Health alleging a manager's religious harassment of a Catholic employee. According to the press release:

Hackensack was aware of but failed to stop a hostile work environment at its Edison, N.J., facility. Shortly after the employee was hired to perform clinical data analytics work, his manager learned he was Catholic and reacted negatively upon seeing a crucifix in the employee's office. Since then, the manager regularly belittled him, screamed at him, and ridiculed his work in front of others.

Dutch High Court Rules Pastafarianism Is Not A Religion

The Guardian reported yesterday that Netherlands highest court, the Council of State, has ruled that law student Mienke de Wilde who is a Pastafarian cannot wear a colander on her head in her passport and drivers license photo. While Dutch law allows the head to be partially covered for such photos for genuine religious reasons, the court ruled that the Church of the Flying Spaghetti Monster lacks the seriousness and coherence required of a religion.  The court said:

It is important to be able to criticise religious dogma freely through satire but that does not make such criticism a serious religion.

Court Not Barred From Adjudicating Church Merger

In Pure Presbyterian Church of Washington v. Grace of God Presbyterian Church, (VA Sup. Ct., Aug. 16, 2018), the Virginia Supreme Court affirmed a trial court's judgment enforcing a merger agreement between two local Korean speaking Presbyterian churches. Seven months after the congregations had been worshiping together, one of the congregations attempted to withdraw from the merger. The other congregation sued to validate the merger. The Supreme Court rejected the argument that it lacked jurisdiction under the ecclesiastical abstention doctrine, saying in part:

There is nothing inherently ecclesiastical about an agreement to merge two entities.  Although a dispute over the existence or effect of a merger agreement could turn on questions of church doctrine, that is not the case here. Contract law principles are “neutral principles” of law that courts can employ to resolve a dispute between churches. Whether a church voted to merge is a question of fact that does not require a court to resolve an “ecclesiastical” question. Although the merger agreement spelled out who would continue to serve as pastor and which entity would survive, neither of the parties, nor the court, relied on any theological or ecclesiastical principles to resolve the issue of whether the churches agreed to merge and whether Grace Presbyterian honored its commitment under the merger agreement.

Defamation Suit Dismissed Under Ecclesiastical Abstention Doctrine

In Orr v. Fourth Episcopal District African Methodist Episcopal Church, (IL App., Aug. 14, 2018), an Illinois state appellate court dismissed on ecclesiastical abstention grounds a defamation lawsuit brought by Rev. Charles Orr, the chairperson of a committee responsible for screening candidates for admission to the ministry within the AME Church. A woman whose application for the ministry was deferred charged Orr with sexual harassment. The charge was shared with others in the church hierarchy.  The court said in part:

Plaintiff failed to present evidence that defendants published Tamara’s statements to anyone outside of the internal disciplinary procedures of the AME Church. The statements made pursuant to the internal disciplinary procedures come within the ecclesiastic abstention doctrine and, accordingly, are protected by the first amendment.

WGLT News reports on the decision.

Suit Claims Utah Medical Marijuana Initiative Violates Mormons' Religious Freedom

The Salt Lake Tribune reports that yesterday a suit was filed in Utah state court seeking, on free exercise and free speech grounds, to remove Utah's medical marijuana initiative from the November ballot.  The suit, citing the U.S. Supreme Court's recent Masterpiece Cakeshop decision, challenges the provision (Sec. 26-60b-110) in the initiative (full text) that bars refusals to rent to a medical marijuana card holder. The complaint reads in part:

In the United States of America, members of all religions, including the Church of Jesus Christ of Latter Day Saints have a constitutional right to exercise their religious beliefs. This includes the right not to consort with, be around, or do business with people engaging in activities which their religion finds repugnant....

The State of Utah is attempting to compel the speech of Utah landowners by suppressing their ability to speak out against cannabis use and consumption by only renting to tenants who do not possess or consume cannabis," the complaint reads, “and who support their viewpoints in opposition against cannabis possession and consumption.

In the suit, plaintiff contends that his "religious beliefs include a strict adherence to a code of health which precludes the consumption and possession of mind-altering drugs, substances and chemicals, which includes cannabis and its various derivatives." Apparently this is based on interpretation of the Mormon Word of Wisdom health code.

No Standing To Assert Jewish Tenant's Free Exercise Objection To Saturday Eviction

Hurley v. Town of Southampton, 2018 U.S. Dist. LEXIS 137089 (ED NY, Aug. 13, 2018) involves various claims by the owner of a rental property stemming from his prosecution for violating Southampton's transient rental law. In the case, a federal magistrate judge recommended dismissing for lack of standing the owner's assertion that the free exercise rights of one of his tenants were violated when he was evicted by Code Enforcement officials. Plaintiff claimed that the Saturday eviction of the tenant and his children forced the tenant, an Orthodox Jew, to drive his car on the Sabbath in violation of his religious beliefs.

Masterpiece Cakeshop Sues Colorado In New Religious Accommodation Dispute

In the wake of the Masterpiece Cakeshop decision by the U.S. Supreme Court in June, Masterpiece Cakeshop owner Jack Phillips is again entangled in litigation.  The complaint (full text) in Masterpiece Cakeshop, Inc. v. Elenis, (D CO, filed 8/14/2018) alleges that the Colorado Civil Rights Commission violated Phillips' free exercise, free speech, equal protection and due process rights when on July 2 it issued a Determination (full text) that Phillips violated the state's public accommodation anti-discrimination law by refusing to bake a birthday cake that celebrates a customer's gender transition.  The district court lawsuit alleges in part:

6.... [S]ome Colorado citizens, emboldened by the state’s prosecution of Phillips, have targeted him. On the same day that the Supreme Court announced it would hear Phillips’s case, a Colorado lawyer called his shop and requested a cake designed with a blue exterior and pink interior, which the caller said would visually depict and celebrate a gender transition. Throughout the next year, Phillips received other requests for cakes celebrating Satan, featuring Satanic symbols, depicting sexually explicit materials, and promoting marijuana use. Phillips believes that some of those requests came from the same Colorado lawyer.

7. Phillips declined to create the cake with the blue and pink design because it would have celebrated messages contrary to his religious belief that sex—the status of being male or female—is given by God, is biologically determined, is not determined by perceptions or feelings, and cannot be chosen or changed. A mere 24 days after Phillips prevailed in the Supreme Court, Colorado told him that he violated Colorado law by declining to create that cake. In so doing, the state went back on what it told the Supreme Court in its Masterpiece briefing—that its public accommodation law allows Phillips to decline to create cakes with pro-LGBT designs or themes.

ADF issued a press release announcing the filing of the lawsuit. Fox 31 News reports on the lawsuit.

Indonesian Blasphemy Trial Underway For Woman Who Complained About Mosque Loudspeakers

AP reports on the blasphemy trial of an ethnic Chinese woman in the Indonesian province of North Sumatra. The woman was charged after she complained in 2016 about the volume of a mosque's loudspeakers. Reports of her complaint led to a July 2016 riot in which 14 Buddhist temples were burned and ransacked. Two people have been charged for instigating that riot.  Prosecutors are asking for an 18 month prison term in the blasphemy trial.

Pennsylvania Grand Jury Report On Catholic Dioceses Sex Abuse Is Released

As previously reported, last month the Pennsylvania Supreme Court ordered 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 full text of the report was made public yesterday. Statements on the release of the report, or in anticipation of it, were issued by the Catholic dioceses of Allentown, Erie, Greensburg, Harrisburg, Pittsburgh, and Scranton. The Pittsburgh Post-Gazette reports on the statement by Pennsylvania's attorney general upon release of the document.

Fraudulent Concealment Claim Against LDS Church Can Proceed

In Denson v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (D UT, Aug. 13, 2018), a Utah federal district court permitted a sexual assault victim to move ahead with her suit against the LDS Church for fraudulent concealment of its knowledge that the president of the Mission Training Center was a sexual predator. A number of other claims were dismissed, including those against the sexual predator that were dismissed on statute of limitations grounds.  Fox 13 News reports on the decision.

1st Circuit RefusesTo Change District Court's Language Criticizing Anti-LGBT Activist

In Sexual Minorities Uganda v. Lively, (1st Cir., Aug. 10, 2018), the U.S. 1st Circuit Court of Appeals refused to purge the opinion of a Massachusetts federal district court of language that harshly criticized the actions of anti-LGBT activist Pastor Scott Lively.  The 1st Circuit said that because Lively had won in the district court, it lacks jurisdiction over an appeal, noting:

federal courts of appeals have no roving writ to review ... a district court's word choices...

The case involved an Alien Tort Statute lawsuit against Lively growing out of his aid to anti-LGBT activists in Uganda. The district court held that there had been insufficient conduct in the United States to support a suit under the ATS. Courthouse News Service reports on the decision.

Federal Contract Compliance Office Issues Directive On Religious Rights of Contractors

The Office of Federal Contract Compliance Programs last week issued Directive 2018-03 (Aug. 10, 2018) in order to maximize free exercise rights of federal contractors and subcontractors. OFCCP is responsible for enforcing the anti-discrimination and equal opportunity provisions applicable to contractors and subcontractors.  The Directive says in part:

Recent court decisions have addressed the broad freedoms and anti-discrimination protections that must be afforded religion-exercising organizations and individuals under the United States Constitution and federal law. See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018) (government violates the Free Exercise clause when its decisions are based on hostility to religion or a religious viewpoint); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2022 (2017) (government violates the Free Exercise clause when it conditions a generally available public benefit on an entity’s giving up its religious character, unless that condition withstands the strictest scrutiny); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2775 (2014) (the Religious Freedom Restoration Act applies to federal regulation of the activities of for-profit closely held corporations)....

OFCCP staff are instructed to take these legal developments into account in all their relevant activities, including when providing compliance assistance, processing complaints, and enforcing the requirements of E.0. 11246....

Liberty Counsel issued a press release discussing the Directive. Think Progress reports on the Directive.

Recent Articles of Interest

From SSRN:

• Brendan T. Beery, Rational Basis Loses Its Bite: Justice Kennedy's Retirement Removes the Most Lethal Quill from LGBT Advocates' Equal-Protection Quiver, (Syracuse Law Review, Forthcoming).
• Rachel A. Harmon, Policing, Protesting, and the Insignificance of Hostile Audiences, (Knight First Amend. Inst. (Nov 2, 2017)).
• William D. Araiza, Animus and its Discontents, (Florida Law Review, Forthcoming).
• Teemu Ruskola, Notes on The Neutered Mother, or Toward a Queer Socialist Matriarchy, (Emory Law Journal, Vol. 67, No. 1165, 2018).
• Julia Quigley, Payments in Lieu of Trouble: Nonprofit Pilots as Extortion or Efficient Public Finance?, (NYU Environmental Law Journal, Vol. 26, No. 2, 2018).

From SmartCILP:

• Tesch Leigh West, When Corporations Go to Church: Free Exercise Under Hobby Lobby, [Abstract], 27 Boston University Public Interest Law Journal 37-71 (2018).
• Carson Holloway, Judicial Review and Subjective Intentions, [Abstract], 9 Faulkner Law Review 1-26 (2017).
• Hon. Kenneth Starr, [Abstract], Presidents as Tradition Creators and Tradition Keepers, 9 Faulkner L. Rev. 27-43 (2017).
• Roberto Rosas, The Ecclesiastical Tribunals Field Hospital for Wounded Marriages The New Matrimonial Processus Brevior, 16 Seattle Journal for Social Justice 427-485 (2017).
• Allan W. Vestal, Cents and Sensibilities, 20 University of Pennsylvania Journal of Constitutional Law 245-311 (2017).
• Patrick Weil, Freedom of Conscience, But Which One? In Search of Coherence in the U.S. Supreme Court's Religion Jurisprudence, 20 University of Pennsylvania Journal of Constitutional Law 313-370 (2017).

Recent Prisoner Free Exercise Cases

In  Allah v. Semple, 2018 U.S. Dist. LEXIS 131476 (D CT, Aug. 6, 2018), a Connecticut federal district court dismissed a Nation of Gods and Earths inmate's complaint that his ability to practice his religion has been blocked.

In Evans v. Prisk, 2018 U.S. Dist. LEXIS 131900 (WD MI, Aug. 6, 2018), a Michigan federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 132655, July 5, 2018) and dismissed a Jehovah's Witness inmate's free exercise claim, but permitted him to move ahead with his equal protection complaint that the rule requiring at least 5 inmates before a group religious service will be held was applied unequally.

In Lopez v. Los Angeles County Sheriff's Department, 2018 U.S. Dist. LEXIS 133827 (CD CA, Aug. 7, 2018), a California federal magistrate dismissed, with leave to amend, a Jehovah's Witness free exercise and equal protection claims alleging denial of weekly religious services and of chapel time with his volunteer chaplain.

In Simmons v. Atkins, 2018 U.S. Dist. LEXIS 133863 (ED CA, Aug. 7, 2018), a California federal magistrate judge recommended dismissing an inmate's complaint that he is not allowed to conduct sweat lodge ceremonies for himself and other indigenous inmates.

In Crayton v. Ramey, 2018 U.S. Dist. LEXIS 133954 (ND CA, Aug. 6, 2018), a California federal district court allowed an inmate who was a member of the "original Hebrew faith (Black Jews) religions" to move ahead with his free exercise complaint that defendant made "foul derogatory remarks ridiculing ... [his] Hebrew religious faith."

IRS Grants Non-Profit Church Status To Lesbian Anti-Trans Organization

TaxProf blog and Forbes report on the recent decision by the Internal Revenue Service to grant 501(c)(3) non-profit status to the Pussy Church of Modern Witchcraft.  The IRS also granted the organization tax status as a church. PCMW describes itself as "a congregation of adherents to our female born, lesbian-feminist-based religions beliefs and traditions." It goes on to say "We expressly reject the concepts of gender identity, transgenderism, and gender as being meaningful to defining what a Woman or Girl is." [Thanks to Steven H.Sholk for the lead.]

No Free Exercise Violation In Teacher's Support of Transgender Student

In Leontiev v. Corbett School District, (D OR, Aug. 10, 2018), a Oregon federal district court dismissed a suit brought against a school district and a number of individuals by the mother of a transgender male high school student. The suit alleged that several individuals interfered with plaintiff's parental relationship in helping the student leave his home. It also alleged that one teacher violated plaintiff's First Amendment rights by disparaging her religion when she told a deputy sheriff that plaintiff and her husband were conservative Christians who were not supportive of the student's gender transition. The court said:

... [T]he Court can find no case, that supports the constitutional principle that an off-duty teacher who has never had a particular student in her class violates the Free Exercise Clause of that student’s parent when the teacher, off school premises, expresses her personal opinion, even if that expression is critical of the parent’s religious beliefs. If a public school teacher makes derogatory comments about a particular religion in a classroom in the presence of students, that teacher very well may have violated clearly established principles under the First Amendment, either in violation of the Establishment Clause or, perhaps, the Free Exercise Clause. But that is not what happened in this case....

Court Refuses To Dismiss Church's Challenge To Zoning Conditions For Homeless Shelter

In First Lutheran Church v. City of St. Paul, (D MN, Aug. 8, 2018), a Minnesota federal district court allowed a church located in a residential are of St. Paul to move ahead with a variety of challenges to conditions imposed on its partnering with a homeless shelter. Plaintiff claimed that the conditions, among other things, violate its rights under RLUIPA, the 1st Amendment, the equal protection clause and provisions of the Minnesota constitution. However the court did dismiss it substantive due process challenge. The court had previously granted a preliminary injunction as to two of the conditions.

Chautauqua Cottage Community Eliminates Christian-Only Clause

As previously reported, last year a suit was filed in Michigan federal district court against the Bay View Association, a Lake Michigan summer community with roots in the Chautauqua Movement, challenging provisions in the Association's rules that limit cottage ownership to practicing Christians. Now, according to the Grand Rapids News, nearly 70% of the members of the Association have voted to amend its bylaws to eliminate the requirement that members be of the "Christian persuasion."

Church's RLUIPA Zoning challenge Can Move Ahead

In Redemption Community Church v. City of Laurel, Maryland, (D MD, Aug. 8, 2018), a Maryland federal district court refused to dismiss a lawsuit brought by a small Christian church challenging the city's zoning regulations that require houses of worship located on less than one acre in a commercial zone to obtain a special zoning exception.  The church planned to operate a non-profit coffee house and a house of worship from the same property. The court held that the church had adequately stated claims for violation of RLUIPA's equal terms and non-discrimination provisions as well as various provisions of the 1st and 14th Amendments.

UK Employment Tribunal Says Scottish Independence Is Protected Philosophical Belief

The United Kingdom's Equality Act prohibits not just religious discrimination, but also discrimination on the basis of any philosophical belief.  Scotland's Sunday Herald reports that a Scottish Employment Tribunal has held that Scottish independence qualifies as a philosophical belief under the statute.  The case was brought by Christopher McEleny, a Scottish National Party member of a local Council who was planning to run for an SNP leadership position.  McEleny contended that the Ministry of Defense illegally discriminated against because of his independence beliefs when it suspended. his security clearance.  This led to his being fired from his position as an electrician at a munitions site.  Law & Religion UK has more on the decision.

Catholic Politicians and the New Church Stance On The Death Penalty

As previously reported, last week the Vatican's Congregation for the Doctrine of the Faith made a change to the Catechism of the Catholic Church so that it now rejects capital punishment in all cases. An AP report now looks at the impact this change may have on politicians in the United States who are Catholic, saying in part:

Pope Francis' decree that the death penalty is "inadmissible" in all cases could pose a dilemma for Roman Catholic politicians and judges in the United States who are faced with whether to strictly follow the tenets of their faith or the rule of law.

Some Catholic leaders in death penalty states have said they'll continue to support capital punishment. But experts say Francis' change could shift political debates, loom over Supreme Court confirmation hearings, and make it difficult for devout Catholic judges to uphold the law as written.

The question of whether or not Catholic political and judicial leaders would be sinning if they continue to support the death penalty is up for interpretation.

"It's going to be a matter of conscience," said the Rev. Peter Clark, director of the Institute of Clinical Bioethics at St. Joseph's University in Philadelphia. "Judges may have to recuse themselves from many cases, if they truly think it's in conflict with their conscience."

Christian Student Group Sues University of Iowa

A suit was filed yesterday in federal district court by two related Christian student organization against the University of Iowa. The complaint (full text) in InterVarsity Christian Fellowship/ USA v. University of Iowa, (SD IA, filed 8/6/2018), challenges the University's deregistration of IVCF as a recognized student organization because the group imposes a religious belief requirement on its student leaders.  Plaintiffs contend that the University has violated their 1st Amendment rights under the Free Exercise, Establishment and Speech clauses, as well as their rights under various provisions of the Iowa constitution and statutory law.  Becket Fund issued a press release announcing the filing of the lawsuit.

UPDATE: On Aug. 14, Becket Fund reported that an agreement has been reached with the University for it to reinstate, while litigation is pending, nearly 40 student groups that had been suspended under this university anti-discrimination policy.

Amicus Briefs In Bladensburg Cross Cert Petitions Now Available

Links (via SCOTUS blog) are now available to the numerous amicus briefs (as well as briefs of the parties) in the certiorari petition in Maryland-National Capital Park and Planning Commission v. American Humanist Association.  In the case, the 4th Circuit, in a 2-1 decision, held that the 40-foot high Bladensburg Cross that has stood for over 90 years as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting). Links are also available to the largely overlapping set of briefs in the related cert. petition in American Legion v. American Humanist Association.

New Survey On Religious Refusals To Provide Service and More

On August 1, the Public Religion Research Institute announced the results of its July 2018 Survey on attitudes toward religiously-based service refusals, LGBT rights and other issues of discrimination. Here are some excerpts from its report:

Close to half (46%) of Americans believe that the owners of wedding-based businesses, such as caterers, florists, and bakers, should be allowed to refuse to serve same-sex couples if doing so violates their religious beliefs, while about as many (48%) say these types of businesses should be required to serve same-sex couples. One year earlier, a majority (53%) of the public said wedding-based businesses should be required to serve gay and lesbian couples, while only about four in ten (41%) said they should not.....

Among major religious groups, white evangelical Protestants express the strongest support for allowing wedding businesses to refuse services.

Nearly two-thirds (64%) of the public express support for same-sex marriage. Only 28% of Americans oppose allowing gay and lesbian couples to marry.... More than seven in ten (71%) Americans say they favor laws that would protect lesbian, gay, bisexual, and transgender (LGBT) people against discrimination in employment, housing, and public accommodations....

Relatively few Americans believe Jewish people in the U.S. are experiencing a considerable amount of discrimination. Only 30% say that Jewish people face a lot of discrimination..... Americans are far more likely to say Muslims are experiencing a substantial degree of discrimination in the U.S. More than six in ten (62%) Americans say there is a lot of discrimination against Muslims....

Connecticut RFRA Does Not Immunize Against Employment Discrimination Suits

In Trinity Christian School v. Commission on Human Rights and Opportunities,  (CT Sup. Ct., Aug. 7, 2018 [official release date]), the Connecticut Supreme Court held that the state's Religious Freedom Restoration Act does not confer complete immunity to religious institutions for employment discrimination suits, and does not operate as a jurisdictional bar to such actions. Thus an interlocutory appeals of an administrative agency's refusal to dismiss a suit is not permitted.

Recent Articles of Interest

From SSRN:

• Engy Abdelkader, Muslims and Islam in U.S. Public Schools: Cases, Controversies and Curricula, (Education, Citizenship, National Identity and Core Values In Western Societies, Brill Publishers (2019 Forthcoming)).
• Cary Franklin, Whole Woman's Health v. Hellerstedt and What It Means to Protect Women, (Forthcoming, Reproductive Rights and Justice Stories (Foundation Press, 2019)).
• Gal Amir, 1648 or 1948? No Room for Westphalia in the Middle-East, (9 Journal on European History of Law no. 1, 99-107 (2018)).
• Kenneth Townsend, A Common Enterprise: Law and the Connection between Civil and Heavenly Realms in the Writings of John Calvin, (Concordia Law Review, Forthcoming).
• Douglas NeJaime & Reva Siegel, Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop, (128 Yale Law Journal Forum __ (2018 Forthcoming)).
• J. Stuart Adams, Taking Colliding Trains Off a Collision Path: Lessons from the Utah Compromise for Civil Society (July 10, 2018). (Chapter 21,  The Contested Place of Religion In Family Law, (Robin Fretwell Wilson, ed., Cambridge University Press, 2018)).
• Guillem Riambau, Clin Lai, Boyu Lu Zhao & Jean Liu, Legal Origins, Religion and Health Outcomes: A Cross-Country Comparison of Organ Donation Laws,(July 24, 2018).
• Geoffrey Swenson, Legal Pluralism in Theory and Practice, (International Studies Review, 2018).
• Alan E. Brownstein, Attempting to Engage in Socially Coherent Dialogue About Religious Liberty and Equality, 31 J. Civ. Rts. & Econ. Dev. 71 (2018).
• Rafael Domingo, Contardo Ferrini (1859–1902): A Contemplative Legal Historian, (In Orazio Condorelli and Rafael Domingo (eds.), Great Christian Jurists in Italian History (Cambridge University Press, 2020)).
• Anna Offit, Review Essay: Giving Life to the Death Penalty, (Political and Legal Anthropology Review, Forthcoming).
• Jack Harrison, 'Because of Sex', (Loyola of Los Angeles Law Review, Vol. 52, No. 1, 2018).

Recent Prisoner Free Exercise Cases

In Brown v. Brown, 2018 U.S. Dist. LEXIS 126580 (SD MS, July 30, 2018), a Mississippi federal district court adopted in part a magistrate's recommendations (2018 U.S. Dist. LEXIS 126903, June 11, 2018) and dismissed Bivens claims and certain other claims by a federal prisoner who claimed religious discrimination while employed at the prison, but allowed plaintiff to move ahead with his 5th Amendment equal protection claim.

In Neal v. Miyares, 2018 U.S. Dist. LEXIS 126993 (SD FL, July 26, 2018), a Florida federal magistrate judge recommended denying an inmate's request for an injunciton orderng that he receive fresh kosher meals.

In West v. Kind, 2018 U.S. Dist. LEXIS 127452 (ED WI, July 31, 2018), a Wisconsin federal district court allowed a Muslim inmate to move ahead with his complaint that his religious beliefs were infringed by allowing him to be strip searched by a transgender male who he regards as a female.

In Hardrick v. MacLaren, 2018 U.S. Dist. LEXIS 126697 (WD MI, July 30, 2018), a Michigan federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 127932, June 18, 2018) and refused to grant summary judgment to either party in an Muslim inmate's suit complaining that defendant blocked accommodating his late request for inclusion in Ramadan meals.

In Hallom v. Bowens, 2018 U.S. Dist. LEXIS 128224 (ND IL, July 31, 2018), an Illinois federal district court dismissed plaintiff's complaint that a Cook County jail employee refused to accommodate his request to attend group Baptist religious services while he was in protective custody.

In Lambright v. Indiana Department of Corrections, 2018 U.S. Dist. LEXIS 128577 (ND IN, July 31, 2018), an Indiana federal district court allowed a Jewish inmate to move ahead to seek an injunction requiring that he be provided with kosher meals.

In Shaw v. Kaemingk, 2018 U.S. Dist. LEXIS 129520 (D SD, Aug. 2, 2018), a South Dakota federal district court dismissed a complaint by an inmate who is a follower of Dorcha Cosán that his religious rights were infringed because he was unable, due to his indigency, to access Internet service to receive books, music and games.

In Hall v. WV DOC, 2018 U.S. Dist. LEXIS 129907 (SD WV, July 13, 2018), a West Virginia federal magistrate judge recommended dismissing an inmate's complaint that the chaplain refused to acknowledge his Zoroastrian religion.

Deacon's Suit Dismissed On Ecclesiastical Abstention Grounds

According to yesterday's News-Gazette, a Champaign, Illinois state trial court has dismissed on ecclesiastical abstention grounds a lawsuit by a former church deacon of the Jericho Missionary Baptist Church.  As described in the news report:

Formerly the chairman of the deacon board that hired Johnson as pastor in 2009, Halcrombe was seeking to fire Johnson some five years later after he and other former church leaders took another look at Johnson's credentials.

Johnson continues to be pastor of the church, but Halcrombe was dismissed as a deacon and removed from his post as registered agent of the church.

Halcrombe's lawsuit set out the details of what became a several-years-long conflict within the church over leadership, membership and money issues, and it sought a judgment to clarify who current church members are, the constitution and bylaws of the church and the authority and employment of Johnson.

Abortion Protesters Sue City For Violating Their Rights

A suit was filed yesterday in an Ohio federal district court by abortion protesters who claim that Toledo, Ohio police have violated their free speech, free exercise and equal protection rights by enforcing or threatening to enforce various provision of Ohio law against them.  The complaint (full text) in Zastrow v. City of Toledo, (ND OH, filed 8/1/2018), contends in part:

The City’s pattern of conduct, which includes arresting, citing, prosecuting and threatening to arrest, cite, and prosecute, pro-life demonstrators, including Plaintiffs, for engaging in expressive religious activity on the public fora adjacent to the Capital Care abortion center, has had, and continues to have, a chilling effect on Plaintiffs’ expressive religious activity, thereby causing irreparable harm.

Courthouse News Service reports on the lawsuit.

Catholic Church Catechism Changed To Reject Capital Punishment In All Cases

Vatican News reported yesterday that the Vatican's Congregation for the Doctrine of the Faith has made a change to the Catechism of the Catholic Church so that it now rejects capital punishment in all cases. Previously the Catechism allowed for capital punishment in "very rare" circumstances.  The new language, approved by Pope Francis, says:

Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good.

Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes.  In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state.  Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.

Consequently, the Church teaches, in the light of the Gospel, that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person”, and she works with determination for its abolition worldwide”.

Qualified Immunity For Issuing Citation To Street Preaher

In Roy v. City of Monroe, (WD LA, Aug. 1 2018), a Louisiana federal district court granted defendant's motion for reconsideration and dismissed on qualified immunity grounds the damage portion of a claim by a street preacher against a police officer.  At issue was a claim that issuance of a citation and summons to the preacher for disturbing the peace violated his First Amendment rights. The court said in part:

Sergeant Booth issued a citation to Roy for disturbing the peace based upon Falcon’s complaint to him, in which she said Roy followed her across the street, called her names, and scared her. Falcon’s complaints were corroborated by Falcon appearing scared and by her direct identification of Roy. Sergeant Booth did not issue a citation to Roy for preaching in a public forum. Viewed from the standpoint of an objectively reasonable police officer, Booth had probable cause, and is entitled to qualified immunity.

Plaintiff's claims for injunctive and declaratory relief and attorneys' fees were set for trial.

"Ministerial Exception" Applies To Church Organist

In Sterlinski v. Catholic Bishop of Chicago, (ND IL, July 23, 2018), An Illinois federal district court held that the ministerial exception doctrine applies to an organist at a Catholic parish.  Plaintiff claims he was demoted from Director of Music to Organist because he is Polish and because of his age. The court previously held that the Director of Music position was within the ministerial exception doctrine.  It now rejected plaintiff's claim that his position no longer qualified as "ministerial" after his demotion. In the court's view:

the key dispute is the importance of music—and, more specifically, the importance of instrumentalists—to Catholic Worship at Mass.

The court went on to say:

the Catholic Bishop argues that the evidence indisputably proves that playing the organ in support of the Church’s religious services still qualifies as performing a ministerial function....

Based on the record evidence, the Court must agree. To start, there is only so much that a federal court may do in questioning a church’s view of its own religious doctrine. It is true that, although “a secular court may not take sides on issues of religious doctrine, it must be allowed to decide whether a party is correct in arguing that there is an authoritative church ruling on an issue, a ruling that removes the issue from the jurisdiction of that court.”... But “once the court has satisfied itself that the authorized religious body has resolved the issue, the court may not question the resolution.”

Cook County Record reports on the decision.

President Meets With Inner City Pastors

Yesterday afternoon, President Trump met at the White House with a group of inner city pastors.  The White House has posted a transcript of remarks by the President and a number of the pastors at the meeting.  They focused primarily on issues of economic development and prison reform.

Treasury Department Sanctions Turkish Officials Over Imprisoned American Pastor

The U.S. Department of Treasury announced yesterday that its Office of Foreign Assets Control has imposed sanctions on Turkey's Minister of Justice Abdulhamit Gul and its Minister of Interior Suleyman Soylu.  They are leaders of Turkish government organizations responsible for the arrest and detention of American pastor Andrew Brunson. Brunson has lived in Turkey for more than 20 years.  According to the Treasury Department:

Pastor Andrew Brunson has reportedly been a victim of unfair and unjust detention by the Government of Turkey.  He was arrested in Izmir, Turkey in October 2016, and with an absence of evidence to support the charges, he was accused of aiding armed terrorist organizations and obtaining confidential government information for political and military espionage. 

Vox, reporting on the Treasury Department's action, says that Brunson's case has become a personal issue for President Trump and Vice President Pence, and is important to many Christian evangelicals.  Turkey, however, apparently sees Brunson's case as tied to its attempt to get the U.S. to extradite Turkish cleric Fethullah Gülen to Turkey.

Challenge To Settlement In Mosque Zoning Case Is Dismissed

In Youkhanna v. City of Sterling Heights, (ED MI, Aug. 1, 2018), a Michigan federal district court dismissed a lawsuit challenging a consent decree approved by the Sterling Heights City Council growing out of a dispute over zoning approval for a mosque. (See prior posting.) The consent decree settled two related lawsuits-- one by the Islamic Center and one by the Department of Justice-- that alleged violations of RLUIPA and of the Islamic Center's free exercise rights.  An overcrowded and contentious City Council meeting preceded approval of the consent decree.  Rejecting the challenge to approval of the consent decree the court said in part:

The crux of Plaintiffs’ Complaint is that the approval of the Consent Judgment should be invalidated because the Council purportedly failed to abide by the City’s Zoning Code by neglecting to consider the discretionary standards set forth in § 25.02. Plaintiffs’ further assert that the Consent Judgment should be invalidated because the City did not comply with the notice requirements under the MZEA [Michigan Zoning Enabling Act]. Both of Plaintiffs’ arguments are without merit.

The court also rejected claims that the Michigan Open Meetings Act had been violated and that defendants' 1st, 4th and 14th Amendment rights had been infringed. The court said in part:

Plaintiffs claim their speech was impermissibly chilled when they and other audience members were limited to a two-minute speaking time, prevented from speaking critically of the Islamic faith, and removed from the meeting for being disruptive. However, ... [w]hen the government designates a limited public forum for speech, as is the case of a city council meeting, it may apply restrictions to the time, place, and manner of speech so long as those restrictions “are content neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”

The court had previously denied a preliminary injunction in the challenge.  Detroit News reports that defendants will appeal yesterday's ruling.

Meanwhile, according to AINA, another mosque controversy is on the horizon in Sterling Heights as a group of Pakistanis are moving ahead with plans to convert a former Lutheran church there into a mosque.

Gym's Failure To Disclose Transgender Policy Violates Michigan Consumer Protection Law

In Cormier v. PF Fitness-Midland, LLC, (MI App., July 26, 2018), a Michigan appellate court in a case on remand from the Michigan Supreme Court held that the gym Planet Fitness violated provisions of the Michigan Consumer Protection Act when it failed to inform plaintiff that it had a policy of allowing members to use whichever locker room and rest room corresponds to the gender with which that person self-identifies. The court concluded that Planet Fitness violated MCL 445.903(1)(s), (bb), and (cc) which prohibit:

(s) Failing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer.

(bb) Making a representation of fact or statement of fact material to the transaction such that a person reasonably believes the represented or suggested state of affairs to be other than it actually is.

(cc) Failing to reveal facts that are material to the transaction in light of representations of fact made in a positive manner.

In concluding that the failure to inform plaintiff of the policy was material, the court said:

After joining the gym, plaintiff saw an assigned male individual in the women’s locker room and then complained to an employee at the front desk and to defendants’ corporate office. Upon being informed of defendants’ unwritten policy on the matter, plaintiff verbally warned other women at the gym about it. Plaintiff’s actions indicate that she strongly preferred a locker room and a restroom in which individuals who are assigned biologically male are not present, and it is thus reasonable to infer that defendants’ failure to inform plaintiff of the unwritten policy affected her decision to join the gym.

A person who successfully sues under Michigan's Consumer Protection Act may recover actual damages or $250, whichever is greater, plus attorneys' fees. Liberty Counsel issued a press release announcing the decision.

Museum Can Keep Biblical Paintings First Acquired By Nazis

In Saher v. Norton Simon Museum of Art at Pasadena, (9th Cir., July 30, 2018), the U.S. 9th Circuit Court of Appeals in a lengthy opinion applied the Act of State Doctrine to reject the attempt by plaintiff to recover two oil paintings of Biblical characters taken by the Nazis from her father-in-law in a forced sale. At issue are Renaissance masterworks painted by Cranach the Elder— "Adam" and "Eve".  The Forward reports on the decision.

Unification Church Sues Its Founder's Son For Trademark Infringement

The Unification Church (Family Federation for World Peace and Unification USA) has filed a suit alleging unauthorized use of a registered trademark against  The World Peace and Unification Sanctuary in Newfoundland, Pennsylvania ("Sanctuary Church").  According to a Unification Church press release:

In light of the recent media attention surrounding Sanctuary Church, public concern regarding the political views of this organization, and public brand confusion, Family Federation has made the difficult decision to pursue litigation to protect the legacy of its founders, the Reverend Sun Myung Moon and Dr. Hak Ja Han Moon.

As reported by The Blaze earlier this month, the founder of the Sanctuary Church is Hyung Jin Sean Moon, the son of the late Rev. Sun Myung Moon who founded the Unification Church in the 1950s. Hyung has been labeled an anti-LGBT cult leader by the Southern Poverty Law Center. Earlier this year, Sanctuary Church sponsored a service at which hundreds of members, some holding unloaded AR-15 rifles, exchanged wedding vows.  They see the AR-15 as symbolizing the "rod of iron" in the Book of Revelation.

Suit Challenges City Council Opening Meetings With Lord's Prayer

The Freedom From Religion Foundation filed a lawsuit this week in a West Virginia federal district court to stop the Parkersburg, West Virginia City Council from regularly opening its meetings with the recitation of the Lord's Prayer.  The complaint (full text) in Cobranchi v. The City of Parkersburg, (D WV, filed 7/30/2018), seeks declaratory and injunctive relief, contending that the prayer practice violates plaintiffs' 1st and 14th Amendment rights. FFRF issued a press release announcing the filing of the lawsuit.

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.