New York State Moves On Clergy Sex Abuse

Washington Post yesterday reported:

The New York attorney general’s office has issued subpoenas to every Catholic diocese in the state, becoming the latest U.S. state to embark on an expansive investigation of sex crimes committed and covered up by Catholic priests....

After New York’s subpoenas were issued, and first reported by the Associated Press on Thursday, New Jersey quickly followed, announcing a criminal task force focused on investigating sexual abuse by Catholic clergy. New Mexico launched an investigation this week, and Nebraska and Missouri have inquiries underway.

New York's attorney general yesterday also announced the creation of a  clergy abuse hotline and an online complaint form. All of this activity follows on a much publicized Pennsylvania grand jury report on clergy sex abuse. (See prior posting.)

India's Supreme Court Legalizes Consensual Homosexual Relations

In four separate opinions spanning 493 pages, India's Supreme Court yesterday struck down Section 377 of the India Penal Code insofar as it bans consensual homosexual relationships. In Johar v. Union of India, (India Sup. Ct., Sept. 6, 2018), Justice Misra wrote:

Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution.

CNN reports on the decision.

Dramatic Slowdown In Approval of Refugee Status For Iranian Christians

Yesterday's Los Angeles Times reports on the massive slowdown in U.S. approvals of refugee status for Iranian Christians and other Iranian religious minorities (such as Mandaeans) who are applying under the Lautenberg-Specter program. The slowdown began in late 2016. In the first quarter of fiscal 2018, only 29 Iranians were admitted under the program, compared to 1,061 in the first quarter of 2017.  Under the program, refugees with a U.S. sponsor travel to Vienna where they typically have encountered only a 3 to 6 month wait. the State Department says the slowdown stems from enhanced security check procedures apparently instituted under the Obama administration.  In July in Doe v. Nielsen, (ND CA, July 10, 2018), a California federal district court ordered the Department of Homeland Security to provide the reasons for denial of their applications to 87 Iranian refugees in Austria.

Amish Couple Sue Seeking Exemption From Photo Requirement To Get Permanent U.S. Residency

AP reports that an Old Order Amish couple filed suit yesterday in an Indiana federal district court challenging the federal government's refusal to grant permanent residency to the wife--a Canadian-- unless the husband and wife furnish photos of themselves.  The couple has refused because of their religious belief that photos are graven images prohibited by the Second Commandment. The couple wed in 2014 after the husband's first wife died. They live with their 13 children in an Amish farming community in southern Indiana. They claim that the government's refusal to accommodate their religious beliefs violate their 1st and 5th Amendment rights. [Thanks to Tom Rutledge for the lead.]

3rd Circuit Will Not Adjudicate Pastor's Breach of Contract Claim

In Lee v. Sixth Mount Zion Baptist Church of Pittsburgh, (3d Cir., Sept. 5, 2018), the U.S. 3rd Circuit Court of Appeals refused to adjudicate a terminated minister's breach of employment contract claim, saying in part:

The Church argues that Lee materially breached the Agreement by failing to provide adequate spiritual leadership, as reflected in decreased church contributions and attendance during Lee’s tenure....

While the amount of church contributions and members is a matter of arithmetic, assessing Lee’s role, if any, in causing decreased giving and reduced membership in the Church requires a determination of what constitutes adequate spiritual leadership and how that translates into donations and attendance—questions that would impermissibly entangle the court in religious governance and doctrine prohibited by the Establishment Clause....

Moreover, parsing the precise reasons for Lee’s termination is akin to determining whether a church’s proffered religious-based reason for discharging a church leader is mere pretext, an inquiry the Supreme Court has explicitly said is forbidden by the First Amendment’s ministerial exception. Hosanna-Tabor....

Becket Fund issued a press release announcing the decision. Pittsburgh Post Gazette reports on the decision.

Senate Passes Act Protecting Religiously Affiliated Community Centers

The U.S. Senate yesterday passed by unanimous consent S. 994: Protecting Religiously Affiliated Institutions Act of 2018 (full text). The bill expands the definition of "religious real property" in 18 USC Sec. 247 to include real property owned or leased by a nonprofit, religiously affiliated organization, such as religiously affiliated community centers.  It also expands the kind of damage, destruction or threats to religious real property that are prohibited to include obstructing a person's free exercise of religious beliefs by threats of force against religious real property. This is intended to cover bomb threats to religiously affiliated organizations such as the wave of bomb threats in 2017 directed at Jewish Community Centers.  The bill also increases punishment in certain cases.  The bill now goes to the House of Representatives which has already passed HR 1730 which is virtually identical to S. 994. AJC issued a press release applauding the Senate's action.

Parents Charged In Death of Son From Forced Religious Fast

In Wisconsin, the parents of two boys were charged with neglect causing the death of one son and great bodily harm to the other resulting from a religious fast that lasted a month and a half.  Wisconsin State Journal reports that the parents who immigrated from Nigeria 12 years ago locked their 15 and 11 year old sons in the house and allowed them only water while they were waiting for a blessing from God. The 15-year old died last Friday, the day which, according to the father, the fast was to end.

Spanish Case Charges Actor's Facebook Post Violated Blasphemy Law

El Pais yesterday reported on a high profile battle in Spain over a prosecution under the country's blasphemy law:

A Madrid court has issued an arrest warrant for Spanish actor and activist Willy Toledo after he twice failed to show up in court, where he had been summonsed after a lawyers’ association accused him of offending religious sentiments.

The Spanish Association of Christian Lawyers filed a complaint with the public prosecutor after Toledo published a post on Facebook in 2017, in which he expressed his indignation over a court probe into three women in Seville who, in 2014, paraded a large model of a vagina through the city streets, in an imitation of a religious procession, dubbing it the “coño insumiso,” or “Insubordinate pussy.”

Homeless People May Not Be Prosecuted For Sleeping Outdoors When Only Option Is Religious Shelter

In Martin v. City of Boise, (9th Cir., Sept. 4, 2018), the U.S. 9th Circuit Court of Appeals held that the ban on cruel and unusual punishment in the 8th Amendment bars a city from criminalizing sleeping outdoors on public property when homeless people have no option to sleep indoors, including where their access to a shelter is conditioned on their participating in religious programs.  Two of the city's three shelters are run by Christian organizations.  The court concluded that

River of Life permits individuals to remain at the shelter after 17 days in the Emergency Services Program only on the condition that they become part of the New Life Discipleship program, which has a mandatory religious focus.... There are also facts in dispute concerning whether the Emergency Services Program itself has a religious component....  A city cannot, via the threat of prosecution, coerce an individual to attend religion-based treatment programs consistently with the Establishment Clause of the First Amendment.... Yet at the conclusion of a 17-day stay at River of Life, or a 30-day stay at City Light, an individual may be forced to choose between sleeping outside on nights when Sanctuary is full (and risking arrest under the ordinances), or enrolling in BRM programming that is antithetical to his or her religious beliefs.

AP reports on the decision.

Recent Articles of Interest

From SSRN:

• Brendan T. Beery, Prophylactic Free Exercise: The First Amendment and Religion in a Post-Kennedy World, (Albany Law Review, Forthcoming).
• Jaclyn L. Neo, Regulation of Religious Communities in a Multicultural Polity, (Forthcoming in Rex Ahdar (ed.), Research Handbook on Law and Religion (Edward Elgar, 2018)).
• Jennifer Koshan & Jonnette Watson Hamilton, Alberta v. Hutterian Brethren of Wilson Colony (Women's Court of Canada), ((2018) 30(2) Canadian Journal of Women and the Law).
• Catherine Hardee, Who's Causing the Harm, (Kentucky Law Journal, Forthcoming).
• Tamir Moustafa, Constituting Religion: Islam, Liberal Rights, and the Malaysian State, (Cambridge University Press, 2018).
• Peter Margulies, The Travel Ban Decision and the Twilight of Judicial Craft: Taking Statutory Context Seriously, (Roger Williams Univ. Legal Studies Paper No. 183 (2018).
• Kyriaki Topidi, Faith-Based Education and Equality: Towards an Education of Prejudice? - The Example of Faith Schools in England, (July 30, 2018).
• Caitlin Carlson & Hayley Rousselle, Report and Repeat: Investigating Facebook's Hate Speech Removal Process, (April 1, 2018).
• Vivien Chen, Law and Society in the Evolution of Malaysia's Capital Market Regulation, (Asian Journal of Law and Society, Forthcoming).
• Vivian Grosswald Curran, The Foreign Sovereign Immunities Act's Evolving Genocide Exception, (UCLA Journal of International Law and Foreign Affairs, Vol. 23, 2019, Forthcoming).

From SmartCILP:

• Martina E. Cartwright, Book, Chapter, and Verse: The Rise and Rise of the Freedom of Conscience Movement Post-Windsor and Obergefell, [Abstract], 23 Cardozo Journal of Law & Gender 39-106 (2016-2017).

Scottish Appeals Court Says Government Did Not Adequately Consider Refugees' Claim of Conversion To Christianity

In TF and MA v. Secretary of State for the Home Department, (Scot. Ct. Sess., Aug. 30, 2018), Scotland's Inner House, Court of Session, held that the Secretary of State and appellate tribunals had failed to adequately consider certain evidence that Iranian asylum seekers had genuinely converted to Christianity after leaving Iran. All the parties agreed that individuals who converted from Islam to Christianity face a risk of persecution of forced to return to Iran. At issue however was:

the status of evidence from church leaders (or others holding positions of responsibility within a church) about the conduct of a person who has begun the process of admission into the church and as to the sincerity of his conversion to Christianity; as to the weight to be given to such evidence; and whether the usefulness of such evidence as a guide to the genuineness of the sur place conversion is undermined by findings that, in relation to other matters, the appellant, the applicant for asylum, has given evidence which is untrue or unreliable and/or may be said to undermine his basic credibility.

Law & Religion UK has more on the decision.

Recent Prisoner Free Exercise Cases

In Streater v. Allen, 2018 U.S. Dist. LEXIS 145087 (ED TX, Aug. 24, 2018), a Texas federal district court dismissed an inmate's complaint that during a two-week lock down he was unable to attend religious services and was denied hot meals for at least a week.

In Ramos v. Malloy, 2018 U.S. Dist. LEXIS 145147 (D CT, Aug. 27, 2018), a Connecticut federal district court dismissed, with leave to file an amended complaint, an inmate's lawsuit claiming he did not receive a book about religion, even though copies were mailed to him twice.

In Cordero v. Kelley, 2018 U.S. Dist. LEXIS 145804 (D NJ, Aug. 22, 2018), a New Jersey federal district court allowed an inmate to move ahead with claims that religious tracts he purchased to give his family and friends were confiscated.

In Buie v. Mitchell, 2018 U.S. Dist. LEXIS 146159 (ED WI, Aug. 28, 2018), a Wisconsin federal district court dismissed an inmate's lawsuit that complained about the manner of preparation of certain kosher meals.

In Guilliot v. Harmon, 2018 U.S. Dist. LEXIS 145095 (ND TX, Aug. 27, 2018),  Texas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 146273, July 25, 2018) and permitted a Wiccan inmate who was serving a sentence for receiving child pornography to move ahead with his claim that his rights under RFRA were violated when he was denied access to a Rider-Waite Tarot deck — a tarot deck that includes artistic depictions of non-sexualized nudity.

In Galvan v. Sterrett, 2018 U.S. Dist. LEXIS 146339 (SD IL, Aug. 28, 2018), an Illinois federal district court allowed a Catholic inmate to move ahead with his complaint that his permission to attend Protestant religious services as well as Catholic ones was revoked.

In Gaston v. Marean, 2018 U.S. Dist. LEXIS 146578 (ED CA, Aug. 28, 2018), a California federal district court held that a Ratafarian inmate's additional assertions regarding the impact of cutting off his dreadlocks would allege a substantial burden on religious exercise, contrary to a magistrate's original conclusion (see prior posting). Thus the court provided the opportunity to file an amended complaint.

In Loufer v. Carr, 2018 U.S. Dist. LEXIS 147006 (D KA, Aug. 29, 2018), a Kansas federal district court gave an inmate 30 days to show why his sketchy complaint regarding a religious diet should not be dismissed.

In Masek v. Chastain, 2018 U.S. Dist. LEXIS 148013 (ED MO, Aug. 30, 2018), a Missouri federal district court dismissed a complaint by plaintiff, who is civilly detained after being found not guilty by reason of insanity for the murder of his father, that he was deprived of a copy of the Bible for one week.

In Wright v. Lassiter, 2018 U.S. Dist. LEXIS 148188 (WD NC, Aug. 30, 2018), a North Carolina federal district court allowed a Rastafarian inmate to move ahead with claims of confiscation of religious books and items, and forced removal from a vegan diet.

In Helm v. Allen, 2018 U.S. Dist. LEXIS 149080 (WD KY, Aug. 30, 2018), a Kentucky federal district court allowed an inmate to move ahead with his complaint that he was denied a Catholic Bible and mail from the Dtnamic Catholic Institute.

Court Rejects Claim That Church Board Improperly Appointed Interim Pastor

In Leggett v. Moore, 2018 IL App (1st) 171101-U (IL App., Aug. 28, 2018), an Illinois appellate court held that the First Amendment does not prevent a court from deciding whether a church has violated it own bylaws when that does not raise issues of church doctrine. Plaintiffs alleged that True Zion church formed a new board of directors without complying with church bylaws, and improperly selected a new interim pastor. They contend that the church overseer was the person entitled to appoint an interim pastor, even though there is no mention of this in the bylaws. The court dismissed their claim, holding that "the duly elected board of directors affirmed the church bylaws and ratified the actions of the interim pastor during meetings at which plaintiffs attended but abstained from voting...."

7 Indicted For Fraud In Payments for Internet Equipment For Yeshivas

Last Wednesday, the U.S.. Attorney's Office for the Southern District of New York announced the indictment (full text) of seven individuals on wire fraud and conspiracy to commit wire fraud charges growing out of federal payments intended to fund computer equipment for Orthodox Jewish yeshivas. The indictment charges that for many years, defendants billed the federal E-Rate program for millions of dollars in equipment that was not furnished, or was furnished at inflated prices and often was not needed.  The federal program is intended to provide schools and libraries serving economically disadvantaged children with internet access. According to a Forward report on the indictment: "Some of the internet services paid for by E-Rate had been requested by schools that ban internet use for religious reasons."

Street Preacher's Disturbing-the-Peace Citation Was Valid

In Roy v. City of Monroe, (WD LA, Aug. 29, 2018), a Louisiana federal district court dismissed a street preacher's suit challenging the constitutionality of the city of Monroe's disturbing-the-peace ordinance and the citation he received for violating it. The court described the conduct that led to the citation and summons:

The Corner Bar is known as a gathering spot for homosexuals. Roy believes that homosexuality is a sin. He preaches against homosexuality, as well as drinking alcohol, the use of drugs, fornication, and other topics.... On this night, they gathered at a telephone pole across the street from the Corner Bar. Roy was wearing an orange jump suit to demonstrate that he is a “prisoner of Christ” and to pose the questions to others, “Whose prisoner are you?”. At various times, he was also carrying a sixfoot cross made of cedar 4 x 4s. He normally approaches people and says something short to “startle” them or “stop” them. He cannot “afford to” be concerned about other people’s feelings because it might alter his message. Roy tells people that they are “going to Hell,” uses the terms “homosexual” and “whore,” and will tell people that “their father is the devil.” He raises his voice, shouts, and uses “strong Biblical language” to convey his message.

RLUIPA Challenges To Zoning Decision On Catholic Church Must Go To Trial

In Roman Catholic Archdiocese of Kansas City in Kansas v. City of Mission Woods, (D KA, Aug. 30, 2018), a Kansas federal district court refused to grant summary judgement for either party on most of the RLUIPA claims by a Catholic church that sought to convert a single family house into a meeting house. The city of Mission Woods had denied zoning approval for the project.

Protestant Navy Chaplains Lose Discrimination Lawsuit

In In re Navy Chaplaincy, (D DC, Aug. 30, 2018), a D.C. federal district court granted summary judgment for the U.S..Navy in a long-running suit by non-liturgical Protestant Navy chaplains alleging discrimination against them. The court summarized the facts and its holding:

Plaintiffs’ primary claim is that, until 2002, the Navy maintained an unconstitutional policy of placing at least one Roman Catholic chaplain on every selection board, which resulted in Catholic chaplains being promoted at a disproportionately high rate compared to other religious groups. Plaintiffs also challenge a host of other allegedly unconstitutional selection-board policies and procedures—some of which, plaintiffs claim, continue to this day. Finally, plaintiffs challenge a statute that privileges selection-board deliberations from disclosure in litigation, arguing that it is unconstitutional as applied to their case because it denies them access to information that they need to prove their constitutional claims. To redress these wrongs, plaintiffs—each of whom was either passed over for promotion or selected for early retirement by a board that was allegedly tainted by one or more of the challenged procedures—seek an order directing the Navy to reinstate them to active duty, if necessary, and to convene new, properly constituted selection boards to reconsider the personnel actions taken against them....

To a considerable extent, the result in this case is dictated by prior rulings.... Consequently, there is little left to do here but to apply those standards ... which, as explained below, does not even come close to showing the degree of discrimination required for plaintiffs’ challenges to succeed. Likewise, this Court has already twice considered and twice rejected plaintiffs’ constitutional challenge to the statutory privilege for selection-board proceedings...

Supreme Court Refuses Emergency Injunction In Catholic Social Services Foster Care Case

In a one-sentence order yesterday, the U.S. Supreme Court refused to grant an emergency injunction in Fulton v. Philadelphia.  In the case, a Pennsylvania federal district court rejected Catholic Social Services challenges to Philadelphia' requirement that it not discriminate against same-sex couples in foster care placement. Catholic Social Services wanted the Supreme Court to allow it to continue foster care placements while it appealed the city's intake freeze to the 3rd Circuit. Justices Thomas, Alito and Gorsuch would have granted the injunction. SCOTUSblog reports on the court's action

Excluding Non-Theists As Legislative Guest Chaplains Violates Establishment Clause

In Fields v. Speaker of the Pennsylvania House of Representatives, (MD PA, Aug. 29, 2018), a Pennsylvania federal district court held that the guest chaplain policy of Pennsylvania's House of Representatives violates the Establishment Clause.  The legislative chamber's policy allows invocations to be given only by  individuals who adhere to, or are members of a religious organization that subscribes to, a belief in “God” or a “divine” or “higher” power. The House Speaker and Parliamentarian refused to permit a non-theist to serve as a guest chaplain to deliver an invocation. The court said in part:

That history has tolerated the natural prevalence of theistic legislative prayer is hardly evidence that the Framers would abide deliberate and categorical exclusion of nontheists. Accordingly, the House’s prayer practice finds no refuge in history and tradition....

In light of this nation’s vastly diverse religious tapestry, there is no justification to sanction government’s establishment of a category of favored religions—like monotheistic or theistic faiths—through legislative prayer.

The court also held:

The House’s pre-2017 opening invocation practice, which coerces visitors to stand during the opening prayer and thereby participate in a religious exercise, likewise offends the Establishment Clause.

Americans United issued a press release announcing the decision.

Court Will Not Order Group's Christian Flag Displayed On City Flag Pole

In Shurtleff v. City of Boston, (D MA, Aug. 29, 2018), a Massachusetts federal district court refused to grant a preliminary injunction against the city's policy of refusing to fly non-secular flags from City Hall flagpoles.  Plaintiffs sought to fly a "Christian flag” from the city's pole in conjunction with a Constitution Day and Citizenship Day event.  Rejecting plaintiffs' free speech argument, the court said in part:

If the flags are government speech, as Defendants assert, “then the Free Speech Clause has no application” and the City may “select the views that it wants to express.” ... In contrast, if the flags are private speech displayed in a limited public forum, as Plaintiffs argue, the restriction on non-secular flags must be reasonable and viewpoint neutral.... This Court concludes that the selection and display of the flags on the City flagpole constitute government speech. Moreover, even if they did not constitute government speech, the Court finds that the City’s restriction on non-secular flags satisfies the constitutional requirements for limitations on speech in a limited public forum....

The City’s policy is ... reasonable based on the City’s interest in avoiding the appearance of endorsing a particular religion and a consequential violation of the Establishment Clause.... Moreover, ... [in suggesting] the opportunity to conduct their event on City Hall Plaza, fly a secular flag on the City flagpole or display the Christian flag on City Hall Plaza but not on the City flagpole, the City has demonstrated reasonableness and that it does not seek to silence Plaintiffs. 

The court also rejected Establishment Clause and Equal Protection challenges. Boston Globe reports on the decision.

UN Report Says Investigate Myanmar Generals for Genocide

On Monday, the United Nations Independent International Fact-Finding Mission on Myanmar released a Report (full text) recommending that Myanmar’s top military generals must be investigated for genocide, crimes against humanity, and war crimes directed at the minority Rohingya people.  CNN has more on the report.

Settlement Reached In D.C. Mikveh Voyeurism Case

As reported by yesterday's Washington Post, a $14.25 million settlement has been reached in the class action lawsuit growing out of the secret taping by Rabbi Barry Freundel of women using the mikveh (ritual bath) affiliated with Freundel's synagogue. The spying took place between 2005 and 2014. Under the settlement, which still must be approved by the court, each woman who was videotaped will receive at least $25,000. Other women who used the mikvah may receive $2.500. Defendants' insurance company will pay the settlement. Freundel was sentenced in 2015 to six and one-half years in prison.

Amicus Briefs Filed With SCOTUS In Case of Funeral Home's Firing of Transgender Employee

Several amicus briefs have been filed with the U.S. Supreme Court urging the Court to grant certiorari in R.G. & G.R. Harris Funeral Homes Inc. v. EEOC. Links to the briefs are available at SCOTUSblog.  In the case, the U.S. 6th Circuit Court of Appeals, rejecting the employer's religious freedom defense, held that a Michigan funeral home violated Title VII when it fired a transgender employee. (See prior posting.) Townhall has more on these developments.

8th Circuit: Satanic Temple Member Lacks Standing To Challenge Abortion Restrictions

In Satanic Temple v. Parson, (8th Cir., Aug. 28, 2018), the U.S. 8th Circuit Court of Appeals affirmed the dismissal (see prior posting) of a challenge to Missouri's abortion restrictions. The court said in part:

Mary Doe is a member of The Satanic Temple and a resident of the state of Missouri. After becoming pregnant, she sought an abortion in St. Louis, Missouri. She complied with certain state-mandated procedures, which the complaint alleges constituted direct and unwelcome personal contact with religion, in violation of the Free Exercise and Establishment Clauses. After receiving the abortion, she filed this lawsuit....

Here, Mary Doe was not pregnant at the date the action was initiated and seeks only prospective relief.... Mary Doe therefore lacks constitutional standing. Additionally, although “[p]regnancy provides a classic justification for a conclusion of nonmootness,” the doctrine does not apply here because she did not first establish standing.

Courthouse News Service reports on the decision.

8th Circuit Embraces Historical Practices Test In Upholding "In God We Trust" on Currency

In New Doe Child #1 v. United States, (8th Cir., Aug. 28, 2018), the U.S. 8th Circuit Court of Appeals rejected a constitutional challenge to the placement of the motto "In God We Trust" on U.S. coins and currency.  While the result is consistent with that of numerous other circuits, the analysis set out by the majority opinion is of particular interest. Judge Gruender, writing for himself and Judge Beam, takes the position that the Supreme Court's decision in Town of
Greece v. Galloway  signaled a "'major doctrinal shift' in Establishment Clause jurisprudence," explaining:

In Galloway, the Supreme Court offered an unequivocal directive: “[T]he Establishment Clause must be interpreted by reference to historical practices and understandings.”...[H]istorical practices often reveal what the Establishment Clause was originally understood to permit, while attention to coercion highlights what it has long been understood to prohibit....

... [H]istorical practices confirm that the Establishment Clause does not require courts to purge the Government of all religious reflection or to “evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage.”....

 Here, we recognize that convenience may lead some Plaintiffs to carry cash, but nothing compels them to assert their trust in God. Certainly no “reasonable observer” would think that the Government is attempting to force citizens to express trust in God with every monetary transaction.... Indeed, the core of the Plaintiffs’ argument is that they are continually confronted with “what they feel is an offensive religious message.” But Galloway makes clear that “[o]ffense . . . does not equate to coercion.”

Judge Kelly's concurring opinion argues that Galloway was merely a clarification of exiting Establishment Clause doctrine, not a sea change in it; but that exiting Supreme Court case law upholds the motto.

Judge Gruender, in portions of his opinion joined by all 3 judges on the panel, went on to reject plaintiffs' free speech, free exercise, RFRA and equal protection challenges.  In considering plaintiffs' RFRA challenge, the court held that plaintiffs have failed to allege a "substantial burden" on their exercise of religion, saying in part:

Here, the complaint alleges that the cost of the Plaintiffs’ adherence to their religious convictions is “relinquishing the convenience of carrying the nation’s money.” While cash may be a convenient means of participating in the economy, there are many alternatives that would not violate the Plaintiffs’ stated beliefs....

We recognize that, in limited circumstances, there may not be a viable cash alternative. But the complaint does not allege that the Plaintiffs are unable to make necessary or even regular purchases, and we do not think that difficulty buying “a popsicle from the neighborhood ice cream truck” or using a coin-operated laundry machine is what the Supreme Court had in mind when it said that RFRA protects against the denial of “full participation in the economic life of the Nation.” See Hobby Lobby, 134 S. Ct. at 2775-76, 2779, 2783.

Becket Fund issued a press release announcing the decision. Reuters reports on the decision.

What Else Did President Trump Tell Evangelical Leaders?

As previously reported, yesterday President Trump spoke to evangelical leaders at a dinner in the State Dining Room of the White House. Subsequently the White House posted a transcript of the President's remarks.  It appears to be a transcript of the remarks as delivered, not merely as prepared, since audience applause is noted a various points.  However, CNN today reports on other quotations which it says were taken from a recording of the President's "closed-door remarks" in the State Dining Room. Apparently these preceded or followed the remarks posted by the White House.  Here are the quotes as reported by CNN:

This November 6 election is very much a referendum on not only me, it's a referendum on your religion, it's a referendum on free speech and the First Amendment. It's a referendum on so much.

It's not a question of like or dislike, it's a question that they will overturn everything that we've done and they will do it quickly and violently. And violently. There is violence. When you look at Antifa -- these are violent people. 

You have tremendous power. You were saying, in this room, you have people who preach to almost 200 million people. Depending on which Sunday we're talking about. 

You have to hopefully get out and get people to support us.  If you don't, that will be the beginning of ending everything that you've gotten.  The polls might be good, but a lot of them say they are going to vote in 2020, but they're not going to vote if I'm not on a ballot.  I think we're doing well, I think we're popular, but there's a real question as to whether people are going to vote if I'm not on the ballot. And I'm not on the ballot.

I just ask you to go out and make sure all of your people vote. Because if they don't -- it's November 6 -- if they don't vote, we're going to have a miserable two years and we're going to have, frankly, a very hard period of time.  You're one election away from losing everything that you've gotten.  Little thing: Merry Christmas, right? You couldn't say 'Merry Christmas.'

White House Dinner With Evangelicals

AP reports on a dinner at the White House last night with evangelical Christian leaders:

President Donald Trump says the government’s “attacks on communities of faith” are over as he hosts a dinner celebrating evangelical Christian leaders at the White House.

Trump says the government in recent years has tried to undermine religious freedom, but those days are over.

He’s pointing to efforts by his administration to secure the release of imprisoned pastors and limit federal funding for abortion providers.

UPDATE: Here is the full text of the President's remarks.

Suit Challenges Ban On On Town's Rental of Space For Worship Services

A suit was filed yesterday in a South Carolina federal district court against Edisto Beach challenging the Town's rule change that prohibits renting space in the town's Civic Center for religious worship services.  The complaint (full text) in Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, (D SC, filed 8/27/2018), contends that the ban violates the First and 14rh Amendments.  ADF issued a press release announcing the filing of the lawsuit.

Archbishop Calls For Pope's Resignation Over Cover-Up of Abuse

In a letter (full text) dated August 22, Archbishop Carlo Maria Viganò, who served as apostolic nuncio in Washington D.C. from 2011 to 2016, has leveled charges against senior clerics and Pope Francis himself in the cover-up of sex abuse charges against Archbishop Theodore McCarrick. (See prior related posting.) As reported by the National Catholic Register:

In an extraordinary 11-page written testament, a former apostolic nuncio to the United States has accused several senior prelates of complicity in covering up Archbishop Theodore McCarrick’s allegations of sexual abuse, and has claimed that Pope Francis knew about sanctions imposed on then-Cardinal McCarrick by Pope Benedict XVI but chose to repeal them.

In the letter, Archbishop Vigano concludes:

Pope Francis must be the first to set a good example for cardinals and bishops who covered up McCarrick's abuses and resign along with all of them.

Burning In Effigy Does Not Violate Ban In India On Mock Funerals

In Jadaun v. State of Upper Pradesh, (Allahabad High Court, Aug. 9, 2018), a trial court in India held that the burning in effigy of a living person by protesters does not violate the statutory ban on participation in a mock funeral ceremony.  LiveLaw reports on the decision.

Recent Articles of Interest

From SSRN:

• Tihamer Toth, Competition and Democracy, (Versenytükör, 2017. V. issue, pp. 68-82).
• Ralph R. A. Janik, How Many Divisions Does the European Court of Human Rights Have? Compliance and Legitimacy in Times of Crisis, (20 Austrian Review of International and European Law (2018/2015) 125).
• Charles A. Sullivan, Clergy Contracts, (Employee Rights and Employment Policy Journal, Forthcoming).
• David W. Opderbeck, Christian Thought and Property Law, (Forthcoming, Christian Thought and Private Law, Cambridge University Press).
• Phil Lord, Scientology's Legal System, (August 15, 2018).
• Richard Albert, David Landau, Pietro Faraguna & Šimon Drugda, The I·CONnect-Clough Center 2017 Global Review of Constitutional Law, (Published by the Clough Center for the Study of Constitutional Democracy (2018)).
• Dara E. Purvis, The Constitutionalization of Fatherhood, (August 15, 2018).
• Erica Goldberg, 'Good Orthodoxy' and the Legacy of Barnette: FIU College of Law Symposium on the 75th Anniversary of West Virginia V. Barnette, (Forthcoming, FIU Law Review).
• Ihsan Yilmaz & Zahid Shahab Ahmed, Islam and Women Rights in Pakistan, (August 9, 2018).

From SmartCILP:

• Leonard Hammer, Cultural Heritage Protection and Sacred Spaces: Considering Alternative Approaches from Within the Human Rights Framework, 49 Columbia Human Rights Law Review 73-113 (2018).
• Allan W. Vestal, "In the Name of Heaven, Don't Force Men to Hear Prayers": Religious Liberty and the Constitution of Iowa, 66 Drake Law Review 355-451 (2018).
• Chelsea M. Baltes, Book Note. God and the Illegal Alien, United States Immigration Law and a Theology of Politics by Robert W. Heimburger, 32 Georgetown Immigration Law Journal 237-245 (2018).
• Perspectives: How Cultural and Religious Diversity Affect Alternative Dispute Resolution. Franco Shapiro, moderator; Marcelo Rosadilla, Sukhsimranjit Singh, Marcio Vasconcellos, panelists, 18 Pepperdine Dispute Resolution Law Journal 497-508 (2018).
• Mark Strasser, Free Exercise and Comer: Robust Entrenchment or Simply More of a Muddle?, [Abstract], 52 University of Richmond Law Review 887-922 (2018).

Recent Prisoner Free Exercise Cases

In Saif'ullah v. Cruzen, Smith v. Cruzen, and Smith v Albritton  (9th Cir., Aug. 22, 2018), the 9th Circuit, in separate opinions, affirmed the dismissal of claims related to a prison's interruption of congregational prayer.

In Pevia v. Bishop, 2018 U.S. Dist. LEXIS 139541 (D MD, Aug. 16, 2018), a Maryland federal district court dismissed a Native American inmate's complaint that while he was in maximum security he was not able to attend religious services.

In Blair v. Raemisch, 2018 U.S. Dist. LEXIS 138796 (D CO, Aug. 16, 2018), a Colorado federal district court adopted in part a magistrate's recommendations (2018 U.S. Dist. LEXIS 139806, July 26, 2018) and dismissed an inmate's complaint about the religious vegan diet that was being served.

In Anderson v. Russell, 2018 U.S. Dist. LEXIS 141296 (ED WA, Aug. 20, 2018), a Washington federal district court dismissed a complaint by a Christian inmate whose requests to receive special Passover meals were denied.

In Jones v. Malin, 2018 U.S. Dist. LEXIS 141892 (SD NY, Aug. 21, 2018),  New York federal district court refused to grant summary judgment to defendants in an inmate's suit for monetary damages for Sing Sing's two month interruption in separate Shi'a Jumu'ah services.

In Tyler v. Ray, 2018 U.S. Dist. LEXIS 142354 (D SC, Aug. 22, 2018) a South Carolina federal district court adopted a magistrate's report (2018 U.S. Dist. LEXIS 142732, July 26, 2018) and dismissed a complaint by a Jehovah's Witness civil detainee that he was not permitted to take his Bible and literature with him from his cell to recreation, and that there were limits on his ability to meet with outside religious volunteers and to receive books. UPDATE: The court's amended order is at 2018 U.S. Dist. LEXIS 155969, Sept. 12, 2018.

In Allen v. Echele, 2018 U.S. Dist. LEXIS 143953 (ED MO, Aug. 23, 2018), a Missouri federal district court dismissed a pretrial detainee's complaint that he was denied a kosher diet.

Irish State Funded Catholic Schools Can No Longer Admit With Religious Preferences

CNN today reports on the change in school admission policies in Ireland that take effect this school year.  Some 90% of state-funded primary schools in Ireland are Catholic.  In the past, they have given priority to children who have been baptized as Catholic.  This has led some parents to have their children baptized only so they can be admitted into a high quality school.  In July, the Irish parliament passed a law prohibiting this favoritism

Iowa Pharmacy Board's Refusal To Recommend Cannabis Exception Is Challenged

A petition (full text) for review of a July 18 decision by the Iowa Board of Pharmacy has been filed in an Iowa state trial court.  In Olsen v. Iowa Board of Pharmacy, (IA Dist. Ct., filed 8/15/2018), petitioner contends that the Pharmacy Board abused its discretion when it refused to recommend to the state legislature that an exemption be added to the state drug laws to exempt religious use of cannabis by Rastafari.  The Board took the position that it lacks expertise to evaluate the use of controlled substances for religious purposes. A number of posts on the issue are at Carl Olsen's Blog.

Washington's Work-Study Program Challenged Over Non-Sectarian Employer Requirement

A suit was filed last week in federal district court in the state of Washington challenging Washington's structuring of its Work-Study program.  The Program provides financial aid to college students by paying part of a student's salary when the student is working for a participating employer, usually in a field related to the student's studies. Eligible employers, and jobs themselves, must be non-sectarian.  The complaint (full text) in Summit Christian Academy v. Meotti, (WD WA, filed 8/14/2018) contends that excluding religious employers and sectarian work violates the free exercise clause, the equal protection clause and the Establishment Clause. Institute for Justice issued a press release announcing the filing of the lawsuit.

Arkansas Commission Refuses To Dismiss Complaint Against Anti-Death Penalty Judge

In an Aug. 20 Order (full text begins at pg. 5) the Arkansas Judicial Discipline and Disability Commission refused to dismiss Allegations (full text) filed in June against Circuit Court Judge Wendell Griffen complaining about his granting of a temporary restraining order barring use for executions of vecuronium bromide sold to the state. (Background).  Griffen is charged with violating the Judicial Canon requiring impartiality through his participation in religious anti-death penalty rallies and vigils. Magnolia Banner News reports on the Commission's order.

Judge Authorizes Shut-Down of Cannabis-Based Church

A Riverside, California trial court judge last week authorized the city of Jurupa Valley to close down the Vault Church of Open Faith, a cannabis-based church that lists the prices for various kinds of marijuana online. According to the Press-Enterprise, the Vault's lead minister,  Gilbert Aguirre, who has no formal religious training typically leads services which often include smoking or eating marijuana products. Jurupa Valley bans marijuana businesses of all kinds.

Muslim School Sues City Over Harassment At City Pool

A Muslim school in Wilmington, Delaware has filed suit against the city alleging religious discrimination against students in the school's summer day camp by personnel at the city's swimming pool.  According to yesterday's Delaware Public Media, pool workers harassed pre-school students in the summer program of Darul Amaanah Academy because of the students' religious attire. Pool workers say they were enforcing a no-cotton policy, but parents say that children were traumatized.

Suit Challenges Exclusion of Sectarian Schools From Maine's High School Tuition Program

In Maine, small school districts that do not operate their own high schools or contract with a specific school for educational purposes, pay tuition for residents to attend a high school elsewhere in the state.  However state law bars paying tuition for students to attend sectarian schools.  On Monday a suit was filed challenging that exclusion.  The complaint (full text) in Carson v. Hasson, (D ME, filed 8/21/2018), alleges that this exclusion violates the 1st and 14th Amendments.  In a press release announcing the filing of the lawsuit, First Liberty described the claims:

By singling out religious schools, and religious schools only, for discrimination, Maine violates the religious freedom and equal protection guarantees of the U.S. Constitution. As the U.S. Supreme Court’s Chief Justice John Roberts wrote for a 7-2 majority in last year’s Trinity Lutheran Church v. Comer decision, excluding a church “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution…and cannot stand.” Armed with this recent decision, IJ and FLI’s clients intend to vindicate the principle that government programs cannot discriminate against religion.

Court Orders More Briefs On RFRA Defense By Peace Protesters

In an Order last week in United States v. Kelly, 2018 U.S. Dist. LEXIS 138195, (SD GA, Aug. 15, 2018), a Georgia federal magistrate judge instructed both sides to provide additional briefing on the "particularized issues raised by Defendants' RFRA defense" in the prosecution of peace activists for breaking into Naval Submarine Base Kings Bay. Defendants argue that their "symbolic disarmament" of nuclear weapons at the base was an exercise of their sincerely held Catholic beliefs.  In ordering additional briefs, the court said in part:

At the August 2, 2018 motions hearing, counsel for both the Government and Defendants represented to the Court that Defendants' RFRA claim as a defense to criminal prosecution was an issue of first impression and that the applicability of RFRA to federal criminal law was an open question.... Subsequent to the hearing, however, the Government filed Supplemental Briefing that acknowledged RFRA's applicability to criminal prosecutions and its availability as a defense.... The Government now contends that Defendants' actions ... were not religious in nature and ... even assuming they were, the Government contends it has a compelling interest in protecting Naval Submarine Base Kings Bay....

Brunswick News reports on the court's Order.

Open Meeting Lawsuit Filed Growing Out of Alleged Anti-Jewish Curricular Materials

Jewish News Syndicate reports on a taxpayer lawsuit filed last week in state court in Massachusetts growing out of an ongoing dispute over teaching materials used in the Newton school system.  Newton residents have contended that the schools are using anti-Jewish anti-Israel educational materials, including ones funded by the Saudi oil company ARAMCO and the government of Qatar. The lawsuit alleges violations of the state's open meeting laws, contending that month after month the minutes of the meetings of the Newton School Committee deliberately omit names and summaries of remarks by citizens who have appeared before the committee to complain about anti-Jewish materials and Islamic religious lessons.  Critics of the curriculum also urge the firing of the current school superintendent.

Switzerland Denies Citizenship To Muslim Couple For Their Rejection of Gender Equality

BBC News reported last week that Swiss authorities have denied the citizenship application of a Muslim couple who refused to shake hands with individuals of the opposite sex during their citizenship interview. To obtain citizenship, an applicant must be well integrated into the Swiss community and demonstrate an attachment to the country, its institutions and a respect for its legal order. According to the report:

Officials stressed they were not rejected based on their religion but for their lack of respect for gender equality.

[Thanks to Scott Mange for the lead.]

Conservative Christian Groups Oppose Arkansas Tort Reform Ballot Measure

AP reports that Arkansas' proposed constitutional amendment on tort reform (full text) is receiving surprising opposition from conservative Christian anti-abortion groups:

A Christian group has begun rallying churches and abortion opponents against the measure, saying that limiting damage awards in lawsuits sets an arbitrary value on human life, contrary to anti-abortion beliefs, and conflicts with biblical principles of justice and helping the poor....

The Family Council, which championed Arkansas’ ban on gay marriages, is organizing meetings with church leaders to call for the measure’s rejection.

“The Bible is full of references to justice, and [the proposal] creates an environment where the powerful can tip the scales of justice against everybody else, but especially the poor,” Jerry Cox, the Family Council’s head, said at a recent breakfast meeting with pastors.

Pastors were handed informational booklets emblazoned with the words “Don’t Put A Price Tag On Human Life.” Flyers left on each table offered attendees inserts for their church bulletins.

Court Says Religious Commitment To Climate Justice Prevails Over Historic Preservation Rules

According to the Keene Sentinel, last week a Massachusetts trial court judge ruled that a church's religious commitment to climate justice takes precedence over historic preservation rules:

A Massachusetts Superior Court judge last week ordered Bedford’s Historic District Commission to allow the First Parish Church to install solar panels on the roof of the sanctuary. In what could be a precedent-setting decision, the congregation can install panels to generate electricity in keeping with a principle of “climate justice.” John Gibbons, senior minister of the church, said in a press release, “This ruling makes it possible for us to give more than lip service to our religious values, to walk our talk and to live in greater harmony with the rhythms of nature.”

In other words, parishioners believed they needed to do something to cut carbon emissions to protect the earth. That principle of their faith overruled a strict adherence to preservation of the historic character of their 200-year-old building.

DC Circuit Remands Suit On Anti-Sharia Bus Ads

In American Freedom Defense Initiative v. Washington Metropolitan Area Transit Authority, (DC Cir., Aug. 17, 2018), the D.C. Circuit Court of Appeals remanded for further development of an argument based on a intervening Supreme Court decision a challenge to WMATA's guidelines on advertising that may be displayed on buses and in rail stations.  At issue is the constitutionality of a ban on "advertisements intended to influence members of the public regarding an issue on which there are varying opinions." AFDI wanted to rent space to display ads that

make the point that the First Amendment will not yield to Sharia adherent Islamists who want to enforce so-called blasphemy laws here in the United States, whether through threats of violence or through the actions of complicit government officials. 

In a 2-1 decision, the majority held that WMATA did not engage in viewpoint discrimination in rejecting the ad. However, the U.S. Supreme Court's June 2018 decision in Minnesota Voters Alliance v. Mansky , according to the majority, raised an additional issue that the parties should have the opportunity to brief:

whether the discretion vested in a government official to permit or prohibit speech is “guided by objective, workable standards.” Mansky, 138 S. Ct. at 1891.... We must determine whether Guideline 9 is so broad as to provide WMATA with no meaningful constraint upon its exercise of the power to squelch.....

The parties’ briefs predate the decision in Mansky. Yet Mansky invites arguments about whether Guideline 9 is capable of reasoned application.

Judge Henderson dissented, arguing that the suit should be dismissed on mootness grounds. WTOP reports on the decision.

VA Doctor's Statement Did Not Violate Establishment Clause

In Rose v. Borsos, 2018 U.S. Dist. LEXIS 139466 (ED TN, Aug. 17. 2018), a Tennessee federal district court dismissed a claim by a VA hospital patient that a VA doctor violated the Establishment Clause when the doctor told the patient that "God would forgive [him] for committing suicide because of uncontrolled pain."

Trinity Western Drops Community Covenant Requirement For Students

As previously reported, in June the Supreme Court of Canada upheld the decision by two provinces to refuse to accredit Trinity Western University's proposed new law school. The provinces took the action because of the University's religious-based Community Covenant which, among other things, barred students, faculty and staff from "sexual intimacy that violates the sacredness of marriage between a man and a woman."  In response, last week the University announced that the Covenant will no longer be mandatory for students.  However, as reported by Inside Higher Ed, the Covenant will remain mandatory for faculty, staff and administrators. [Thanks to Steven H. Sholk for the lead via TaxProf Blog.]

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.