5th Circuit: Nation of Gods and Earths Prevails On Prison Treatment

In Tucker v. Collier, (5th Cir., Oct. 3, 2018), the U.S. 5th Circuit Court of Appeals rejected under RLUIPA the Texas Prison System's treatment of adherents of the Nation of Gods and Earths.  Limits were placed on the ability of these adherents to congregate based on the state's categorization of the group as a racially supremacist organization.  The inmate bringing the suit disputed that characterization. The court held that the district court had not satisfied RLUIPA's requirement of an an individualized inquiry into the state's compelling interest and least restrictive means. The court said in part:

The justification for the government’s interest rests on the thin ice of two assumptions with little support in the record: (1) that Tucker and his fellow would-be congregants hold supremacist beliefs; and (2) that allowing this supremacist group to privately congregate threatens prison security. The record shows little evidence that Tucker himself, any other Nation adherent in the Coffield Unit, or even any other inmate in Texas, holds supremacist beliefs. In fact, much of the evidence points to the contrary, showing that Tucker and his fellow Nation adherents advocate racial inclusion and nonviolence....

The government rests its conclusion that Tucker and his friends hold supremacist views on haphazard research about Nation beliefs generally....

Beyond its failure to pass muster under RLUIPA’s individualized analysis, the state’s asserted interest fails for another reason: the policy is underinclusive....

The state knows of the purported link between Odinism and white supremacy in its prisons, and its prison officials admit this point openly.  Still, those groups are allowed to meet. Because the state fails to offer any explanation for this differential treatment, it fails to present sufficient evidence for summary judgment that its interest is compelling....

The state also failed to show that a categorical ban on Nation assembly is the least restrictive means of advancing its interest.

Ban Against Reproductive Choice Discrimination Enjoined As To Defendants With Religious Objections

In Our Lady's Inn v. City of St. Louis, (ED MO, Sept. 30, 2018), a Missouri federal district court enjoined enforcement against plaintiffs of a St. Louis ordinance enacted last year that prohibits discrimination in housing and employment because of a person's reproductive health decisions or pregnancy.  Plaintiffs were a non-profit agency that provides housing to pregnant, low-income women who seek an alternative to abortion; a group of Catholic elementary schools; and a closely held company whose principal owner adheres to Catholic teachings on birth control.

Construing exemptive language of the ordinance narrowly, the court concluded that the ordinance would require businesses to provide health insurance for reproductive services, and that the ordinance would thus be invalid under Missouri's RFRA.  The court went on to invalidate the employment and housing discrimination provisions, finding that they violate the expressive association rights of the women's shelter and the Catholic schools.  The Thomas More Society issued a press release announcing the decision.

Today Is "Bring Your Bible To School" Day

Today is Bring Your Bible to School Day, an event sponsored by Focus on the Family and Alliance Defending Freedom, designed to encourage Christian students to spread their beliefs in public schools within the church-state guidelines created by the courts. Sponsors furnish "conversation cards" and posters for participating students to use. A legal memo describes student right to participate in the program. Baptist Press reports on the day. [Thanks to Scott Mange for the lead.]

ESL Teacher At Christian College Loses Suit Because of Ministerial Exception Doctrine

In Yin v. Columbia International University, (D SC, Sept. 30, 2018), a South Carolina federal district court held that the ministerial exception applies to a teacher of English as a second language at a university that trains students for the Christian ministry. Plaintiff's contract was terminated when the university encountered financial difficulties.  The court thus dismissed plaintiff's suit alleging discrimination and retaliation against her on the basis of race, sex, and national origin, as well as violation of the Equal Pay Act and defamation.

ERISA Church Plan Exemption Held Constitutional

In Smith v. OSF Healthcare System, (SD IL, Sept. 28, 2018), an Illinois federal district court held that the retirement plan for employees of a healthcare system created by the order of St. Francis qualifies as an exempt "church plan" under ERISA. The court went on to conclude that ERISA's church plan exemption does not violate the Establishment Clause, saying in part:

Rather than entangling the government in the affairs of religious organizations, the church plan exemption avoids the entanglement. In other words, by exempting eligible plans from ERISA requirements, religious organizations and their associated entities are relieved from government mandates about how they conduct their affairs, structure their finances and pursue their missions.

Buddhist Center Can Proceed On Some Challenges To Zoning Denial

Thai Meditation Association of Alabama, Inc. v. City of Mobile, Alabama, (SD AL, Sept. 28, 2018), is a challenge to the city's denial of zoning applications to construct a Buddhist meditation center in a residential district. The court denied summary judgement to either side on plaintiff's RLUIPA nondiscrimination and Equal Protection claims. The court said in part:

Defendant’s primary assertion is their Planning Approval decision was based on the poor compatibility of Plaintiffs’ proposed meditation complex within a single family neighborhood, not bias towards Plaintiffs’ religion or practice of meditation.... While this argument supports the level of discretion Defendant claims to possess, Defendant’s evaluation of Plaintiffs’ Applications is riddled with inclinations of discrimination.

The court granted summary judgment to defendant on several of plaintiff's other challenges, including its RLUIPA substantial burden and RLUIPA equal terms claims and its 1st Amendment free exercise claim.

Ministerial Exception In Hostile Work Environment Cases

In Demkovich v. St. Andrew the Apostle Parish, Calumet City, (ND IL, Sept. 30, 2018), an Illinois federal district court set out an extensive analysis of when the ministerial exception doctrine bars claims for a hostile work environment, as opposed to claims involving firing or refusal to hire, under Title VII and the ADA.  In the case, a parish music director claimed damages because of abusive and harassing behavior growing out of his engagement and marriage to a same-sex partner.  The court said in part:

[W]hen a minister brings a claim that does not challenge a tangible employment action, then whether the First Amendment bars the claim depends on a case-by-case analysis on the nature of the claim, the extent of the intrusion on religious doctrine, and the extent of the entanglement with church governance required by the particular litigation. If the nature of the claim would require that a court take stance on a disputed religious doctrine, then that weighs in favor of First Amendment protection for the church....

If, on the other hand, no religious justification is offered at all (for a nontangible employment action), then there would be little or no risk of violating the Free Exercise Clause....

... [L]itigation over Reverend Dada’s alleged harassment based on Demkovich’s sex, sexual orientation, and marital status would excessively entangle the government in religion. To start, the Archdiocese offers a religious justification for the alleged derogatory remarks and other harassment....

... [H]arassing statements and conduct are motivated by an official Church position (or at least the Archdiocese would defend the case on those grounds). Of course, regulating how the official opposition is expressed is not as directly intrusive as outright punishing the Church for holding that position (which a federal court cannot do). But it comes close, and must weigh in favor of barring the claim under the Religion Clauses. 

"So Help Me God" In Citizenship Oath Upheld

In Perrier-Bilbo v. United States, (D MA, Sept. 28, 2018), a Massachusetts federal district court rejected a challenge to the inclusion of the phrase "so help me God" at the end of the oath of allegiance taken by those becoming citizens of the United States.  Rejecting an Establishment Clause claim, the court said in part:

Like the ceremonial prayer in Town of Greece, the inclusion of "so help me God" in the oath of citizenship "is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs." ... The regulation providing for the phrase's inclusion in the naturalization oath does not violate the Establishment Clause.

The court also rejected free exercise, RFRA, equal protection and due process challenges.  According to the court:

United States Citizenship and Immigration Services ("USCIS") offered her a private induction which would omit the words she finds offensive. Not surprisingly, she wishes to participate in the public ceremony with other new citizens and their families and friends. USCIS welcomed her at such a ceremony, assuring her she need not herself say those four words and her oath of allegiance and United States citizenship would nonetheless be fully valid.

India's Supreme Court Invalidates Ban On Women In Temple

In Indian Young Lawyers Association v. State of Kerala, (India Sup. Ct., Sept. 28, 2018), the Supreme Court of India by a vote of 4-1 struck down a rule of the Sabarimala Temple that prevents women between the age of 10 and 50 years from entering. Four separate opinions spanning 411 pages were filed. Chief Justice Misra, who began his plurality opinion by quoting Susan B. Anthony, said in part:

The exclusionary practice being followed at the Sabrimala temple by virtue of Rule 3(b) of the 1965 Rules violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. This denial denudes them of their right to worship. The right to practise religion under Article 25(1) is equally available to both men and women of all age groups professing the same religion.  

Economic Times reports on the decision.

Arizona's Anti-BDS Law Enjoined

In Jordahl v. Brnovich, (D AZ, Sept. 27. 2018), an Arizona federal district court granted a preliminary injunction barring enforcement of Arizona's statute requiring those contracting with the state to certify that they are not engaged in a boycott of Israel. Plaintiff Mikkel Jordahl's law firm contracts with the county jail district to provide legal advice to inmates.  Jordahl boycotts consumer goods and services from businesses that support "Israel's occupation of Palestinian territories." The court concluded that "Plaintiffs would at least be able to meet their burden of showing that the Certification Requirement is an unconstitutional condition on government contractors." The court said in part:

The Act thus encompasses and contemplates elements of expressive political conduct protected under the Constitution. As such, the Court finds it highly likely that Plaintiffs will be able to establish that “boycott,” as defined in the Arizona legislature, burdens expressive political activity protected under the First Amendment. The question then becomes whether the State has an adequate interest in restricting companies’ rights to engage in boycotts of Israel by conditioning their government contracts on a promise to refrain from such activity....

Here, the State has proffered two interests to justify the Certification Requirement: (1) an interest in regulating the State’s “commercial activity to align commerce in the State with the State’s policy objectives and values” and (2) an interest in preventing discrimination on the basis of national origin....

The legislative history of the Act calls these stated interests into doubt. The Act’s history instead suggests that the goal of the Act is to penalize the efforts of those engaged in political boycotts of Israel and those doing business in Israeli-occupied territories because such boycotts are not aligned with the State’s values.... If so, such an interest is constitutionally impermissible.

Payson Roundup reports on the decision.

Kentucky Supreme Court Allows Limited Discovery In Suit Against Church

In Presbyterian Church (U.S..) v. Edwards, (KY Sup. Ct., Sept. 27, 2018), the Kentucky Supreme Court in a 4-3 decision affirmed a Court of Appeals decision limiting discovery in a defamation suit against the Presbyterian Church to that necessary to determine if the church is entitled to ecclesiastical immunity.  The issue arose out of a suit by Rev. Eric Hoey who claims that the church defamed him by releasing to Presbyterian news agencies a statement that he had been terminated for committing ethical violations. A dissent written by Justice Venters argued:

To establish his claim of defamation, Hoey must prove that the Church officials were lying when they said that his conduct violated the Church’s ethical rules for its ministers....

It is immediately apparent from the face of Hoey’s Complaint that his claim can be sustained only by second-guessing the decision of the Church’s governing body that Hoey violated the Church’s ethical policies. The only way that Hoey can show that Church officials falsely stated that he violated the Ethical Policy contained in the Book of Order is to prove that he did not violate that policy.

I respectfully submit that only the Church can make that determination and the Government, through its courts, legislature, or executive agencies, cannot supersede that decision.

$35 Million Verdict Against Jehovah's Witness Organization In Sex Abuse Case

NBC News reported yesterday that a Montana federal court jury has awarded $35 million to a woman who contended that the national organization of the Jehovah's Witness church ordered Montana clergy not to report her sexual abuse as a child by a Jehovah's Witness congregation member.  According to NBC:

A judge must review the penalty, and the Jehovah's Witnesses' national organization — Watchtower Bible and Tract Society of New York — plans to appeal.

Oral Arguments In Prayer At Football Games

Yesterday the U.S. 11th Circuit Court of Appeals heard oral arguments  (recording of full oral arguments) in Cambridge Christian School v. Florida High School Atletic Association, Inc.  In the case, a Florida federal district court dismissed a suit brought by a Christian high school complaining that it was denied permission to use the stadium loudspeaker system to deliver a prayer at the Championship Game in which its football team was playing.(see prior posting.)

No Preliminary Injunction Against Schools' Anti-Islamophobia Initiative

In Citizens for Quality Education San Diego v. Barrera, (SD CA, Sept. 25, 2018), a California federal district court refused to issue a preliminary injunction against an initiative undertaken by the San Diego school district to address Islamophobia and anti-Muslim bullying. The court held that plaintiffs are unlikely to succeed on the merits of their Establishment Clause and state constitutional no-aid clause claims. San Diego Union Tribune reports on the decision.

Court Rejects EEOC's "Pattern or Practice" Claims Against Meat Packer

In EEOC v. JBS USAA, LLC, (D CO, Sept. 24, 2018), a Colorado federal district court in a 95-page opinion issued after a 16-day trial dismissed the EEOC's claims that JBS Swift & Co. meat packers engaged in pattern and practice of discrimination against Muslim employees. The suit claimed that the company had refused to reasonably accommodate Muslim employees' needs during Ramadan to pray and break their fast; that employees were disciplined on the basis of religion, national origin and race; and that JBS retaliated against a group of black, Muslim, Somali employees for opposing discrimination during Ramadan. In rejecting the reasonable accommodation claim, the court said in part:

The EEOC presented numerous instances of employees given verbal or written warnings for “unauthorized breaks” that other evidence indicated may have been in relation to prayer.... But, in spite of JBS’s progressive discipline policy, there was no evidence that any such reprimanded employees were ultimately suspended or terminated as a result of such verbal or written warnings.

Therefore, lacking evidence that any employee suffered a detriment to “compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion” in relation to discipline imposed for unscheduled prayer breaks, the Court concludes that the EEOC has failed to prove its claim that JBS’s policy constituted an unlawful pattern or practice of discrimination.

The discriminatory discipline and retaliation claims were rejected on other grounds.

NOTE ON PUBLICATION SCHEDULE

RELIGION CLAUSE BLOG WILL BE ON A LIMITED AND SPORADIC PUBLICATION SCHEDULE BETWEEN SEPT. 24 AND OCT. 2.  REGULAR POSTINGS SHOULD RETURN ON OCT. 3.

Recent Prisoner Free Exercise Cases

In Wolcott v. Board of Rabbis of Northern and Southern California, (9th Cir., Sept. 20, 2018), the 9th Circuit reversed the dismissal of an inmate's claim that his possession and use of Jewish artifacts were restricted, but affirmed the dismissal of his religious conversion claim.

In Goff v. Eppinger, 2018 U.S. Dist. LEXIS 155455 (ND OH, Sept. 12, 2018), an Ohio federal district court dismissed an inmate's complaint regarding delay in placing his name on the kosher meal approval list, and failure to respond to requests for Passover accommodations.

In Wenzel v. Reynolds, 2018 U.S. Dist. LEXIS 156702 (ND IN, Sept. 13, 2018), and Indiana federal district court allowed an Odinist inmate to proceed with damage claims growing out of denial of his religious book for four days and that he was denied equal access to religious study materials. Claims for confiscation of runes and denial of a Christmas gift were dismissed.

In Cary v. Mox, 2018 U.S. Dist. LEXIS 156666 (ED MI, Sept. 14, 2018), a Michigan federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 157275, Aug. 14, 2018) and dismissed a complaint from a follower of the Native American Traditional Way that his medicine bag had been desecrated by correctional officers searching it.

In Davis v. Harper, 2018 U.S. Dist. LEXIS 158186 (SD IL, Sept. 14, 2018), an Illinois federal district court allowed a Muslim inmate to move ahead with his complaint that prison dietary staff ignored his documented allergies in preparing his food for Ramadan and related feasts.

In Guillen v. Francisco, 2018 U.S. Dist. LEXIS 158293 (ED CA,Sept. 17, 2018), a California federal magistrate judge recommended that a Native American inmate be allowed to move ahead with his complaint that a correctional officer touched plaintiff's medicine bag during a search.

In McCoy v. Aramark Correctional Services, 2018 U.S. Dist. LEXIS 159871 (D KA, Sept. 19, 2018), a Kansas federal district court held that issues of fact remain which preclude summary judgment for an Orthodox Jewish inmate who contends that certified religious diet meals do not meet his religious requirements.

6th Circuit: Moving Street Preachers Away From Pride Festival Violated Their Free Speech Rights

In McGlone v. Metropolitan Government of Nashville, (6th Cir., Sept. 19, 2018), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that the free speech rights of two sidewalk preachers were infringed when they were required to move their amplified anti-homosexuality preaching across the street from the park where a Pride festival was being held. The majority held:

Nashville excluded McGlone and Peters from a traditional public forum for expressing a message opposed to homosexuality and Nashville provides no compelling reason for doing so. Indeed, Nashville does not even argue that its restriction of McGlone and Peters’ speech could survive strict scrutiny review. We therefore end our inquiry here.

Judge Moore dissented, saying in part:

I believe that it was a reasonable time, place, and manner restriction for ... Nashville ... to require ... John McGlone and Jeremy Peters ... to cross a downtown street if they wished to continue shouting disruptive messages through bullhorns during a permit-authorized event in a public park....

European Court Says Catholic Hospital May Have Illegally Fired Doctor

In IR v. JQ, (COJ, Sept. 11, 2018) the Court of Justice of the European Union held that in Germany, a Catholic hospital may have discriminated illegally when it dismissed the head of its Internal Medicine Department for remarrying in a civil ceremony without his first marriage being annulled. According to the press release summarizing the Grand Chamber's holding:

[T]he national court hearing the action must satisfy itself that ... the religion or belief is a genuine, legitimate and justified occupational requirement in the light of the ethos in question.

... [T]he Court observes that adherence to the notion of marriage advocated by the Catholic Church does not appear to be necessary for the promotion of IR’s ethos due to the importance of the occupational activities carried out by JQ, namely the provision of medical advice and care in a hospital setting and the management of the internal medicine department which he headed. Therefore, that does not appear to be a genuine requirement of that occupational activity. This is corroborated by the fact that similar posts were entrusted to employees who were not of the Catholic faith and, consequently, not subject to the same requirement to act in good faith and with loyalty to IR’s ethos....

However, it is for the Bundesarbeitsgericht to determine whether IR has established that, in the light of the circumstances of the case, there is a probable and substantial risk that its ethos or its right of autonomy will be undermined.

National Secular Society reported on the decision.

Vatican Reaches Provisional Agreement With China Over Recognition of Bishops

As reported by Crux, the Vatican yesterday announced that it has signed a provisional agreement with China that would resolve the long-standing conflict over the appointment of bishops.  Pope Francis will officially recognize eight bishops named by the Chinese government's Patriotic Association, but previously not recognized by the Vatican. A Vatican spokesman said:

The objective of the accord is not political but pastoral, allowing the faithful to have bishops who are in communion with Rome but at the same time recognized by Chinese authorities.

For nearly 70 years, Chinese Catholics have been split between an official church recognized by the Chinese government and an underground church loyal to the Vatican.

European Court of Human Rights OKs Injunctions Against Anti-Abortion Activist

In four related Chamber Judgments issued on Sept. 20, the European Court of Human rights upheld injunctions and the award of damages in the cases that doctors brought against an anti-abortion activist for calling doctors who performed abortions aggravated murderers and comparing abortion to the Holocaust. The court issued a press release summarizing the holdings in Annen v. Germany (No. 2 to 5):

The cases concerned a series of complaints by an anti-abortion activist, Klaus Günter Annen, over civil court injunctions on various actions he had taken as part of an anti-abortion campaign. The plaintiffs in the domestic proceedings were four doctors who performed abortions.

The Court held in particular that the injunctions had interfered with Mr Annen’s freedom of expression, but had been necessary in a democratic society. When examining whether there had been a need for such interferences in the interests of the “protection of the reputation or rights of others”, namely of the doctors, the Court’s role was only to ascertain whether the domestic courts had struck a fair balance when protecting the freedom of expression guaranteed by Article 10 and the right to respect for private life protected by Article 8 of the [European] Convention [on Human Rights].

The press release contains links to the full text of each of the four decisions. [Thanks to Paul deMello Jr. for the lead.]

European Court's Advocate General Says Halal and Kosher Meat Can Be Labeled "Organic"

In a September 20 press release, the Court of Justice of the European Union announced the proposed finding of the Advocate General in a reference from France's Administrative Court of Appeal on whether under EU rules halal and kosher meat may be labeled as "organic":

[T]he Advocate General proposes that the Court find that the Regulation on organic production and labelling of organic products and the Regulation on the protection of animals at the time of killing do not prohibit the issue of the European ‘organic farming’ label to products from animals which have been the subject of ritual slaughter without prior stunning carried out in the conditions laid down in the latter regulation.

The Advocate General said, in addition however, that a contrary ruling would not be an interference with freedom of worship. [Thanks to Paul deMello Jr. for the lead.] 

UPDATE: Here is the full text of the Advocate General's opinion in  Œuvrestance d’assistance  aux bêtes d’abattoirs (OABA) v. Ministre de l’Agriculture et de l’Alimentation.

Cert Filed In Title VII Sabbath Accommodation Case

Last week, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Patterson v. Walgreen Co. (cert. filed 9/14/2018).  In the case, the U.S. 11th Circuit Court of Appeals held that Walgreens had offered reasonable accommodations under Title VII for the religious needs of a Seventh Day Adventist employee whose beliefs did not permit him to work on Saturday. The employee, a training instructor, was fired in the aftermath of his refusal to conduct an emergency training session on a Saturday. (See prior posting.)  The Seventh Day Adventist Church issued a press release announcing the filing of the petition for review.

Israeli Court Fines Orthodox Jewish Station For Excluding Women On Broadcasts

Times of Israel reported yesterday:

In a precedent-setting ruling, the Jerusalem District Court fined the ultra-Orthodox Kol Berama radio station NIS 1 million ($280,000) on Thursday for excluding women from the airwaves.

The judge ordered the money be held in a designated fund that will later be distributed to various organizations helping ultra-Orthodox women.

The ruling comes six years after the Reform Movement’s Israel Religious Action Center and the religious women’s rights group Kolech filed a class action lawsuit against the radio station for its refusal to broadcast women on any of its programming.

Congressman Claims Advocacy Groups Are Spying On Christian School Groups In Louisiana

As a lawsuit against the  Bossier Parish, Louisiana school board alleging widespread Establishment Clause violations continues, Louisiana congressman Mike Johnson this week posted the following warning on his campaign/personal Facebook page:

WARNING TO OUR FRIENDS IN BOSSIER SCHOOLS (Please share):

Last night we received very credible information that atheist litigation groups in CA have contacted private investigators in our area to try to hire them to obtain hidden video of Christian student groups and activities at Benton High School and potentially other Bossier Parish schools.

Unfortunately, this is to be expected now that these groups perceive the Bossier Parish School District as an ATM machine for attorney fee awards in what they believe will be easy Establishment Clause lawsuits. They are wrong, as our district is following the law--even as we fight vigorously to defend religious freedom. Sadly, Bossier schools will have to endure this legal harassment from the atheist groups for a while now, so everyone needs to be prepared.

According to an AP report, Americans United for Separation of Church and State says it has not hired private investigators, and the school district's attorney says he has no first hand knowledge of this kind of activity.

Court Continues Preliminary Injunction Against Trump's Policy On Transgender Military Service

In  Stockman v. Trump, (CD CA, Sept. 18, 2018), a California federal district court refused to dissolve a previously issued preliminary injunction barring enforcement of President Trump's August 2017 Memorandum that excludes transgender individuals from the military. The government argued that a subsequent March 2018 Presidential memorandum revoking the 2017 one and instead implementing a policy recommended by the Department of Defense mooted the earlier challenge. The court concluded however:

For the purpose of mootness, the controversy presented by the new policy is substantively the same as the controversy presented by the old policy. Transgender individuals will be disadvantaged “in the same fundamental way.”

The court went on to find that the transgender ban cannot survive intermediate scrutiny, rejecting the government's military readiness and unit cohesion arguments. MetroWeekly reports on the decision.

RFRA Defense To Virgin Islands Marijuana Prosecution Fails

In People of the Virgin Islands v. Felix, (VI Super. Ct., Sept. 11, 2018), a Virgin Island trial court avoided deciding the interesting question of whether RFRA applies to the Virgin Islands even though it does not apply to states. Instead the court held that even if RFRA does apply, the Virgin Islands' ban on possession of marijuana with intent to distribute would survive a RFRA challenge by defendant, a Rastafarian.  The court concluded that both the "substantial burden" and "compelling interest" tests under RFRA were not met.  The court said in part:

The defendant might have been successful in defending against a charge of simple possession of marijuana since marijuana is important to Rastafarian religious practice.  But there exists in the record no evidence establishing that the distribution of marijuana is a requirement of Rastafarianism.

Furthermore, the circumstances leading to the Defendant's arrest were clearly unrelated to his religious beliefs. At the time of his arrest, the Defendant was an employee of the Superior Court of the Virgin Islands and allegedly used the Superior Court's corporate account to have 127.5 grams of marijuana transported — without the knowledge of the Superior Court — from St. Croix to himself on St. Thomas. The Defendant received the drugs at about eleven-thirty in the morning during his shift....

New Law and Religion Journal

Virginia Wesleyan University's Center for the Study of Religious Freedom has published the first issue (full text) of a new on-line journal, Religio et Lex. The journal's call for papers says it:

seeks submissions of quality papers on any aspect of the intersection of religion(s) and law, including the experience of religious adherents under secular legal systems and examinations of religious legal systems...

The journal will publish both student and faculty papers. A link to Religio et. Lex has been added to the Religion Clause sidebar under "Journals".

RFRA Defense To Harboring Aliens Rejected At Pre-Trial Stage

An Arizona federal district court this week refused to dismiss criminal charges against Scott Warren, a volunteer with the humanitarian group No More Deaths.(Background). Warren was charged with concealing and harboring aliens to avoid their detention by immigration authorities. The complaint alleges that Warren gave two men who crossed the border illegally food, water, beds and clean clothes for three days.  In United States v. Warren, (D AZ, Sept. 17, 2018), the court rejected at this stage of the case Warren's defense that his actions are protected under the Religious Freedom Restoration Act.  The court held that RFRA is an affirmative defense to the charges against Warren, and should be decided through a trial rather than through a pre-trial motion to dismiss. [Thanks to Stephanie Inks via Religionlaw for the lead.]

NY Diocese Reaches $27.5M Settlement With 4 Abuse Victims

According to Talk Media News and the New York Times, the Catholic Diocese of Brooklyn (NY) and an after-school program this week agreed to pay $27.5 million to settle claims by four men who, as young boys, were repeatedly raped by Angelo Serrano who worked as a volunteer religion teacher in a Brooklyn church.  The abuse occurred from 2003-2009 when the boys were between 8 and 12 years old, and took place in Serrano's apartment next door to the church where he often invited the victims for sleep-overs. This is believed to be the largest Catholic Church settlement with individual plaintiffs for sex abuse.

Suit Argues Drag Queen Story Time Violates Establishment Clause

KADN News reported yesterday on a lawsuit filed in federal district court in Louisiana by two religious groups-- Warriors for Christ and Special Forces of Liberty-- seeking to stop Drag Queen Story Time at the Lafayette, Louisiana public library.  The lawsuit argues that the program endorses secular humanism. According to a report last month by the Acadiana Advocate:

Drag Queen Story Time entails a group of male University of Louisiana at Lafayette students reading books to young children while dressed in women’s clothing. Library staff will select the books, which are to be appropriate for children ages three to six. It is scheduled for Oct. 6 at the main branch downtown.

The attorney filing the lawsuit for the religious groups is Christophe Sevier, who has filed numerous suits around the country contending that homosexuality is a "religion." (See prior posting).  Commenting on the Louisiana lawsuit, Sevier said:

The evidence would suggest that the self identified transgendered. They are using a government facility to show that the governments backs their worldview to then target children, to indoctrinate them under a faith based ideology.

New Jersey Dioceses Release Victims From Non-Disclosure Agreements

This week, Patrick Brannigan, executive director of the New Jersey Catholic Conference, announced that victims of priest sexual abuse are free to ignore confidentiality agreements they signed in settling their claims with dioceses in New Jersey.  Such agreements were used in settlements prior to 2002.  NJ.com reports on this statement issued by Brannigan:

Cardinal Joseph Tobin and the other Catholic bishops of New Jersey have no issue if someone who had signed a settlement agreement prior to 2002 speaks publicly about his or her ordeal. In fact, we tell survivors who come forward that we will inform law enforcement of their allegations, and we encourage them to do the same.

Cert Filed In Case Testing Limits of Trinity Lutheran Case

A petition for certiorari (full text) was filed on Tuesday with the U.S. Supreme Court in Morris County Board of Chosen Freeholders v. Freedom From Religion Foundation.  In the case, the New Jersey Supreme Court held that historic preservation grants to 12 churches (totaling $4.6 million) violate the Religious Aid Clause of the New Jersey Constitution.  The Court went on to hold that this interpretation does not violate the Free Exercise Clause of the U.S. Constitution. The petition for review frames the issues in the case as follows:

1. Whether using generally available historic preservation funds to repair or restore a house of worship constitutes a “religious use” that falls outside the scope of Trinity Lutheran [v. Comer].

2. Whether the categorical exclusion of all active houses of worship from historic preservation grants violates Trinity Lutheran and the First Amendment as an exclusion based on religious status.

Becket issued a press release announcing the filing of the cert. petition.

In 6th Circuit: Christian School Loses RLUIPA Equal Terms Challenge

In Tree of Life Christian Schools v. City of Upper Arlington, Ohio, (6th Cir., Sept. 18, 2018), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that a private Christian school had failed to establish a prima facie case under the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act.  At issue was the prohibition in Upper Arlington's zoning master plan of the operation of schools-- both secular and religious-- in the area zoned as an office and research center district.  The majority held that the ordinance is "no more onerous to Tree of Life than it is to nonreligious entities that generate comparably small amounts of revenue for the City."  Judge Thapar dissented, arguing that the majority was incorrect in holding that comparator institutions under RLUIPA's equal terms provision must be "similarly situated" in regard to legitimate zoning criteria. Columbus Dispatch reports on the decision. [Thanks to Tom Rutledge for the lead.]

President Sends Yom Kippur Greetings

The Jewish holy day of Yom Kippur begins this evening.  President Trump issued a Presidential Message (full text) today sending greetings to all Jewish people, saying in part:

Melania and I pray that you are all inscribed in the Book of Life and hope this period of reflection and repentance leads to a deeper relationship with God. 

Cert. Petition Filed In Case On Cross In Public Park

A petition for certiorari was filed with the U.S. Supreme Court yesterday in City of Pensacola, Florida v. Kondrat'yev. In the case a 3-judge panel of the 11th Circuit Court of Appeals, feeling bound by prior 11th Circuit and Supreme Court precedent, affirmed a Florida district court's Establishment Clause decision ordering Pensacola to remove a 34-foot Latin cross from a public park. (See prior posting). Becket issued a press release announcing the filing of the petition for review.

European Court Says Hijab Must Be Allowed In Courtroom

In Lachiri v. Belgium, (ECHR, Sept. 18, 2018) (full text in French), the European court of Human Rights in a Chamber Judgment held that a Belgian court's excluding an ordinary citizen-- not a state employee-- from the courtroom because she refused to remove her hijab infringed her right to freedom of religion guaranteed by Art. 9 of the European Convention on Human Rights. One member of the 7 judge panel dissented and two judges filed a concurring opinion.  A press release from the Court in English provides more details. [Thanks to Paul de Mello Jr. for the lead.]

Mahwah Settles New Jersey;'s Suit Against It Over Anti-Jewish Ordinances

A settlement agreement (full text) was reached yesterday in Grewal v. Towship of Mahwah. (D NJ).  In the case, New Jersey's attorney general charged the Town of Mahwah with religious discrimination aimed at preventing an influx of Orthodox Jews.  In particular, the suit pointed to an ordinance banning out-of-state residents from using public parks, and another aimed at preventing the construction of eruvs. (See prior posting.) The settlement acknowledges repeal of the parks ordinance and affirms the right of residents to build eruvs in the township. $350,000 in penalties and attorneys' fees were suspended so long as terms of the settlement are not violated in the next four years. Various record keeping and reporting requirements are also included in the settlement. NJ.com reports on the settlement. [Thanks to Steven H. Sholk for the lead.]

Suit Seeks More Information On Clergy Abuse In Pennsylvania

Yesterday a class action lawsuit was filed in a Pennsylvania state trial court alleging that eight Pennsylvania Catholic dioceses continue to cover up sexual abuse by priests despite the recent Pennsylvania grand jury report on clergy abuse. The suit was brought on behalf of victims of clergy sexual abuse and children currently enrolled in Catholic schools. The lawsuit seeks injunctive relief ordering dioceses to release all information in their possession regarding predatory priests, including the names of predatory priests that were redacted from the grand jury report. AP and York Daily Record report on the lawsuit.

In a related report, yesterday the Pittsburgh Post-Gazette published a background story on Daniel Dye, the state Attorney General's prosecutor who led the grand jury investigation of abuse by Catholic clergy.  The paper says that since the release of the grand jury report, the Attorney General's office has received 1,000 calls from people reporting abuse.

Recent Articles of Interest

From SSRN:

• Kyle Fields, Tohono O'odham Legal Systems, (August 1, 2018).
• Shahbaz Ahmad Cheema, Indigenization of Restitution of Conjugal Rights in Pakistan: A Plea for its Abolition, (August 28, 2018).
• Stephen M. Bainbridge, Restoring Confidence in the Roman Catholic Church: Corporate Governance Analogies, (UCLA School of Law, Public Law Research Paper No. 18-32 (2018).
• Amanda Shanor, First Amendment Coverage, (93 New York University Law Review 318 (2018)).
• Steven Douglas Smith, 'Fixed Star' or Twin Star? the Ambiguity of Barnette, (San Diego Legal Studies Paper No. 18-363 (2018)).
• Serena Mayeri, Intersectionality and the Constitution of Family Status, (Constitutional Commentary, Vol. 32, Pg. 377, 2017).
• Lisa Chiyemi Ikemoto, Reproductive Rights and Justice: A Multiple Feminist Theories Account, (in Research Handbook on Feminist Jurisprudence (Robin West and Cynthia Bowman eds., Elgar Press, Forthcoming).
• Shannon Gilreath, A Comprehensive Rethinking of Equal Protection Post-Obergefell: A Plea for Substantivity in Law, (Wake Forest Univ. Legal Studies Paper (2018)).
• Shahbaz Ahmad Cheema, Revisiting Abdul Kadir v Salima: Locus Classicus on Civil Nature of Marriage?, (August 01, 2018).
• Avishai Benish, Dana Halevy & Shimon Spiro, Regulating Social Welfare Services: Between Compliance and Learning, (Forthcoming in International Journal of Social Welfare).

From SSRN (Legal issues relating to sexual orientation and religion):

• John G. Culhane, The Right to Say, But Not to Do: Balancing First Amendment Freedom of Expression with the Anti-Discrimination Imperative, (Widener Law Review, Vol. 24, 2018).
• Robert Leckey, Religion and Same-Sex Marriage, (In David Koussens, Benjamin Prud’homme & Safa Ben Saad (eds), La religion en droit de la famille: Le religieux comme variable de prise de décision dans un droit familial laïcisé [2019 Forthcoming]).
• Nausica Palazzo, The Strange Pairing: Building Alliances between Queer Activists and Conservative Groups to Recognize New Families, )Michigan Journal of Gender & Law, Vol. 25, No. 2, Fall 2018, Forthcoming).
• Thomas C. Berg, Masterpiece Cakeshop: A Romer for Religious Objectors?, (2017 Cato Supreme Court Review 139).
• Jordan Blair Woods, Religious Exemptions and LGBTQ Child Welfare, (Minnesota Law Review, Vol. 103 (May 2019, Forthcoming)).
• Robert C. Blitt, Leveraging Regional Human Rights Mechanisms Against Universal Human Rights: The OIC Independent Permanent Human Rights Commission Study on Sexual Orientation, (William & Mary Law Review Online, Vol. 60(1) 2018).
• Steven Douglas Smith, Obergefell and the Reconstituting of America, (San Diego Legal Studies Paper No. 18-364 (2018)).
• Justin O'Neill, The Queer Case of the LGBT Movement, (41 University of Hawaii Law Review (2019 Forthcoming)).

From SmartCILP:

• Ziaulrahman Mushkalamzai, Justifications for the Three-Tiered Judicial System in Afghanistan: Comparative Perspectives on Islamic Jurisprudence, 48 California Western International Law Journal 85-121 (2017).
• Faraz Siddiqui & Aleea Stanton, Blocking the Means to Exploit: Ending Kafala Under the Principle of Sadd al-Dhara'i, [Abstract], 61 Howard Law Journal 341-368 (2018).
• Nicole B. Godfrey, Holding Federal Prison Officials Accountable: The Case for Recognizing a Damages Remedy for Federal Prisoners' Free Exercise Claims, 96 Nebraska Law Review 924-976 (2018).
• JD Hsin, Defending the Public's Forum: Theory and Doctrine In the Problem of Provocative Speech, 69 Hastings Law Journal 1099-1145 (2018).

Recent Prisoner Free Exercise Cases

In Ackerman v. Washington, 2018 U.S. Dist. LEXIS 151742 (ED MI, Sept. 6, 2018), a Michigan federal district court reinstated Orthodox Jewish inmates claim that providing a vegan diet instead of a kosher diet imposes a substantial burden on the sincere religious beliefs that plaintiffs must eat meat on the Sabbath and Jewish holidays and dairy on Shavuot.

In Luther v. White, 2018 U.S. Dist. LEXIS 151896 (W KY, Sept. 6, 2018), a Kentucky federal district court allowed a Rastafarian inmate to supplement his prior complaint by adding a claim that he was denied the right to purchase and use incense.

In Ritter v. Davis, 2018 U.S. Dist. LEXIS 152028 (ND OH, Sept. 6, 2018), an Ohio federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 152036, Aug. 20, 2018) and refused to dismiss a Jewish inmate's complaint that his request for kosher meals was denied.

In Pleasant-Bey v. Luttrell, 2018 U.S. Dist. LEXIS 152864 (WD TN, Sept. 7, 2018), a Tennessee federal district court dismissed a Muslim inmate's challenges to the prison's limitations on Jumu'ah services, food service policies regarding Ramadan, and its policies regarding the hiring of an imam.

In Soriano v. Spearman, 2018 U.S. Dist. LEXIS 153187 (ED CA, Sept. 6, 2018), a California federal magistrate judge recommended allowing a Muslim inmate to move ahead with his complaint that Muslim inmates, unlike others, were not allowed to perform their prayers in the chapel, requiring them to pray outside in extreme weather conditions.

In Harvey v. Baker, 2018 U.S. Dist. LEXIS 153802 (WD VA, Sept. 10, 2018), a Virginia federal district court allowed an inmate to move ahead with his free exercise claim for damages for denial of a pork-free diet that conformed to his Sunni Muslim beliefs.

In Burroughs v. Mitchell, 2018 U.S. Dist. LEXIS 153808 (ND NY, Sept. 6, 2018), a New York federal district court, sorting through a wide-ranging complaint, dismissed an inmate's complaint that on one occasion defendants refused to provide a Koran, prayer rug, Kufi, and Ramadan meal, but allowed him to move ahead with his claim that one defendant refused to provide him with his religious items in retaliation for his refusal to respond to questions about two other inmates' escape.

In Dent v. Dennison, 2018 U.S. Dist. LEXIS 153950 (SD IL, Sept.10, 2018), an Illinois federal district court rejected a magistrate's recommendation (2018 U.S. Dist. LEXIS 153946, July 13, 2018) and refused to require prison authorities to allow an inmate to attend both Catholic and Protestant religious services.

Appeals Court Remands Employment Discrimination Claim Against NJ Corrections Department

In Roseus v. State of New Jersey, (NJ App., Sept. 10, 2018), a New Jersey state appeals court remanded to the trial court a suit in which plaintiff claimed the Department of Corrections (DOC) violated the state's Law Against Discrimination when it dismissed him from a training program for corrections officers. DOC refused to grant  Marven Roseus, who for religious reasons does not shave his face or head, a religious accommodation to depart from the Department's grooming rules. The appeals court held:

[D]efendants moved for dismissal... Consequently, there is no record.... [W]e do not have a record of the DOC's actual grooming policy, the rationale for that policy, whether the DOC has granted accommodations to others from its grooming policy, whether the DOC engaged in a "bona fide effort" to accommodate plaintiff, and whether an accommodation to plaintiff would impose an "undue hardship" on the DOC. 

Muslim Inmate Wins $25,000 Damages Against Correctional Officer

In an unusual success for a prisoner case, a Nevada judge has awarded $15,000 in compensatory damages and $10,000 in punitive damages against a prison correctional officer in a suit by a Muslim inmate.  In Howard v. Foster, 2018 U.S. Dist. LEXIS 151629 (D NV, Sept. 6, 2018), the court described the correctional officer's conduct:

On the morning of August 19, 2012, somewhere between 40 and 60 Muslim inmates were holding Eid prayer services in the SDCC gymnasium....  The room was quiet enough for the individual leading the prayer to be heard by the other prayer participants.

During the prayer service, however, [correctional officer] Dicus began talking loudly enough for Howard and other prayer participants to hear. At first, Dicus asked the other officers why the inmates were in the gymnasium for prayer services. Then, Dicus began cursing and disparaging Muslims.... Dicus stated that he hoped Muslims would die....

Howard heard Diggle warn Dicus that the Muslim inmates would file grievances regarding his statements. Dicus responded, "Mother fucker grievance. . . . . I kill[ ] Muslims, you know. . . . They need to get their ass up out of here. What the hell we allowing them to be down there doing whatever they doing?"...

Dicus' outburst began very early on in the Eid prayer service and made the service unbearable to the participants. Because Dicus' comments were so disruptive, the Muslim inmates were not able to complete the  Eid prayer service, and they did not have the Eid feast that they had planned to share in after prayer.

Court Refuses To Dismiss Challenge To Michigan's Protection of Catholic Adoption Agencies

In an important decision, a Michigan federal district court in Dumont v. Lyon, (ED MI, Sept. 14, 2018), held that same-sex couples can move ahead with their Establishment Clause and equal protection claims against the Michigan Department of Health and Human Services for permitting child placing agencies that contract with the state and receive state funds to use religious criteria to refuse to place children with same-sex couples.  Laws enacted by the Michigan legislature in 2015 protect child-placing agencies from being required to provide adoption or foster care placements that conflict with their sincerely held religious beliefs, or being penalized for doing so. (See prior posting.)

In a 93-page opinion, the court first concludes that plaintiffs have Article III (but not taxpayer) standing to bring their challenges. Then, denying defendants' motion to dismiss, the court says in part:

Plaintiffs plausibly allege ... that the State’s practice of contracting with and permitting faith-based child placing agencies to turn away same-sex couples has both the subjective purpose of discriminating against those who oppose the view of the faith-based agencies ... and objectively endorses the religious view of those agencies that same-sex marriage is wrong, sending a “‘message [to Plaintiffs] that they are outsiders, not full members of the community.’”....

The child placing agencies are, in many ways, the gateway for a family seeking to adopt or foster a child into Michigan’s adoption and foster care system. The scope of their duties, and hence any “government exclusivity” of the functions they perform, must be the subject of further discovery. For purposes of analyzing Plaintiffs’ Establishment Clause claim, the Court must accept the allegations of the Complaint as true and such allegations surely “implicate” the Establishment Clause and plausibly suggest “excessive entanglement” such that the Court will allow Plaintiffs’ Establishment Clause claim to proceed further....

Plaintiffs are entitled to an opportunity to conduct discovery to support their claim that the State’s practice of continuing to contract with faith-based agencies that invoke PA53’s religious belief protection to turn away same-sex couples lacks a rational basis and to further develop their Equal Protection claim.

ACLU issued a press release announcing the decision.

Sikhs Ask DOE For Title VI Coverage

According to Huff Post, United Sikhs has asked the U.S. Department of Education to treat Sikhs as an ethnic group as well as a religion so that discrimination against Sikhs would fall under Title VI of the 1964 Civil Rights Act. That provision bars racial, but not religious, discrimination by educational institutions. As previously reported, the Department of Education has decided to reopen a case charging Rutgers University with allowing a hostile environment for Jewish students, defining Jews as an ethnic group.

Alaska Christian Women's Shelter Challenges Requirement It Serve Transgender Women

In Anchorage, Alaska, a Christian soup kitchen and women's shelter-- the Hope Center-- has filed a federal lawsuit against the Anchorage Equal Rights Commission seeking to end the Commission's investigation of the Center. According to KTTU News, The controversy grows out of the Hope Center's denial of shelter services to a transgender woman and her filing of a discrimination complaint. The suit seeks to end the Commission's investigation of the Center for violation of the city's anti-discrimination law that protects against discrimination on the basis of gender identity. The Center's complaint alleges in part:

It would not only be dangerous and against common sense, but would violate the Hope Center’s sincerely held religious beliefs to admit biological men into its shelter and allow them to sleep side by side and disrobe next to women, some of whom have been assaulted by men and fear for their safety.

Russian Law Enforcement Targets Jehovah's Witnesses

According to a Forum 18 report yesterday, in Russia since January of this year law enforcement agencies have been raiding the homes of Jehovah's Witnesses, charging many with violating the country's ban on extremist organizations. So far some 69 individuals are under investigation or on trial. Most of the cases follow on the 2017 ban on all activities of the Jehovah's Witness Administrative Center and its local affiliates.

Teacher Lacks Standing To Challenge Contraceptive Mandate Exemptions

In Campbell v. Trump, (D CO, Sept. 11, 2018), a Colorado federal district court held that a teacher in a private school lacks standing to challenge the Trump administration rules that allow employers to refuse on religious or moral grounds to provide health insurance coverage for contraceptive services. Plaintiff currently has coverage in her employer's policy but argues that she fears her employer might withdraw coverage.  The court held:

There are no factual allegations in the complaint that support an inference that injury to plaintiff, economic or otherwise, is “actual and imminent” as required to constitute an injury in fact under Article III standing principles.

Israeli Court Orders Recognition of Conversion Performed Outside of Official Rabbinate

Haaretz and Times of Israel report today that in a first of its kind decision in Israel, a Jerusalem district court has ordered Israel's Interior Ministry to register as Jewish in the Population Registry a woman converted by a rabbinical court operating outside of the official Rabbinate.  The conversion was performed by Orthodox rabbis through Giyur K’Halakha, a private initiative of prominent religious Zionist rabbis that is less stringent in its conversion requirements.

Suit Charges Catholic Church With Defamation

The Morning Call yesterday reported on a lawsuit filed in a Pennsylvania state trial court by Juliann Bortz based on information which she learned for the first time from the recently released Pennsylvania state grand jury report on sexual abuse by Catholic clergy.  The lawsuit, alleging defamation and intentional infliction of emotional distress, claims that Church officials gathered “irrelevant, unrelated [or] false ‘dirt’ ” on Bortz to discredit her reports of abuse by a priest.

DOE Reopens Case Against Rutgers For Allowing Anti-Semitism On Campus

The New York Times reported yesterday:

The new head of civil rights at the Education Department has reopened a seven-year-old case brought by a Zionist group against Rutgers University, saying the Obama administration, in closing the case, ignored evidence that suggested the school allowed a hostile environment for Jewish students.

The move by Kenneth L. Marcus, the assistant secretary of education for civil rights and a longtime opponent of Palestinian rights causes, signaled a significant policy shift on civil rights enforcement — and injected federal authority in the contentious fights over Israel that have divided campuses across the country. It also put the weight of the federal government behind a definition of anti-Semitism that targets opponents of Zionism, and it explicitly defines Judaism as not only a religion but also an ethnic origin.

Ball State Settles Suit By Pro-Life Student Group

The Muncie Star Press reported last week on the recent settlement of a lawsuit (see prior posting) against Ball State University by "Students for Life at BSU." The suit alleged viewpoint discrimination in distribution of student activity fees. The pro-life student group's request for $300 from student activity fees was denied, apparently under the Guideline excluding from funding "[a]ny Organization which engages in activities, advocacy, or speech in order to advance a particular political interest, religion, religious faith, or ideology." Under the Settlement Agreement (full text), the University will adopt new rules that require that student activity fees be allocated in a viewpoint-neutral manner The school will also pay $300 in damages to the student group and pay the group's $12,000 in attorneys' fees to Alliance Defending Freedom.

Religious Themed Ad Reinstated On Football Field Amid Broader Litigation

As previously reported, in February four parents sued the Bossier Parish, Louisiana school board alleging widespread Establishment Clause violations. Recently, amidst settlement talks in the litigation, the Benton High School Booster Club sold advertising space on the school's football field to Christ Fit Gym. The business' logo that was placed on the field in the end zone includes a cross and a citation to a bible verse.  KTBS News  and KTAL report that at the recommendation of legal counsel the ad was removed just before the school's homecoming game on Friday, pending consultation with the court. But apparently Christ Fit Gym filed suit in state court against the Booster Club challenging removal of the ad, and a temporary restraining order was issued against the Club.  The Booster Club is not a defendant in the federal lawsuit. The School Board that is a party to the federal lawsuit was not previously aware of the logo, but met yesterday to discuss it.  As reported by Bossier Now, amid increasing pressure the Board, after a two hour executive session, decided to fight the federal lawsuit rather than settle it and to allow back Christ Fit Gym's ad.

RLUIPA Challenge By Catholic High School To Stadium Lighting Rules Rejected

In Marianist Province of the United States v. City of Kirkwood, (ED MO, Sept. 7, 2018), a Missouri federal district court rejected a RLUIPA challenge to a Missouri city's zoning regulation of pole mounted lights in outdoor sports fields.  The challenge was brought by Vianney High School, a Catholic Marianist institution. The court held in part:

Vianney has not demonstrated that its ability to use the lights and sound system constitute a "religious exercise" or that its inability to use the lights and sound system constitutes a "substantial burden" on its religious beliefs.

The court also rejected the school's RLUIPA "equal terms" claim and various state law challenges.

Recent Prisoner Free Exercise Cases

In Young v. Hooks, 2018 U.S. App. LEXIS 25324 (6th Cir., Sept. 5, 2018), the 6th Circuit upheld the dismissal of an inmate's complaint that a correctional officer poured out his prayer oil.

In Whitehead v. Honeycutt, 2018 U.S. Dist. LEXIS 149705 (WD NC, Aug. 27, 2018), a North Carolina federal district court allowed a pre-trial detainee to move ahead with his complaint that his Bible and other Seventh Day Adventist religious books were confiscated.

In Ali v. Romero, 2018 U.S. Dist. LEXIS 149848 (D MD, Sept. 4, 2018), a Maryland federal district court appointed counsel to file an amended complaint naming correct defendants in a suit by an inmate who objects to the failure of a facility to offer daily Muslim religious services.

In Blankenship v. Terry, 2018 U.S. Dist. LEXIS 149863 (SD WV, Sept. 4, 2018), a West Virginia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 150125, Aug. 7, 2018) and dismissed an inmate's complaint that a corrections officer threw his prayer mat on the floor and stepped on it, and that plaintiff was refused a new prayer mat.

In Johnson v. Bienkoski, 2018 U.S. Dist. LEXIS 150688 (MD PA, Aug. 31, 2018), a Pennsylvania federal magistrate judge recommended dismissing an inmate's complaint that alleged, among other things, that his religious beads were confiscated and that he had his commissary privileges restricted during Ramadan.

In Ackerman v. Washington, 2018 U.S. Dist. LEXIS 150721 (ED MI, Sept. 5, 2018), a Michigan federal district court denied summary judgment for the Michigan Department of Corrections in a suit by Jewish inmates who claim that the kosher meals being provided are not adequately protected against cross-contamination that would make them non-kosher.

In Gill v. Aramark Correctional Services, 2018 U.S. Dist. LEXIS 150895 (ED WI, Sept. 5, 2018), a Wisconsin federal district court allowed a Muslim inmate to move ahead with his complaint that on most days he was served vegan meals instead of Halal meals.

In Trainauskas v. Fralicker, 2018 U.S. Dist. LEXIS 151161 (SD IL, Sept.5, 2018), an Illinois federal district court adopted in part a magistrate's recommendation (2018 U.S. Dist. LEXIS 151160, June 18, 2018) and allowed an inmate who is a follower of Asatru to move ahead with his complaint about disciplinary sanctions growing out of his involvement with Asatru organizations.

Trump Holds Pre-Rosh Hashanah Conference Call With Rabbis

Rosh Hashanah begins this evening. The White House has posted a transcript of President Trump's annual conference call with Jewish faith leaders and rabbis held on Thursday. The President said in part:

I send my warmest wishes to the Jewish people in the United States and around the world as we approach the High Holy Days. The Jewish practice of reflection, atonement, and remembrance during this holy period not only strengthens Jewish communities, but inspires all Americans.

 The Forward reports:

President Trump’s annual pre-Rosh Hashanah phone call to Jewish groups on Thursday lasted only 20 minutes but featured four allies singing his praises to an audience far more right-wing than calls under past administrations.

UPDATE: The President and First Lady also, in a Sept. 9  press release, sent greetings to those celebrating Rosh Hashanah.

Challenges To Pension Plan's ERISA Exemption Move On

Last year, the U.S. Supreme Court ruled in favor of three large health care systems whose employees had challenged whether their retirement plans qualified as exempt "church pans" under ERISA. (See prior posting.)  Now in one of the cases on remand, a California federal district court has refused to dismiss further challenges to the pension plan's exemption.  In Rollins v. Dignity Health, (ND CA, Sept. 6, 2018), the court held that plaintiffs can move ahead with their claims that the plan is not properly "maintained" as a church plan and that it is not associated with a church.  The court also refused to dismiss state breach of contract and breach of fiduciary duty claims. The court held that it will reach plaintiffs' Establishment Clause challenge to the church plan exemption only if it concludes that the plan qualifies as a church plan.  If the plan's exemption is not ultimately upheld, the plan may be underfunded by as much as $1.2 billion. (See prior posting.)

11th Circuit Affirms Order To Remove Cross From Park, But Expresses Disagreement With Precedent

In Kondrat'Yev v. City of Pensacola, (11th Cir., Sept. 7, 2018), a 3-judge panel of the 11th Circuit Court of Appeals, feeling bound by prior 11th Circuit and Supreme Court precedent, affirmed a Florida district court's Establishment Clause decision ordering Pensacola to remove a 34-foot Latin cross from a public park. Two judges each wrote lengthy concurring opinions explaining their disagreement with existing precedent. One of those judges, District Judge C. Ashley Royal sitting by designation on the case, wrote a 53-page concurrence that includes a long history of religious establishments.  Here is an excerpt from Judge Royal's interesting opinion:

[T]he history of the idea of the religious conscience was central to the history of religious freedom in early America and in Europe. But religious conscience was not understood as separate from religious action. It was not simply some psychological phenomenon or something that you had on your mind. Protestants and Catholics did not fight the Wars of Religion for almost 100 years because some religious image made them feel uncomfortable, unwelcome, or uneasy. Furthermore, in the 16th, 17th, and 18th centuries, men and women were not burned at the stake, beheaded, hung, flogged, banished, jailed, beaten, taxed, had their ears cropped, or were divested of their property or their rights as citizens because of their state of mind. It was because of their actions and because their actions arose out of their religious convictions. To counter dissidents’ religious actions, churches and governments imposed penalties, and that is what the Establishment Clause was designed to protect against. 

You can listen to this march of horrors, abuse, cruelty, and death and recognize that it was not a walk in the park. And despite the fact that I am careful to avoid trite statements in my orders, all this case is about is a walk in the park.... Some courts have lost sight of why so many fought for so long at such great cost for religious freedom. It was not to protect people from looking at crosses in public parks. That demeans and debases the sacrifices of millions of people....

3rd Circuit Hears Arguments On Cross In County Seal

Yesterday, the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Freedom From Religion Foundation v. County of Lehigh.  In the case, a Pennsylvania federal district court reluctantly held that a large, central Latin cross in the seal and flag of Lehigh County, Pennsylvania violate the Establishment Clause under the Lemon test and the endorsement test.  Daily Journal reports on the oral arguments.

Group Lacks Standing To Challenge Charter School Act On Establishment Clause Grounds

In Indiana Coalition for Public Education v. McCormick, (SD IN, Sept. 6, 2018), an Indiana federal district court dismissed on standing grounds a suit by an advocacy organization challenging on Establishment Clause grounds Indiana's Charter School Act. Plaintiff claims that it is unconstitutional for the state to allow a religious college to be an authorizer for public charter schools.  The court said in part:

The Coalition’s Complaint is really a challenge to Indiana’s policies of school choice and of school funding following the student, draped in the clothing of an Establishment Clause challenge. But the Coalition challenges just one recipient of that funding, and it all but admits that its alleged injuries are in no meaningful way caused by the religious character of Seven Oaks’ authorizer. Rather, it is a mere coincidence that Seven Oaks, with which the public school corporations must compete for students, happens to be authorized by a religious institution. The school corporations would face exactly the same funding difficulties (and thus the Coalition would face the same alleged injury) had Seven Oaks been authorized by a secular private college, as permitted by the Charter School Act, instead of Grace College. These observations confirm the gross misfit between the alleged constitutional injury and the Coalition’s requested relief.

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.