Norway's Supreme Court Upholds Doctor's Conscience Rights

According to Irish Legal News, in a decision published last Thursday, Norway's Supreme Court held that the European Convention on Human Rights requires health authorities to respect a doctor's conscientious objection to performing certain medical procedures.  Dr. Katarzyna Jachimowicz had been fired from her position in a medical clinic after she refused an order to insert an IUD in a patient. She claims that the IUD may act as an abortifacient, and her Christian faith opposes abortion.

Suit Challenges IRS Church Exemption From Filing Form 990

A lawsuit was filed yesterday in D.C. federal district court challenging the exemption for churches from filing annual Form 990 with the Internal Revenue Service.  The exemption is set out in Internal Revenue Code Sec. 6033(a)(3). The complaint (full text) in Nonbelief Relief, Inc. v. Kauter, (D DC, filed 10/11/2018), contends that:

The information return exemption given to churches and other religious organizations constitutes discrimination on the basis of religion in violation of the Establishment Clause.

The suit was filed by a nonprofit organization set up by the Executive Board
of the Freedom From Religion Foundation for nonbelievers to use to channel contributions for relieving human suffering and injustice on a global scale, whether from natural disasters, human actions or adherence to religious dogma. The organization's non-profit status was suspended for its failure to file Form 990 for 3 years. FFRF issued a press release announcing the filing of the lawsuit.

7th Circuit Upholds Wisconsin's Limit on Busing Benefit To One School of Each Denomination In District

In St. Augustine School v. Evers, (7th Cir., Oct. 11, 2018), the U.S. 7th Circuit Court of Appeals, in a 2-1- decision, upheld Wisconsin's statue which requires school districts to bus private school students, but limits the obligation to only one private school affiliated with the same religious denomination or sponsoring group in each attendance district. St. Augustine school did not qualify for busing because another Catholic school in the district qualified first. The majority rejected free exercise and Establishment Clause challenges to the arrangement, saying in part:

The reason why St. Augustine cannot demand services within its desired attendance zone is not because it is a Catholic school; it is because—by its own choice—it professes to be affiliated with a group that already has a school in that zone.  By the same token, Wisconsin is not denying the Forros a transit subsidy because they are Catholic or because they seek to send their children to Catholic school. It funds transportation for all of the Catholic families who send their children to St. Gabriel. The problem for St. Augustine is not that it is Catholic; it is that it is second in line.

Judge Ripple dissented arguing that St. Augustine and St. Gabriel should not be seen as affiliated with the same denomination because St. Augustine is organizationally unaffiliated with the Catholic Archdiocese.

Dreiband Confirmed As Assistant AG For Civil Rights Division

Reuters reports that Eric Dreiband was confirmed by the U.S. Senate yesterday by a vote of 50-47 to become Assistant Attorney General heading the Justice Department's Civil Rights Division.  Dreiband is currently a partner at the law firm of Jones Day. Prior to that he served as the EEOC's general counsel. (Bio).  U.S. Law Week reports that many civil rights activists opposed Dreiband's nomination, recounting:

Dreiband represented the University of North Carolina when it implemented policies under the state’s since-repealed “bathroom bill,” requiring people to use gender-designated restroom facilities based on the biological sex listed on their birth certificates....

Dreiband unsuccessfully represented Abercrombie & Fitch Co. in a case in which a Muslim teenager alleged the clothing company refused to hire her because she wore a religious head scarf. He led a discrimination lawsuit challenging Abercrombie’s employee appearance requirements while at the EEOC but took the opposite position when he went into private practice.

Rabbi Sues Condo Association For Religious and Disability Accommodations

Jersey Shore Online reports on a lawsuit filed yesterday in New Jersey federal district court by a retired Orthodox rabbi against his condominium association claiming religious and disability discrimination. Rabbi Philip Lefkowitz moved to the Jackson, NJ senior living community with his two sons in 2016.  All three are confined to wheelchairs because of complications from diabetes. Lefkowitz seeks permission to build a Sukkah -- a temporary structure for the Fall holiday of Sukkot-- that is larger than the association bylaws permit in order for the structure to be wheelchair accessible. He is also asking that a path be built between the sidewalk and a nearby gate that is currently kept locked.  He wants the gate equipped with a Sabbath-accessible lock so he and his sons can get to religious services.

Recent Prisoner Free Exercise Cases

In Jasmaine v. Futrelle, 2018 U.S. Dist. LEXIS 164821 (ED NC, Sept. 26, 2018), a North Carolina federal district court dismissed a complaint by a Wiccan inmate that group worship was not provided because of too few adherents to satisfy the minimum requirement for providing it.

In Jenkins v. Sinclair, 2018 U.S. Dist. LEXIS 164485 (WD WA, Sept. 25, 2018), a Washington federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 165580, Sept. 4, 2018) and dismissed a Muslim inmate's complaint that he can no longer obtain prayer oil from his preferred outside vendor and is denied access to donated prayer oil unless he attends services of Muslim sects with which he disagrees.

In Newsome v. Fairley, 2018 U.S. Dist. LEXIS 165994 (SD MS, Sept. 27, 2018), a Mississippi federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 166587, Aug. 3, 2018) and refused to issue a TRO or preliminary injunction in a suit by an inmate practicing the Natsarim faith seeking to obtain immersion baptism, a kosher diet and religious counseling.

In Hatcher v. Rubenstein, 2018 U.S. Dist. LEXIS 166045 (SD WV, Sept. 27, 2018), a West Virginia federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 168091, Aug. 8, 2018) and dismissed a Muslim inmate's complaints regarding lack of Halal meat and his inability to wear his kufi throughout the prison.

In Jones v. Galske, 2018 U.S. Dist. LEXIS 166331 (ED WI, Sept. 27, 2018), a Wisconsin federal magistrate judge dismissed an inmate's claim that her 1st Amendment rights were infringed when she was not released into the dayroom to watch televised bible study.

In Mann v. Spatney, 2018 U.S. Dist. LEXIS 166847 (ND OH, Sept. 27, 2018), an Ohio federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 166570, July 31, 2018) and dismissed claims by a Native American inmate that there are no Native American materials in the chapel library and complaints about access to sacred herbs, sweat lodge, spiritual advisor, smudging and observance of holy days.

In Gawlik v. Semple, 2018 Conn. Super. LEXIS 2305 (CT Super. Ct., Aug. 31, 2018), a Connecticut state trial court, after a bench trial, ruled against plaintiff who complained about policies that prevented him from receiving various books, newspapers, blank cards and envelopes, decorated cards and artwork.  Plaintiff, who was serving a 60 year sentence for murder, was studying in the hopes of becoming a Catholic priest.

In Richardson v. Welch, 2018 U.S. Dist. LEXIS 167224 (WD VA, Sept. 28, 2018), a Virginia federal district court dismissed a complaint by a Nation of Islam adherent that prison authorities refuse to recognize the NOI practice of observing Ramadan in December, instead of on the lunar cycle recognized by other Muslims.

Tax Court: "Pastoral Gifts" Were Taxable Income

In a 36-page opinion peppered with New Testament quotations and citations, the U.S. Tax Court in Felton v. Commissioner, (US TC, Oct. 10, 2018) held that the over $200,000 per year that congregants donated to Rev. Wayne Felton should be taxed as income rather than treated as gifts.  The amounts were received in "Pastoral Gift" envelopes that were available to congregants each week. The court explained:

The dispute between the Commissioner and the Feltons has roots deep in Christian history, and both parties can see their positions staked out as far back as St. Paul. “Who planteth a vineyard, and eateth not of the fruit thereof? Or who  feedeth a flock, and eateth not of the milk of the flock?” 1 Cor. 9:7. And “[e]ven so hath the Lord ordained that they which preach the gospel should live of the gospel.” 1 Cor. 9:14. In our era, the Commissioner might have argued, all this milk and fruit constitute income upon receipt. See sec. 61 (gross income defined as income from whatever source deriveth).

But the relationship between a pastor and his flock is far from entirely commercial, and the Feltons argue that, at least in part, they are supported by gifts, not wages justly bargained for and justly earned in the marketplace: “[W]hen I preach the gospel, I may make the gospel of Christ without charge, that I abuse not my power in the gospel.” 1 Cor. 9:18. And “[y]e sent once and again unto my necessity. Not because I desire a gift: but I desire fruit that may abound to your account. But I have all, and abound: I am full.” Phil. 4:16-18.

We have already found that the transfers--whether gifts or compensation-- have left the Feltons very full indeed. But our tax system is somewhat more complicated than the ancients’, and meeting its exactions can only rarely be extinguished with the draught of a single fish. See Matt. 17:27. To decide this case, we must therefore descend from the sacred to the profane.

The court also approved of the tax penalties assessed by the IRS. [Thanks to Steven H. Sholk for the lead.]

EEOC Sued Over Enforcement of LGBT Protections Without Religious Exemption

A class action lawsuit was filed last week in a Texas federal district court against the EEOC on behalf of all churches that oppose homosexual or transgender behavior for sincere religious reasons and on behalf of all businesses with similar beliefs.  The complaint (full text) in U.S. Pastor Council v. EEOC, (ND TX, filed 10/6/2018), says that the EEOC interprets Title VII as covering employment discrimination on the basis of sexual orientation or gender identity, without a religious exemption. It contends that this violates RFRA and the First Amendment.  the suit seeks to enjoin the federal government from interpreting or enforcing Title VII in a manner that requires churches or businesses with religious objections to recognize same-sex marriage or extend spousal benefits to same-sex partners, or to require objecting businesses to allow employees to use rest rooms reserved for persons of the opposite biological sex.  It also asks the court to require that any future EEOC guidance on Title VII's application to gay or transgender individuals include a religious exemption. The lawsuit was filed by the same law firm that has recently filed two challenges to Austin, Texas' anti-discrimination ordinances. (See prior posting.) [Thanks to Jeff Pasek for the lead.]

Quebec Appellate Court Allows Litigant To Wear Hijab In Courtroom

A Canadian appellate court has upheld the right of a litigant to wear a hijab in the courtroom.  In El-Alloul v. Attorney General of Quebec, (QCCA, Oct. 3, 2018), the Quebec Court of Appeals held:

[72] Contrary to what the trial judge decided, the provisions of the Regulation of the Court of Québec dealing with the dress code do not prohibit a litigant from wearing a religious head scarf (hijab) in a courtroom when that practice results from a sincerely-held religious belief. It is only where that practice could conflict with an overriding public interest, such as another person’s constitutional rights, that a court may restrict it in a courtroom environment. The provisions of the Regulation of the Court of Québec dealing with court attire, in and of themselves, do not express such an overriding public interest sufficient to restrict the constitutional right to freedom of religious expression....

[91] ... [I]t is not necessary for a trial judge to test the sincerity of religious beliefs and practices each time someone appears in a courtroom wearing religious garments, particularly where such garments are well-known, such as a hijab for a Muslim woman, a Roman collar for a Catholic priest, a kippa for an orthodox Jew, etc. This is also the case for those litigants wearing a pendant or other suitable religious jewelry. Where the religious practice is well known and understood, there is rarely a need to proceed to an inquiry. As rightly noted by Justice Iacobucci in Syndicat Northcrest v. Anselem:  “an intrusive government inquiry into the nature of a claimant’s beliefs would in itself threaten the values of religious liberty”....

[93] Of course, from time to time, there may occur situations which warrant further inquiry; it is incumbent on trial judges to identify these situations by using common sense. An example is the full facial covering, such as the niqab, which raises issues related to the proper identification of litigants, the proper assessment of the credibility of witnesses and the fairness of the judicial proceedings.... 

Lawyer's Daily reports on the decision.

U.N. Experts Decry Prosecution of Baha'is In Yemen

In a press release yesterday, the United Nations Human Rights Office of the High Commissioner has called for the Shia Muslim Houthi rebels who control the city of Sana'a in Yemen to stop the persecution of Baha'is.  The release focuses on the prosecution of 24 individuals, 22 of whom are Baha'is, in Sana's Specialized Criminal Court on charges of apostasy, teaching of the Baha'i faith and espionage. The espionage charges are punishable by death.  UN News reports on the call by U.N. experts.

Second Broad Challenge To Austin's Anti- Discrimination Ordinances Filed

Following a federal court lawsuit filed last week by churches challenging Austin, Texas' ban on employment discrimination (see prior posting), a broader lawsuit has been filed in state court challenging the application of Austin's public accommodation, housing and employment discrimination ordinances to any individual or business that has religious objections to homosexual or transgender behavior.  The complaint (full text) in Texas Values v. City of Austin, (TX Dist. Ct., filed 10/8/2018) asks the court to declare that the ordinances violate Texas Religious Freedom Restoration Act and the Texas Constitution

to the extent that they: (a) prohibit individuals and entities from refusing to hire or retain practicing homosexuals or transgendered people as employees for reasons based in sincere religious belief; (b) prohibit individuals and entities from refusing to rent their property to tenants who are engaged in non-marital sex of any sort, including homosexual behavior, for reasons based in sincere religious belief; (c) prohibit individuals and entities from declining to participate in or lend support to homosexual marriage or commitment ceremonies, for reasons based in sincere religious belief; and (d) prohibit individuals and entities from declining to provide spousal employment benefits to the same-sex partners or spouses of employees, for reasons based in sincere religious belief; (e) prohibit individuals and entities from establishing sex-specific restrooms and limiting them to members of the appropriate biological sex, for reasons based in sincere religious belief.

Austin Statesman reports on the lawsuit.

UK Supreme Court Rules In Favor of Baker Who Refused To Supply Cake Supporting Gay Marriage

In a widely followed case, the United Kingdom Supreme Court today ruled in favor of Christian bakers in a case that became particularly high profile after the U.S. Supreme Court's Masterpiece Cakeshop decision.  In Lee v. Ashers Baking Company Ltd, (UKSC, Oct. 10, 2018), the court framed the question-- which arose under anti-discrimination provisions in the law of Northern Ireland-- as follows:

The substantive question in this case is whether it is unlawful discrimination, either on grounds of sexual orientation, or on grounds of religious belief or political opinion, for a bakery to refuse to supply a cake iced with the message “support gay marriage” because of the sincere religious belief of its owners that gay marriage is inconsistent with Biblical teaching and therefore unacceptable to God.

Rejecting the claim that the bakery engaged in direct discrimination on the basis of sexual orientation, the court said in part:

The reason for treating Mr Lee less favourably than other would-be customers was not his sexual orientation but the message he wanted to be iced on the cake. Anyone who wanted that message would have been treated in the same way.... By definition, direct discrimination is treating people differently....

In a nutshell, the objection was to the message and not to any particular person or persons....

Experience has shown that the providers of employment, education, accommodation, goods, facilities and services do not always treat people with equal dignity and respect, especially if they have certain personal characteristics which are now protected by the law. It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope.

The court also rejected the contention that the bakery had discriminated against Mr. Lee on the basis of his political opinion:

The objection was not to Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage. The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not to the man.... The situation is not comparable to people being refused jobs, accommodation or business simply because of their religious faith. It is more akin to a Christian printing business being required to print leaflets promoting an atheist message.

The court went on to hold that were the bakery required to furnish the cake, it would violate the owners' freedom of conscience and free expression rights protected by Articles 9 and 10 of the European Convention on Human Rights. The court gave a broad interpretation to the rights:

[T]here is no requirement that the person who is compelled to speak can only complain if he is thought by others to support the message. Mrs McArthur may have been worried that others would see the Ashers logo on the cake box and think that they supported the campaign. But that is by the way: what matters is that by being required to produce the cake they were being required to express a message with which they deeply disagreed.

In a Postscript, the court discussed the U.S. Supreme Court's Masterpiece Cakeshop opinion.  The court also issued a Press Summary of the opinion. Irish Times reports on the decision.
[Thanks to Marty Lederman and Seth Tillman via Religionlaw for the lead.] [This post has been updated to eliminate the statement that this case was "analogous" to Masterpiece Cakeshop.]

Alaska Borough's Invocation Policy Held Unconstitutional

KBBI News reports that an Alaska state trial court judge yesterday in Hunt v. Kenai Peninsula Borough (complaint) held that the Kenai Peninsula Borough's invocation policy violates the Establishment Clause of the Alaska Constitution.  The Borough implemented a policy that allows only representatives of pre-approved religious organizations to offer invocations at meetings of the Kenai Peninsula Borough Assembly. The move came after a member of the Satanic Temple offered an invocation that ended with "Hail Satan."

Churches Sue For Exemptions From City's Employment Non-Discrimination Ordinance

A Texas-based organization of churches has filed suit against the city of Austin claiming that the city's non-discrimination ordinance violates member churches' federal and state constitutional rights and Texas' Religious Freedom Restoration Act. The complaint (full text) in U.S. Pastor Council v. City of Austin, (WD TX, filed 10/6/2018), contends that the Austin ordinance which bans employment discrimination on the basis of sex, sexual orientation or gender identity infringes the rights of churches that will not hire women as senior pastors or which will not hire practicing homosexuals or transgendered individuals for any church position.  The only religious exemptions set out in the Austin ordinance are for religious institutions' hiring on the basis of religion.  The complaint declares that objecting churches "rely on the Bible rather than modern-day cultural fads for religious and moral guidance." KXAN News reports on the decision.

EEOC Sues Over Religious Objections To Flu Shot

The EEOC announced last week that it has filed suit against Saint Thomas Rutherford Hospital in Murfreesboro, Tennessee, for requiring an employee of the contractor providing food and environmental services to have a flu shot if the employee wished to continue to work there. The employee refused on religious grounds.  In prior years accommodation was provided by allowing employees to wear a protective mask instead.

Certiorari Denied In Suspension of Oregon Judge Who Refused To Perform Same-Sex Weddings

The U.S. Supreme Court today denied review in Day v. Oregon Commission on Judicial Ethics, (Docket No. 18-112), certiorari denied 10/9/2018). (Order List.)  In the case, the Oregon Supreme Court suspended Judge Day from office without pay for three years on six different charges, one of which was refusing to solemnize same-sex marriages. (See prior posting.) The petition for certiorari included the following among the questions presented:

Whether the Oregon Supreme Court, and certain Oregon ethical rules, violated the Free Exercise and Free Speech clauses of the First Amendment when he declined, on the basis of his sincerely-held religious beliefs,to perform the non-mandatory judicial function of solemnizing same-sex marriages.

Other filings in the case with the Supreme Court are available from the online docket.

Street Preacher's Suit Against Police Survives Dismissal Motion

In Craft v. Wright, (D NM, Sept. 26, 2018), a New Mexico federal district court refused to dismiss a street preacher's 1st and 4th Amendment claims against Hobbs, New Mexico police officials. The court concluded that plaintiff Al-Rashaad Craft was arrested without probable cause for assault and battery and disorderly conduct after an incident described as follows:

[Craft] was standing in the public square ... preaching a religious sermon, recording himself while doing so.... Susan Stone, began yelling at him, using obscenities, and waving a lighter only inches from Craft’s face and in front of the camera that Craft had set up to record his sermon.... Craft ignored the woman, but when he started to read from his Bible, Stone struck Craft in the face with his Bible.... In response, Craft pushed the woman away, and she lost her balance and fell.... Stone got up and continued to shout obscenities at Craft, walking in circles around him, smoking, and waving her lighter; she appeared intoxicated, which Craft later reported to the police.

No Immunity For Order That Kept Plaintiff Away From Her Church

In Krupien v. Ritcey, (MA App., Sept. 26, 2018), a Massachusetts appellate court held that officials of the state-run Chelsea Soldiers' Home do not have qualified immunity in a suit against them under the Massachusetts Civil Rights Act alleging free exercise infringement.  The multi-building campus on which the Home was located included a chapel open to the public.  The lawsuit grew out of a stay-away directive issued during the investigation of a complaint that Teresa Krupien injured her co-worker's wrist while transferring a patient from a bed to a wheelchair. Until modified, the order to keep off the campus prohibited Krupien from attending her church for 37 days, including Christmas. the court concluded that reasonable officials would have known that the order was not narrowly tailored.

Recent Prisoner Free Exercise Cases

In Young v. John, 2018 U.S. Dist. LEXIS 163439 (CD CA, Sept. 24, 2018), a California federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 163470, Aug. 14, 2018) and dismissed an inmate's claim that his free exercise rights were infringed by the chaplain's twice interrupting Nation of Islam services and threatening to cancel them.

In Walker v. Director., Texas Department of Criminal Justice- Correctional Institutions Division, 2018 U.S. Dist. LEXIS 163582 (ED TX, Sept. 24, 2018), a Texas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 164341, Aug. 9, 2018) and dismissed a Muslim inmate's complaint that the prison served inmates observing Ramadan insufficient calories.

In Cary v. Stewart, 2018 U.S. Dist. LEXIS 163938 (ED MI, Sept.25, 2018), a Michigan federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 164358, Aug. 17, 2018), and refused to dismiss a complaint by an inmate who follows Native American Traditional Ways that his possession of herbs is being wrongly restricted in violation of the Free Exercise clause. Various other claims were dismissed.

In Dyer v. Osterhout, 2018 U.S. Dist. LEXIS 163936 (ED MI, Sept. 25, 2018), a Michigan federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 165340, May 8, 2018), and allowed a Jewish female inmate to move ahead with her free exercise challenge to the cancellation of Jewish religious services for several months, as well as her retaliation claim, but dismissed claims under RLUIPA and other 1st, 8th and 14th Amendment claims.

In Rivera v. Raines, 2018 U.S. Dist. LEXIS 164284 (SD IL, Sept. 25, 2018), an Illinois federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 164298, Sept. 5, 2018) and allowed an inmate to move ahead with his free exercise claim alleging that prison officials did not allow Nation of Gods and Earths to conduct religious services.

In Heikkila v. Kelley, 2018 U.S. Dist. LEXIS 163562 ED AR, Sept. 25, 2018), an Arkansas federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 164411, Aug. 27, 2018) and dismissed a Native American inmate's complaint that his request to construct and use a sweat lodge was denied.

In Jones v. Sherman, 2018 U.S. Dist. LEXIS 164649 (EDCA, Sept. 25, 2018), a California federal magistrate judge recommended dismissing an inmate's complaint that he received only one meal for dinner on Yom Kippur, when he was told he would receive two meals.

South African Court Finds Online Postings To Be Hate Speech

In South African Human Rights Commission v. Khumalo, (S. Africa Equality Ct, Oct. 7, 2018), a South African Equality Court held that anti-White statements made on through Facebook and Twitter by Velaphi Khumalo, a youth sports officer, qualify as Hate Speech under Sec. 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000.  One of Khumalo's posts read in part: "I want to cleans this country of all white people. we must act as Hitler did to the Jews." The court summarized its holding:

[S]ection 10 must be understood as an instrument to advance social cohesion. The "othering" of whites or any other racial identity, is inconsistent with our Constitutional values. These utterances, in as much as they, with dramatic allusions to the holocaust, set out a rationale to repudiate whites as unworthy and that they ought deservedly to be hounded out, marginalised, repudiated, and subjected to violence in the eyes of a reasonable reader, could indeed, be construed to incite the causation of harm in the form of reactions by Blacks to endorse those attitudes, reactions by Whites to demoralisation and rachet up the invective by responding in like manner, and thus by such developments, on a large enough scale, derail the transformation of South African Society.

The court enjoined Khumalo from repeating his speech and ordered him to apologize to all South Africans, ordered him to pay costs, and referred the case to the public prosecutor for possible further action. Another action in a different court had already ordered the payment of damages. News24 reports on the decision.

Anti-Gay Marriage Amendment to Romanian Constitution Fails

In Romania, voters have failed to approve a proposed constitutional amendment that would have enshrined a ban on same-sex marriage into the constitution.  As reported by the Washington Post and Reuters, the two-day referendum failed to generate the 30% turnout needed for passage of the measure.  Only 20.4% of the voters cast ballots for the measure that was backed by the Social Democrat Party and the Orthodox church. According to the Post:

The referendum itself did not give voters a choice to vote in favor of allowing same-sex marriage, but only whether the constitutional definition of a “family” should continue to be gender-neutral. Either way, the result would not have had an immediate legal impact, but may have prevented possible future court rulings in favor of same-sex marriage or same-sex civil union.

But as a growing number of government critics urged Romanians to boycott the vote, the same-sex marriage referendum also became a de facto confidence vote over the Social Democratic government. The ruling party has repeatedly shocked domestic and international observers with corruption scandals and attempts to disrupt the rule of law that triggered large protests across the country.

Senate Hearing On International Religious Freedom

On Oct. 2, the U.S. Senate Judiciary committee held a hearing on Threats to Religious Liberty Around the World.  Transcripts of the witnesses' testimony and a video of the entire hearing are available on the committee's website.

Pastor Convicted of Sex Assault During Exorcism

The Minneapolis Star Tribune reports on last week's criminal sexual conduct conviction by a Minnesota state trial court jury of Morris Freeman, pastor of Grace Mountaineer Tabernacle Church. He was charged with sexually assaulting an unconscious woman while claiming to be exorcising a demon from her body. Sentencing is set for Nov. 9.

Recent Articles of Interest

From SSRN:

• Nomi Maya Stolzenberg, From Eternity to Here: Divine Accommodation and the Lost Language of Law, (USC Law Legal Studies Paper No. 18-2 (2018)).
• Patrick McKinley Brennan, Forgiveness No Matter What: Justice and Love Among Equals, (September 2018).
• Ioana Cismas, The Position of the Organization of Islamic Cooperation on Abortion: Not Too Bad, Ugly, or Just Confusing?, (Marie Juul Petersen and Turan Kayaoglu (eds), The Organization of Islamic Cooperation and Human Rights: The Good, the Bad, and the Ugly (University of Pennsylvania Press, 2018 Forthcoming)).
• Dana Phillips, Ishaq v Canada: 'Social Science Facts' in Feminist Interventions, (Windsor Yearbook of Access to Justice, Vol. 35, 2018).
• Joel Harrison, The Problem and the Promise of Religious Liberty, (Forthcoming, Paul Babie, Neville Rochow, and Brett Scharffs (eds), Freedom of Religion or Belief: Creating the Constitutional Space for Other Fundamental Freedoms (Edward Elgar)).
• Aliza Cover, The Pope and the Capital Juror, (Yale Law Journal Forum (Forthcoming)).
• Kyriaki Topidi, The Unfinished Education: Power, Religion and Education Struggles in Multicultural Israel, (Normative Pluralism and Human Rights: Social Normativities in Conflict, ed. by Kyriaki Topidi, Routledge, 2018).
• Muhammad Ahmad, Revisiting the Discourse on Islam and Human Rights, (Kardan Journal of Social Sciences and Humanities, 1:1 (2018), 93-99).

From SmartCILP:

• Albert C. Lin, Pope Francis' Encyclical on the Environment as Private Environmental Governance. 9 George Washington Journal of Energy & Environmental Law 33-44 (2018).
• Alex Deagon, Liberal Secularism and Religious Freedom in the Public Space: Reforming Political Discourse, 41 Harvard Journal of Law & Public Policy 901-934 (2018).
• Symposium, 46 Capital University Law Review, No.. 3, Summer, 2018.
• Responses to Early Drafts of Religious Freedom in an Egalitarian Age. Contributions by Nelson Tebbe, Alan Brownstein, Patricia Marino, Andrew Koppelman. 31 Journal of Civil Rights & Economic Development 1-130 (2018).
• Donald L. Beschle, No More Tiers? Proportionality as an Alternative to Multiple Levels of Scrutiny in Individual Rights Cases, 38 Pace Law Review 384-436 (2018).

Recent Prisoner Free Exercise Cases

In Cary v. Unknown Phol, 2018 U.S. Dist. LEXIS 161038 (WD MI, Sept. 20, 2018), a Michigan federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 161103, July 2, 2018) and dismissed a Native American inmate's complaint that he was deprived of his medicine bag while he was in administrative segregation.

In Williams v. Delaware County Board of Prison Inspectors, 2018 U.S. Dist. LEXIS 161342 (ED PA, Sept. 20, 2018), a Pennsylvania federal district court allowed a Muslim inmate to move ahead with his complaint regarding access to religious services, inability to wear his kufi outside his cell, and inability to speak with an Imam.

In California Department of State Hospitals v. A.H., 2018 Cal. App. LEXIS 838 (CA App., Sept. 21, 2018), a California appellate court rejected a religious defense to an order for involuntary administration of antipsychotic medication.

In Keystone v. Ponton, 2018 U.S. Dist. LEXIS 161505 (WD VA, Sept. 21, 2018), a Virginia federal district court dismissed a claim by a Mennonite inmate that he did not receive a diet compatible with his religious beliefs.

In Stewart v. Jackson, 2018 U.S. Dist. LEXIS 162473 (ND IN, Sept. 21, 2018), an Indiana federal magistrate judge allowed an inmate to file an amended complaint alleging religious discrimination when the chaplain refused to take him off the halal diet after he informed the chaplain that he had diabetes and could not continue Ramadan.

In Firewalker-Fields v. Lee, 2018 U.S. Dist. LEXIS 162565 (WD VA, Sept. 24, 2018), a Virginia federal district court allowed a Sunni Muslim inmate to move ahead with his complaint that Muslim inmates in segregation are not allowed to congregate for prayer, even by television programming, on Fridays and can only observe televised nondenominational Christian programs on Sundays.

In Gonzalez v. Rivera, 2018 U.S. Dist. LEXIS 162371 (ED AR, Sept. 21, 2018), an Arkansas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 163054, Aug. 17, 2018) and dismissed an inmate's complaint that he was not permitted to attend a Catholic Easter meal and was not given meal provisions for a Good Friday fast.

Recent Articles of Interest

From SSRN:

• Faisal Kutty, Blasphemy and Apostasy 'Laws' in the Muslim World: A Critical Analysis, (Research Handbook on Islamic Law and Society (Nadirsyah Hosen, ed., Forthcoming)).
• Bruce Ledewitz, The Resurrection of Trust in American Law and Public Discourse, (Duquesne University Law Review, Vol. 56, 2018; Duquesne University School of Law Research Paper No. 2018-16).
• D. A. Jeremy Telman, Originalism as Fable (Reviewing Eric Segall, Originalism as Faith), (August 29, 2018).
• Maliheh Zare, Creating Laws for Economic Growth in a Hybrid Islamic Legal System, (Southern California Interdisciplinary Law Journal, Forthcoming).
• Gila Stopler, How Could Religious Liberty Be a Human Right: A Reply to Andrew Koppelman, (Forthcoming in 16(3) INT’L J. CONST. L.).
• Joni Hersch & Blair Bullock, The Law and Economics of Employment Discrimination Law, (Vanderbilt Law Research Paper No. 18-41 (2018)).
• Giancarlo Anello, The Phenomenology of Arnaldo Bertola: Legal Categories, Cognitive Interests, Religious Habits, and Their Interaction into the Life of an Italian Colonialist, (July 1, 2018).
• Susanne Lilian Gössl, Open Issues in European International Family Law: Sahyouni, 'Private Divorces' and Islamic Law Under the Rome III Regulation, (The European Legal Forum 2017, pp. 68-74).
• Katie R. Eyer, Statutory Originalism and LGBT Rights, (Wake Forest Law Review, Forthcoming).
• Maliheh Zare, Creating Laws for Economic Growth in a Hybrid Islamic Legal System, (Southern California Interdisciplinary Law Journal, Forthcoming).

Dean's Contract Claim Not Barred By Ministerial Exception

In Sumner v. Simpson University, (CA App., Sept. 25, 2018), a California appellate court summarized its holding in a case brought by the former dean of Tozer Seminary who was terminated for insubordination:

[T]he trial court correctly concluded that Simpson University is a religious organization and that Sumner is a minister for purposes of the ministerial exception, but that her contract cause of action is not foreclosed by the ministerial exception. Defendants have failed to show that resolution of Sumner’s contract claim would excessively entangle the court in religious matters. However, her tort causes of action are part and parcel of the actions involved in her termination, and are therefore barred by the ministerial exception.

Suit Against Vatican Seeks Release of Names of Sex Offenders

A lawsuit was filed this week in a California federal district court seeking an injunction to require the Vatican to release to the public and law enforcement authorities the names of perpetrators involved in more than 3,400 credible cases worldwide of sexual misconduct with children, as well as the names of those previously convicted.  The complaint (full text) in Vega v. Holy See, (CD CA, filed 10/3/2018), charges that the Vatican has created a public nuisance, saying in part:

Defendant Holy See has created and exposed the public to these unsafe conditions continuously and on an ongoing basis before and since the time that Plaintiff was sexually abused and has continued to expose the public to that unabated threat until the present day.

The complaint also charges private nuisance, violation of California's Business and Professions Code, as well as violation of customary international law of human rights. Washington Post reports on the lawsuit.

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.