9th Circuit Hears Oral Arguments In Challenge To Expanded Contraceptive Coverage Exemptions

Last week, the U.S. 9th Circuit Court of Appeals heard oral arguments in State of California v. Little Sisters of the Poor. (Video of full oral arguments). The case involves the appeal by a religious order (as an intervenor) of a nationwide preliminary injunction that a California federal district court issued blocking the Trump administration's Interim Final Rules expanding religious and moral exemptions from the Affordable Care Act's contraceptive coverage mandate. (See prior posting.) According to Courthouse News Service,  two of the three judges on the panel indicated during oral argument that they were inclined to lift the injunction. [Thanks to Blog from the Capital for the lead.]

UN Committee Says France's Anti-Niqab Law Violates Free Exercise Rights

The United Nations Human Rights Committee yesterday issued a press release on two decisions issued Oct. 22:

In two landmark decisions, the United Nations Human Rights Committee found that France violated the human rights of two women by fining them for wearing the niqab, a full-body Islamic veil....

The Committee found that the general criminal ban on the wearing of the niqab in public introduced by the French law disproportionately harmed the petitioners’ right to manifest their religious beliefs, and that France had not adequately explained why it was necessary to prohibit this clothing. In particular, the Committee was not persuaded by France’s claim that a ban on face covering was necessary and proportionate from a security standpoint or for attaining the goal of “living together” in society. 

The decisions (available only in French) are Hebbadj v. France and Yaker v. France.

Indian Supreme Court's Ruling On Temple Access By Women Meets Resistance

As previously reported, last month India's Supreme Court struck down a ban on women between the age of 10 and 50 years from entering the Sabarimala Temple.  However, yesterday's New York Times reports that implementing the Court's ruling has been difficult:

When the temple reopened for six days on Wednesday, for the first time since the court’s decision, the pilgrimage path became a kind of conflict zone, pitting traditionalists against police officers who vowed to enforce the law and protect any woman who wished to visit.

At least 12 women attempted the journey. Each was met with a mob that variously shouted in her face, pummeled the police, set vehicles on fire, hurled rocks and blocked the steep, three-mile trail leading to the temple by lying on its slippery stones. All of the women were forced to turn back. One was so overwhelmed that she fainted.

Law Firm Releases Report On Abusive Priests In California

A law firm that is suing to obtain release by three Catholic dioceses in the San Francisco Bay area of the names of all clergy accused of sexual misconduct yesterday released its own report. The 66-page report lists the names and provides background information on 212 accused priests. (Full text of report.)  The report was compiled from various public sources of information. Fox 2 News has reactions to the report.

Families of WW II Vets May Move Ahead With Suit To Recover Remains

In Patterson v. Defense POW/ MIA Accounting Agency, (WD TX, Oct. 23, 2018), a Texas federal district court refused to dismiss substantive and procedural due process, and free exercise and RFRA claims by the families of seven American Army service members who died in the Philippines in World War II. The families sought recovery of the remains of their veterans so they can be properly buried.  The remains are interred as "Unknowns" in the Manila American Cemetery, but the families believe that they can now identify in which of the Unknowns' graves the seven service members are buried. The court said in part:

Plaintiffs allege that the government’s refusal to return allegedly identified remains to the appropriate families for burial “shocks the conscience.” ... Plaintiffs argue that their allegations that the remains are in fact identified, taken as true, render Defendants’ withholding of the remains a substantive due process violation.... At this stage, the Court finds that Plaintiffs sufficiently allege a substantive due process violation....

[G]iven Plaintiffs’ private interests regarding their family members’ remains and the alleged erroneous deprivation of an opportunity to be heard, the Court finds that, at this stage, Plaintiffs sufficiently allege a procedural due process violation that will benefit from further fact development.....

Plaintiffs allege that their free exercise of their sincerely held religious tradition of burial has been burdened because the government refuses to return the remains of their relatives.... These allegations are plausible on their face and meet the pleading requirements at this stage of litigation for both a Free Exercise claim and a RFRA claim

Supreme Court Review Sought In Indiana Abortion Restrictions Case

On Oct. 12, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Commissioner of the Indiana State Department of Health v. Planned Parenthood of Indiana and Kentucky, Inc., (cert. filed, Oct. 12, 2018).  The petition presents two questions for the Court's review:

1. Whether a State may require health care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation.

2. Whether a State may prohibit abortions motivated solely by the race, sex, or disability of the fetus and require abortion doctors to inform patients of the prohibition.

The 7th Circuit in an opinion (full text) in April held the provisions of Indiana's abortion laws unconstitutional. Rewire News reports on the petition for review.

Cert. Filed By Catholic Order Objecting To Pipeline Approval

Last Friday, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, (cert. filed 10.19/2018).  In the case, the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of a challenge under the Religious Freedom Restoration Act to FERC's approval of a pipeline project. The natural gas pipeline runs through land owned by an order of Catholic nuns whose religious beliefs require them to preserve the earth. Developers were authorized to acquire land for the pipeline by eminent domain. Adorers of the Blood of Christ issued a press release announcing the filing of the petition for review.

Cert. Filed In Oregon Wedding Cake Case

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Klein v. Oregon Bureau of Labor and Industries, (cert. filed 10/22/2018). In the case, the Oregon Court of Appeals agreed with the state Bureau of Labor and Industries that Sweetcakes bakery violated the state's public accommodation law when it refused to design and create a wedding cake for a same-sex wedding. First Liberty issued a press release announcing the filing of the petition for review.

In Chile, Court Awards Damages In Priest Sexual Abuse Case As Investigations Continue

In Chile, the Ninth Chamber Court of Appeals in Santiago has awarded the equivalent of $670,000(US) to three victims of sex abuse by former Catholic priest  Fernando Karadima who was removed from the priesthood by Pope Francis a few weeks ago.  According to  yesterday's Santiago Times, the award against the Archdiocese of Santiago comes in a suit in which Cardinals Francisco Javier Errázuriz and Ricardo Ezzati are accused of covering up Karadima's abuses. The Santiago Times adds:

According to a cadastre published by the Chilean National Prosecutor’s Office at the end of August, there are currently 119 investigations in progress against 167 persons related to the Church and 178 victims quantified, 79 of whom were minors when the events occurred.

Meanwhile, Pope Francis has accepted the resignation of five Chilean bishops, after last May the 34 bishops of the country presented their resignation en bloc to the pontiff in the Vatican after acknowledging that they had committed “serious errors and omissions”.

Australia's Prime Minister Issues Apology To Victims of Institutional Child Sex Abuse [UPDATED]

As reported by The Telegraph, Australia's Prime Minister Scott Morrison today delivered a speech in Parliament (full text of remarks) apologizing for the government's lack of response to child sex abuse in the Catholic Church and other religious and secular institutions.  The emotional apology on behalf of the nation to victims and their families came after a five-year investigation by a government commission. (See prior posting). The Prime Minister said in part:

Today, we confront a question too horrible to ask, let alone answer. Why weren’t the children of our nation loved, nurtured and protected? Why was their trust betrayed? Why did those who know cover it up? Why were the cries of children and parents ignored? Why was our system of justice blind to injustice? Why has it taken so long to act? Why were other things more important than this, the care of innocent children? Why didn’t we believe? Today we dare to ask these questions, and finally acknowledge and confront the lost screams of our children. While we can’t be so vain to pretend to answers, we must be so humble to fall before those who were forsaken and beg to them our apology.

The Prime Minister also announced that a National Redress Scheme has begun:

The scheme will provide survivors with access to counselling and psychological services, monetary payments, and, for those who want one – and I stress for those who want one – a direct personal response from an institution where the abuse occurred.

[Updated to clarify that the Royal Commission's investigation covered other institutions as well as the Catholic Church.]

Recent Articles of Interest

From SSRN:

• Paul T. Babie & Joshua Neoh, A Statement on Inclusive Law and Religion, (39 Adelaide Law Review 203 (2018).
• David Hughes, The United States Embassy in Jerusalem: Does Location Matter?, (50 Questions of International Law 15 (2018).
• James M. Oleske, Free Exercise (Dis)Honesty, (Wisconsin Law Review, Forthcoming 2019).
• Clare Huntington, Abortion Talk, (Michigan Law Review, 2019).
• Dalhatu Sani Yola, Hate Speech in Nigeria: Opportunity in Crisis, (International Journal of Crime, Law and Social Issues, Vol. 4, No. 2 (2017).
• Eric Franklin Amarante, Unregulated Charity, (August 6, 2018).

From Academia.edu:

• Deborah Thebault & Lena Rose, What kind of Christianity?  A v Switzerland, (Oxford Journal of Law and Religion, 2018).

HHS Is Considering Eliminating Title IX Protection For Transgender Indivudials

The New York Times reports today that the Trump Administration is proposing another step to eliminate anti-discrimination protection for transgender individuals:

Now the Department of Health and Human Services is spearheading an effort to establish a legal definition of sex under Title IX, the federal civil rights law that bans gender discrimination in education programs that receive government financial assistance, according to a memo obtained by The New York Times....

“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the department proposed in the memo, which was drafted and has been circulating since last spring. “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

Recent Prisoner Free Exercise Cases

In Brown v. State of Washington, (9th Cir.,, Oct. 15, 2018), the 9th Circuit held that the district court properly dismissed an inmate's 1st Amendment and RLUIPA claims regarding burning of his hair.

In Ahdom v. Etchebehere, (9th Cir., Oct. 18, 2018), the 9th Circuit affirmed dismissal of an inmate's complaint that he was prevented from participating in Ramadan meals.

In Shepherd v. Smith, 2018 U.S. Dist. LEXIS 167510 (ND NY, Sept. 28, 2018), a New York federal district court rejected a magistrate's recommended sua sponte dismissal (2018 U.S. Dist. LEXIS 100012, June 13, 2018) of a Rastafarian inmate's free exercise claim regarding dreadlocks.

In Purifoy v. Williams, 2018 U.S. Dist. LEXIS 170795 (WD AR, Oct. 3, 2018), an Arkansas federal district court dismissed complaints by a Christian inmate of denial of pastoral visits, failure to receive a religious calendar and denial of church services while in solitary confinement.

In Barnes v. Fulton County Detention Center, 2018 U.S. Dist. LEXIS 170868 (WD KY, Oct. 2, 2018), a Kentucky federal district court dismissed a Muslim inmate's complaint regarding delay in receiving Ramadan meals and his prayer time.

In Resto-Otero v. Mohammad, 2018 U.S. Dist. LEXIS 171852 (ND NY, Oct. 3, 2018), a New York federal magistrate judge recommended that a Muslim inmate be allowed to move ahead with his suit charging a failure to provide him with religiously appropriate meals during Ramadan.

In Wright v. County of Mecosta, 2018 U.S. Dist. LEXIS 173876 (WD MI, Oct. 10, 2018), a Michigan federal magistrate judge dismissed an inmate's complaint that his jail meals failed to satisfy his religious dietary needs.

In Lambright v. Indiana Department of Corrections, 2018 U.S. Dist. LEXIS 175089 (ND IN, Oct. 11, 2018), an Indiana federal district court allowed a Jewish inmate to move ahead with a damage claim for denial of a kosher diet for 3 months, and an injunctive action to obtain Jewish religious services.

In Blade v. Stinson, 2018 U.S. Dist. LEXIS 173929 (WD LA, Oct. 9, 2018), a Louisiana federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 175062, Sept. 18, 2018) and dismissed a Muslim inmate's complaint regarding his being served pork sausage and not being transferred to a pork-free facility, as well as his retaliation claim.

In McLaughlin v. Lee, 2018 U.S. Dist. LEXIS 173926 (WD LA, Oct. 9, 2018), a Louisiana federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 175061, Sept. 17, 2018) and dismissed an inmate's complaint regarding lack of Muslim religious services at his former institution, as well as complaints regarding Ramadan and retaliation.

In Cantey v. Martuscello, 2018 U.S. Dist. LEXIS 175302 (ND NY, Oct. 10, 2018), a New York federal magistrate judge recommended dismissing a Nation of Islam inmate's complaints regarding celebration of Saviour's Day, Jumu'ah services and showers before them, and cancellation of a study class.

In Covington v. Perry, 2018 U.S. Dist. LEXIS 176362 (ED NC, Oct. 15, 2018), a North Carolina federal district court granted summary judgment to a Muslim inmate on his RLUIPA claim for a halal compliant diet and the parties were directed to present a joint or individual proposed remedial orders.

No Free Exercise Violation In Ban of Patron From City Swim Club

In White v. Simpson, (WD AR, Oct. 10, 2018), an Arkansas federal district court dismissed plaintiff's claims that his free exercise rights were infringed when he was banned from the premises of a city aquatic club.  The ban was based on his distracting lifeguards and his sexually harassing them verbally.  Plaintiff claimed that his rights were infringed because he was carrying on religious discussions with one of the lifeguards and gave the lifeguard a gift with a "Jesus loves you" message in it. The court found that none of the defendants knew of the religious nature of the discussions, so there was no evidence that he was banned because of his religion or the content or viewpoint of is speech.

House of Lords Debates Religious Intolerance In UK

On Wednesday in Britain the House of Lords engaged in an extensive debate on religious intolerance and prejudice in the United Kingdom. (Full text of the Parliamentary debate.) Lord Hain described the seriousness of the problem in Britain:

We have grown used to pogroms against minorities at various stages in our history as a country: against Jews intermittently and sometimes continuously over the millennia; against the Irish in the nineteenth century; against Jews again in the 1930s; against black and Asian Britons from the late 1950s until today; and against Muslims in the first two decades of this century. But what is entirely novel today is a toxic convergence of attacks on Jewish, black and Muslim British citizens all at the same time. I am not aware of any period in our history when this has occurred before. It is deadly serious, with many of our citizens living in fear or terror simply because of their religion, race or skin colour. This is not just scandalous, it is criminal.

Lord Bourne said in part:

We have asked the Law Commission to review the coverage and approach of current hate crime legislative provision. We must be clear: when someone has perpetrated a hate crime, they will be held accountable for it. Later this year, we will launch a wide-ranging national hate crime public awareness campaign publicly to address hate crime. The refresh commits us to updating the True Vision website to make it easier to use and to ensure it remains the key central platform for all hate crime reporting. We are working with the National Police Chiefs’ Council to provide hate crime training for all call handlers in order to ensure an appropriate response from the first contact, and we are creating the challenging hate crime support group—a network of organisations who share resources, skills and best practice.

Law & Religion UK also reports on the debate.

Campus Pro-Life Speech Case Settled

An ADF press release reports that a settlement has been reached in Ratio Christi of Kennesaw State University v. Olens.  In the suit, a student group charged that the Georgia college limited its pro-life display to a small area set aside as a "speech zone." (See prior posting).  Under the settlement agreement, the school will eliminate its speech zone and students will be free to speak in all outdoor areas of the campus.  The school will also pay plaintiffs' attorneys' fees in the amount of $20,100.

Plagiarism Is A Problem In Christian Publishing World

RNS reports on the problem of plagiarism in the Christian publishing world as earlier this  month a settlement was reached in which best-selling Christian author Christine Caine was sued for lifting portions of author Cary Scott's 2015 book "Untangled" for use in two of her books. According to RNS:

Our clamoring after Christian “rock stars” — paired with the sheer volume of content those in the spotlight are expected to produce — has created the perfect environment for slipshod attribution and theft of content from lesser-known authors.

DOJ Investigates Clergy Sexual Abuse in PA, NY; New Civil Suit In Illinois

CNN reported yesterday that the U.S. Department of Justice has issued subpoenas to seven of the eight Catholic dioceses in Pennsylvania in the wake of a grand jury report on clergy sex abuse since 1947. (See prior posting).  Separately, the Justice Department reportedly subpoenaed documents relating to pornography, transporting victims across state lines and cell phone and social media use from the Buffalo diocese in late May.

Meanwhile AP reports that a civil suit was filed yesterday in Illinois federal district court against all six dioceses in Illinois and the Catholic Conference of Illinois charging a continued cover-up of clergy sexual abuse.   Specific instances of child sexual abuse are charged against three of the dioceses. The suit seeks damages as well as the public disclosure of all priests that have been accused of sexual molestation.

Four New Holiday Season Postage Stamps Issued

The U.S. Postal Service this month has issued four new stamps for the December holiday season: a Madonna and Child Christmas stamp; a classic Santa Claus Christmas stamp; a Hanukkah stamp (issued jointly with Israel Post); and a Kwanzaa stamp. JTA has more details on the joint Haukkah stamp.

Washington Archdiocese Posts List of Clergy Accused of Sexual Abuse of Minors Since 1948

Catholic News Service reports that the Archdiocese of Washington, DC this week posted on its website the  names of 28 former clergy who have been credibly accused of sexual abuse of minors since 1948. (Full list). The Archdiocese says that there have been no reported incidents in almost 20 years.  According to CNS:

The list was assembled as part of a comprehensive review of the archdiocese’s archives ordered in 2017 by Cardinal Donald W. Wuerl as Washington’s archbishop.

Cardinal Wuerl has recently resigned amid controversy over his handling of sex abuse cases in the 1980's and 1990's when he headed the Diocese of Pittsburgh. (See prior posting.)

Two Dioceses Sued Over Transfer of Known Sex Abuser Priest

Tampa Bay Times reported yesterday on a lawsuit filed against the Catholic Diocese of St. Petersburg (Florida) and the Long Island, New York Diocese of Rockville Centre. The suit was filed by Mark Cattell who says that as a 9-year old in 1981 he was sexually abused multiple times by a priest, Robert Huneke, after Huneke was transferred to Christ the King Church in Tampa from a church in Long Island where he had sexually abused a teenager over a number of years.

8th Circuit Oral Arguments In Wedding Videographers' Refusal To Serve Same-Sex Couples

The U.S. 8th Circuit Court of Appeals on Monday heard oral arguments (audio of full oral arguments) in Telescope Media Group v. Lindsey.  In the case,  a Minnesota federal district court rejected a challenge to a provision of the Minnesota Human Rights Act that requires plaintiffs, owners of a videography business that plans to offer wedding videos, to serve same-sex couples. (See prior posting.) Minneapolis Star Tribune reports on the 8th Circuit oral arguments.

Lawsuit Filed In Turkey Over Attempt To Give Independence To Ukrainian Orthodox Church

As reported yesterday by UrduPoint, in Turkey, the Patriarchate of Constantinople has taken steps to grant independent status to the Ukrainian Orthodox Church, purporting to remove it from the jurisdiction of the Moscow Patriarchate, and to remove the anathema from the leaders of two other separatist Orthodox churches in Ukraine.  The Kiev archdiocese was transferred to the Moscow Patriarchate in 1686.  In response, the Turkish Orthodox Church has filed a lawsuit contending that under the Lausanne Peace Treaty of 1923, the jurisdiction of the Patriarch of Constantinople is limited to religious services of the Greeks living in Turkey.  According to a follow-up article in UrduPoint, the Russian Orthodox Church charges that the move by Constantinople was engineered by the United States and other Western countries to create tension between Kiev and Moscow. In response to Constinople's action, the Russian Orthodox Church has cancelled its Eucharistic communion with the Constantinople Patriarchate.

Michigan Appeals Court OK's State Funding For Incidental Costs of Private Schools [UPDATED]

Detroit News and Michigan Radio report on a 2-1 decision yesterday by the Michigan Court of Appeals that allows the state to reimburse private and parochial schools for the cost of complying with state health and safety mandates that are incidental to teaching and providing educational services. At issue is whether a budget appropriation of $2.5 million to reimburse private schools for the cost of fire drills, health requirements and safety inspections violates the state constitution's ban on use of state funds for private schools. Michigan's Blaine Amendment, inserted in the state constitution in 1970, bars public funds for "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school". (See prior related posting.)

Yesterday's majority opinion from Judges Murphy and Letica ruled:

The Legislature may allocate public funds to reimburse nonpublic schools for actual costs incurred in complying with state health, safety, and welfare laws. But only if the action or performance that must be undertaken in order to comply with a health, safety, or welfare mandate (1) is, at most, merely incidental to teaching and providing educational services to private school students (non-instructional in nature), (2) does not constitute a primary function or element necessary for a nonpublic school to exist, operate, and survive, and (3) does not involve or result in excessive religious entanglement.

Judge Gleicher dissenting wrote in part:

The public money directly and indirectly assists nonpublic schools in keeping their doors open and meeting their payroll, It is unconstitutional for that simple reason.

When the full text of the opinion becomes available online, this post will be updated with links to it.

UPDATE: Here is the majority opinion and the dissent in Council of Organizations and Others for Education About Parochiaid v. State of Michigan, (MI App., Oct. 16, 2018).

Reported Hate Crimes In England and Wales Show Increase

Britain's Home Office yesterday issued a report (full text) Hate Crime, England and Wales, 2017/18.  It reports that there were 94,098 hate crime offenses recorded by police. This is an increase of 17% over the previous year, but this is seen as largely caused by improvements in police reporting. The largest increase (40%) was hate crimes directed at a person because of religion.  Overall, 9% of the hate crimes were religion based, while 76% were racial.  52% of the hate crimes that targeted religion were aimed at Muslims. 12% were aimed at Jews; 5% at Christians. 21% were listed as religion based hate crimes with the targeted religion unknown. JTA reports on the data.

Pakistani Judges Receive Threats Over Upcoming Blasphemy Decision

According to DAWN, last week, a 3-judge panel of Pakistan's Supreme Court heard the appeal in Aasia Bibi's blasphemy case.  Bibi, a Christian, had been sentenced to death by lower courts. (See prior posting). After the hearing, the Supreme Court enjoined electronic and print media from discussing or commenting on the case until the Court's decision is handed down. Christian Post reported yesterday, however, that Supreme Court justices are receiving threats of death if they grant clemency to Bibi. The threats are coming from "hardline Muslim extremists affiliated with political parties like Tehreek-e-Labaik Pakistan."  TLPis threatening paralyzing nationwide sit-in protests if Bibi is freed. Leaders of Pakistan's Red Mosque movement have petitioned the court to place Bibi on a no-fly sit to prevent her from taking advantage of asylum in another country if she is freed.

Myanmar Military Incited Rohingya Genocide Through Fake Facebook Accounts

In an article posted yesterday, the New York Times reports that the genocide and ethnic cleansing directed at Rohingya Muslims in Myanmar was incited online by Myanmar military personnel:

Members of the Myanmar military were the prime operatives behind a systematic campaign on Facebook that stretched back half a decade and that targeted the country’s mostly Muslim Rohingya minority group..... The military exploited Facebook’s wide reach in Myanmar, where it is so broadly used that many of the country’s 18 million internet users confuse the Silicon Valley social media platform with the internet. Human rights groups blame the anti-Rohingya propaganda for inciting murders, rapes and the largest forced human migration in recent history.

While Facebook took down the official accounts of senior Myanmar military leaders in August, the breadth and details of the propaganda campaign — which was hidden behind fake names and sham accounts — went undetected. The campaign ... included hundreds of military personnel who created troll accounts and news and celebrity pages on Facebook and then flooded them with incendiary comments and posts timed for peak viewership.

Atlanta Agrees To $1.2M Settlement With Fired Fire Chief

A $1.2 million settlement has been reached in Cochran v. City of Atlanta, Georgia, the suit brought by a former Atlanta fire chief who was dismissed from his position over a book which he wrote.  The book, designed as a religious guide for men, called those who engage in extramarital or in homosexual sex "wicked" and "ungodly." A court found the city's pre-clearance rules for outside employment unconstitutional. (See prior posting.) The Atlanta Journal-Constitution reported that the settlement amount was approved by an 11-3 vote at Atlanta City Council meeting Monday.

Recent Prisoner Free Exercise Cases

In Hairston v. Emeaghara, 2018 U.S. Dist. LEXIS 167839 (SD OH, Sept. 28, 2018), an Ohio federal magistrate judge recommended dismissing an inmate's complaint that the chaplain refused to provide weekly church services for the segregation unit.

In Brakeall v. Stanwick-Klimek, 2018 U.S. Dist. LEXIS 167925 (D SD, Sept. 28, 2018), a South Dakota federal district court, in an opinion largely focused on other issues, allowed an inmate to move ahead with claims that he has been prevented from participating in Jewish holiday observances and that there is no kosher meal option.

In Baker v. Davis, 2018 U.S. Dist. LEXIS 167027 (ED TX, Sept. 28, 2018), a Texas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 167961, Aug. 20, 2018) and dismissed a Muslim inmate's various complaints relating to meals, prayer oil, study groups, religious services and grooming policies.

In Rivera v. Kernan, 2018 U.S. Dist. LEXIS 168309 (ND CA, Sept. 28, 2018), a California federal district court allowed an Odinist inmate that authorities refused or delayed approval for celebration or collection of funds for religious holidays.

In Rials v. Avalos, 2018 U.S. Dist. LEXIS 168323 (ND CA, Sept. 28, 2018), a California federal district court dismissed, in part on qualified immunity grounds, a complaint by a Moorish Science Temple of America adherent that he is not allowed to carry a picture of the Holy Prophet Noble Drew Ali outside of his cell.

In Sterling v. Sellers, 2018 U.S. Dist. LEXIS 168555 (MD GA, Sept. 29, 2018), a Georgia federal district court dismissed a Muslim inmate's complaint that congregational prayers were not permitted in the prison day room, but allowed plaintiff to move ahead with his complaint that he was not permitted to participate in the Eid feast.

In Jefferson v. Wall, 2018 U.S. Dist. LEXIS 168662 (D RI, Sept. 28, 2018), a Rhode Island federal district court dismissed, on res judicata grounds, a Muslim inmates complaint that he was not permitted to wear his kufi during Ramadan Iftar meals.

In Barnes v. Fedele, 2018 U.S. Dist. LEXIS 170218 (WD NY, Oct. 2, 2018), a New York federal district court dismissed on qualified immunity grounds a suit by an inmate who registered his religion as Jewish who complained that he was not permitted to wear a Tsalot-Kob under a policy which, at that time approved this as religious head wear only for Rastafarians.

In Mitchell v. Davey, 2018 U.S. Dist. LEXIS 170317 (ED CA, Oct. 2, 2018), a California federal magistrate judge recommended allowing a Muslim inmate to move ahead against certain defendants on his complaint that for parts of 2015, including Ramadan, he could not obtain meals consistent with his religious beliefs, and that meals meeting Muslim standards are not available.

Certiorari Denied In Suit Against Palestinian Authority for Shooting of Jewish Worshipers In West Bank

The U.S. Supreme Court today denied review in Livnat v. Palestinian Authority, (Docket No. 17-508, certiorari denied 10/15/2018). (Order List). In the case the D.C. Circuit Court of Appeals held (full text of decision) that the the 5th Amendment's due process clause precludes U.S. courts from asserting jurisdiction in a suit by the families of Jewish worshipers who were shot in the West Bank territories of Israel by Palestinian Authority armed guards at the holy site of Joseph’s Tomb.

Recent Articles and Book of Interest

From SSRN:

• Pryor, C. Scott, Revisiting Unconscionability: Reciprocity and Justice, (September 14, 2018).
• Cyra Akila Choudhury, Property Lawfare: Historical Racism and Present Islamophobia in Anti-Mosque Activism, (Florida International University Legal Studies Research Paper No. 18-15 (2018).
• Manoj Mate, Constitutional Erosion and the Challenge to Secular Democracy in India, (Constitutional Democracy in Crisis? (Mark Graber, Sanford Levinson, Mark Tushnet, eds., Oxford University Press, 2018 Forthcoming)).
• Marie T. Reilly, Catholic Dioceses in Bankruptcy, (Penn State Law Research Paper No. 10-2018 (2018).
• Josh Blackman, The Travel Bans, (Cato Supreme Court Review 29 (2018)).
• Martha F. Davis & Risa Kaufman, Truth is Truth: U.S. Abortion Law in the Global Context, (American Constitution Society Issue Brief, August 2018).
• Clarke Forsythe, A Draft Opinion Overruling Roe v. Wade, (Georgetown Journal of Law & Public Policy, Vol. 16, No. 445, 2018).

From SmartCILP:

• Symposium on Nelson Tebbe's Religious Freedom in an Egalitarian Age,  Contributions by Nelson Tebbe, Chad Flanders, Laura S. Underkuffler, Carlos A. Ball. 31 Journal of Civil Rights & Economic Development 131-245 (2018).

New Book:

• Rex Ahdar (ed.), Research Handbook on Law and Religion, (Edward Elgar Publishing, Sept. 2018).

China Is Engaged In Mass Detention of Muslims

A New York Times story posted Saturday reports that the Chinese government is engaged in mass detention of Muslims:

In a campaign that has drawn condemnation around the world, hundreds of thousands of Uighurs and other Muslim minorities have been held in “transformation” camps across Xinjiang for weeks, months or years at a time, according to former inmates and their relatives.

Beijing says the facilities provide job training and legal education for Uighurs and has denied carrying out mass detentions.

But speeches, reports and other documents online offer a clearer account than previously reported of how China’s top leaders set in motion and escalated the indoctrination campaign, which aims to eradicate all but the mildest expressions of Islamic faith and any yearning for an independent Uighur homeland.

HHS Grants to Catholic Bishops Conference Upheld

In ACLU of Northern California v. Azar, (ND CA, Oct. 11, 2018), a California federal district court granted summary judgment to the government in the ACLU's Establishment Clause challenge to HHS's choice of the U.S. Conference of Catholic Bishops as a grantee under the Unaccompanied Alien Children Program  (UACP) and the Trafficking Victim Assistance Program (TVAP).  The ACLU focused particularly on the refusal of sub-grantees to directly refer clients for abortion or contraception services. However children in custody in UACP who sought an abortion were transferred to a secular provider that did not have objections, and to an independent medical provider when contraception services were sought. The Bishops' Conference ultimately removed language from its documents that would have prevented TVAP sub-grantees from providing abortion or contraception services. The court held in part:

The government’s grant relationship and interactions with the Bishops Conference in the record in this litigation are not sufficiently likely to be perceived as an endorsement of the Conference’s religious beliefs....

The record here shows that the government’s UACP and TVAP grant money was used to provide general secular care services to unaccompanied minors and that no government money was used for proselytization, religious education, religious facilities, religious items, religious literature, or other religious activity. There is no evidence that the ACLU, or any taxpayer, was forced to monetarily subsidize the Bishops Conference’s religious beliefs. To the extent that the Conference declined to provide unaccompanied minors with access to abortion or contraception services, it did not use any government tax money to do so, and thus its actions are not properly the subject of a taxpayer-standing suit.

Pope Francis Accepts Archbishop Wuerl's Resignation

Crux reports that on Friday Pope Francis accepted the resignation of Cardinal Donald Wuerl as Archbishop of Washington after controversy over Wuerl's handling of sex abuse cases in the 1980's and 1990's when he headed the Pittsburgh Diocese.  In a letter from the Pope (full text) accepting Wuerl's resignation, Pope Francis asked him to stay on as Apostolic Administrator until his successor is appointed.  In the letter to Wuerl, the Pope said in part:

You have sufficient elements to “justify” your actions and distinguish between what it means to cover up crimes or not to deal with problems, and to commit some mistakes. However, your nobility has led you not to choose this way of defense. Of this, I am proud and thank you.

In this way, you make clear the intent to put God’s Project first, before any kind of personal project, including what could be considered as good for the Church. Your renunciation is a sign of your availability and docility to the Spirit who continues to act in his Church.

Turkey Releases American Pastor

The Washington Post reported yesterday:

American pastor Andrew Brunson flew out of Turkey late Friday after a Turkish court convicted him of aiding terrorism but sentenced him only to time served. His release came one day after U.S. officials said a deal had been reached with Turkey’s government to secure his freedom....

The case of the evangelical Christian preacher caught up in Turkey’s post-coup security sweep had garnered attention at the highest levels of the U.S. government and become a sore point in the two countries’ relationship.

The White House, through the Press Secretary, issued a press release welcoming Pastor Brunson's release. (See prior related posting.)

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.