Suit Seeks To Impose Vaccination Exemption On Religious School

VIN News reports on a suit filed last month in a New York state trial court by parents who are seeking to require a Jewish day school to grant their 4-year old son a religious exemption from immunization requirements.  Yeshiva Oholei Torah requires children to be immunized in order to attend, and the school does not recognize exemption requests. The suit apparently contends that the religious exemption provision in New York's Public Health Law Sec. 2164(9) is mandatory for schools. The section provides that the mandatory vaccination requirements of state law "shall not apply to children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to the practices herein required, and no certificate shall be required as a prerequisite to such children being admitted or received into school or attending school." The trial court denied an emergency injunction in the case last month to the parents who claim their religious freedom is being infringed.. A hearing on a preliminary injunction will be held next week. Some four dozen measles cases have been confirmed among yeshiva students in New York and New Jersey. [Thanks to Avram Schwartz for the lead.]

Alabamans Approve 10 Commandments and Right To Life Amendments

Alabama voters yesterday approved two state constitutional amendments. By a margin of 78% to 22%, voters approved Amendment 1, officially described as follows:

First, it provides that a person is free to worship God as he or she chooses, and that a person’s religious beliefs will have no effect on his or her civil or political rights. Second, it makes clear that the Ten Commandments may be displayed on public property so long as the display meets constitutional requirements, such as being displayed along with historical or educational items. Amendment 1 also provides that no public funds may be used to defend this amendment in court.

Voters, by a margin of 59% to 41% approved Amendment 2, officially described as follows:

Amendment 2 provides that it would be the public policy of the state to recognize and support the importance of unborn life and the rights of unborn children, including the right to life; and to protect the rights of unborn children. Additionally, the amendment would make clear that the state constitution does not include a right to abortion or require the funding of an abortion using public funds.

The proposed amendment does not identify any specific actions or activities as unlawful. It expresses a public policy that supports broad protections for the rights of unborn children as long as the protections are lawful.

Faith-Based Groups Push Voters To The Polls In Today's Mid-Term Elections

RNS yesterday reported on the extensive get-out-the vote campaigns mounted by religious groups. Detailing many of the efforts, the report says in part:

Waves of religious groups are mustering passionate get-out-the-vote efforts in the final hours before the heated midterm elections, with clergy pushing the faithful to the polls in ways that stand to aid both Republicans and Democrats.

Convincing religious voters to cast ballots on Election Day on Tuesday (Nov. 6) is hardly a new phenomenon in American politics. But this year’s atypically heated midterm contests appear to have sparked unusually robust efforts by faith-based organizations to galvanize supporters and move the political needle in favor of their respective values, if not their preferred candidates.

Canadian Diocese Wins Suit Against Insurance Company That Refused Coverage For Abuse Victims

In Aviva Insurance Company of Canada v. L’Évêque catholique romain de Bathurst, (NB Court of Appeal, Oct. 18, 2018), the New Bunswick Court of Appeal held that the Catholic Diocese of Bathurst is entitled to $3.35 million damages against its insurance company that refused to cover amounts paid to victims of clergy sexual abuse. The court said in part:

While the underlying facts of this litigation are most disturbing, at its core this is a breach of contract case involving a diocese that, over the years, purchased general public liability insurance from an insurer, which, many years later, when claims were made, wrongfully denied coverage. The question on appeal is whether the diocese is entitled to damages for breach of contract in amounts that involve the costs of, and payments made through, a conciliation process the diocese set up as a result of its insurer’s denial of coverage....

The Diocese’s right to damages did not rest on it being legally obligated to make the conciliation payments. The correct legal test is one of reasonableness; the trial judge was bound to follow this test and determine whether the conciliation process and the resulting payments were a reasonable response to breach of contract. I conclude the actions of the Diocese did constitute a reasonable response, within the boundaries of the law, to Aviva’s wrongful denial of coverage.

CNS reports on the decision.

Pakistan Blasphemy Case Is Not Over As Government Agrees To Seek Another Review

As previously reported, last week Pakistan's Supreme Court reversed the blasphemy conviction of Asia Bibi, a Christian woman who had been sentenced to death in 2010 for allegedly uttering derogatory remarks against the Prophet Muhammad. However hard-line Islamist opposition to the Court's decision has developed. CBS News reports:

Pakistan's top court acquitted Bibi on Wednesday of the charges carrying the death penalty, infuriating hard-line Islamists who held three days of nationwide protests demanding her execution. The enraged protesters torched scores of vehicles, blocked highways and attacked government and public property; a radical cleric also threatened to kill the three judges who acquitted Bibi. According to the Reuters news agency, Cleric Khadim Hussain Rizvi, who leads the Islamist Tehreek-e-Labbaik (TLP) party, had his Twitter account suspended on Monday for inciting violence.

The protests ended after the government agreed to impose a travel ban on Bibi and allow her case to be reviewed. A review petition was filed in the Supreme Court....

Earlier in the day, police said over 150 people were arrested on charges of arson, vandalism and violence during the protests.

Meanwhile, Al Jazeera reports that Bibi's lawyer has fled to the Netherlands after threats on his life.

Professor Sues Over Requirement To Address Students Using Their Preferred Pronoun

Yesterday a philosophy professor at Shawnee State University in Portsmouth, Ohio filed suit against the trustees and administrators at the school charging that they have violated his free exercise and free speech rights in the enforcement of the University's policy barring discrimination on the basis of gender identity.  The complaint (full text) in Meriwether v. Trustees of Shawnee State University, (SD OH, filed 11/5/2018) complains that University officials enforce university policies to require faculty to use the pronoun preferred by a student when addressing the student. Plaintiff, Prof. Nicholas Meriwether, asserts in part in his complaint:

85. Dr. Meriwether’s Christian faith governs the way he thinks about human nature, marriage, gender, sexuality, morality, politics, and social issues, and it causes him to hold sincerely-held religious beliefs in these areas.

86. Dr. Meriwether’s convictions concerning human nature, the purpose and meaning of life, and ethical standards that are to govern human conduct are drawn from the Bible.

87. Dr. Meriwether believes that God created human beings as either male orbfemale, that this gender is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual’s feelings or desires.

88. Dr. Meriwether also believes he cannot affirm as true ideas and concepts that are not true, as this would violate Biblical injunctions against dishonesty and lying.

ADF issued a press release announcing the filing of the lawsuit.

Supreme Court Denies Cert. In Ministerial Exception Case

The U.S. Supreme Court today denied review in Grusgott v. Milwaukee Jewish Day School, Inc., (Docket No. 18-125, certiorari denied 11/5/2018). (Order List.)  In the case, the U.S. 7th Circuit Court of Appeals held that the ministerial exception applies to prevent a former Hebrew teacher in a Jewish day school from suing for her firing in violation of the Americans With Disabilities Act. (See prior posting.)

Ballot Issues To Watch In Tomorrow's Elections

Several ballot measures that may be of interest to Religion Clause readers will be voted on around the country tomorrow:

• Alabama Ten Commandments Amendment, Amendment 1
• Alabama State Abortion Policy Amendment, Amendment 2
• Oregon Ban Public Funds for Abortions Initiative
• West Virginia Amendment 1, the No Right to Abortion in Constitution Measure

Recent Articles of Interest

From SSRN:

• Elizabeth A. Brown & Inara Scott, Belief v. Belief: Resolving LGBTQ Rights Conflicts in the Religious Workplace, (American Business Law Journal, Forthcoming).
• John Melcon, Thou Art Fired: A Conduct View of Title VII's Religious Employer Exemption, (Rutgers Journal of Law and Religion, Forthcoming).
• Louis W. Hensler, Moses’ Restatement of Torts: Modern Principles of Justice and Efficiency in the Mishpatim, (October 10, 2018).
• Sohail Wahedi, Abstraction from the Religious Dimension, (Buffalo Human Rights Law Review, Vol. 24, No. 1, 2017-2018).
• Alisha Patton, Harris and Whole Woman’s Health Collide: No Funding Provisions Unduly Burden Reproductive Freedom, (Hastings Law Journal, Forthcoming).
• Sam Fox Krauss, Moral Market Design, (Kansas Journal of Law & Pubic Policy, Vol. 28, No. 2, 2019).
• Ji Ma, Funding Nonprofits in a Networked Society: Two Modes of Crowding Mechanism of Government Support, (July 17, 2018).
• Timothy M. Todd, Exogeneity vs. Endogeneity in Section 170’s Quid Pro Quo Test, (State Tax Notes, Vol. 90, pp. 37-44, Oct. 1, 2018; Tax Notes, Vol. 161, pp. 65-72, Oct. 1, 2018).

From SSRN (European and Australian Law):

• Eva Brems , Saïla Ouald Chaib & Katrijn Vanhees, 'Burkini' Bans in Belgian Municipal Swimming Pools: Banning As a Default Option, (Netherlands Quarterly of Human Rights, December 2018).
• Brett Crumley, & John Picton, Still Standing? Cy-près and Charitable Service Users in the First-tier Tribunal (Charity), (Conveyancer and Property Lawyer, (2018) 82 Conv 262 – 279).
• Ian Ramsay & Corinne Tan, Social Impact Bonds in Australia, (Journal of Banking and Finance Law and Practice, Vol. 29, No. 3, 2018, pp. 248-257).

From SSRN (Islamic Law):

• Fajri Muhammadin, Dian Agung Wicaksono, Almonika Sari & Ola Ayutama,  Lashing in Qanun Aceh and the Convention Against Torture: A Critical Appraisal, (Jurnal Media Syariah, Vol. 20, No. 1 (2018)).
• Vina Berliana Kimberly, Novita Dwi Lestari &  and Fajri Muhammadin, Incorporating Qawaidh Fiqhiyyah to the 'Principles of Law' Chapter in the Introduction to Jurisprudence Course in Indonesia's Legal Education, (Proceeding of the International Conference on Research in Islamic Education (ICRIE), Universiti Teknologi Malaysia, 2018).
• Nurizal Ismail, Fajri Muhammadin & Hanindito Danusatya, The Urgency to Incorporate Maqasid Shari’ah as an Eludication of ‘Benefit’ as a Purpose of Law in Indonesia’s Legal Education, (Proceeding of the 1st International Conference on Law, Technology, and Society (ICOLESS) 2018, Batu, Indonesia, October 24-25, 2018).

From SmartCILP:

• Logan A. Yelderman, Monica K. Miller & Alicia DeVault, Led By the Spirit: Integrating Social Science and Law to Better Understand the Impact of Jurors' Religious Beliefs, [Abstract], 9 Faulkner Law Review 227-249 (2018).
• John H. Calvert, The Absence of Religious Neutrality in K-12 Public Science Education, 12 Liberty University Law Review 571-662 (2018).
• Anton Sorkin, Make Law, Not War: Solving the Faith/Equality Crisis, 12 Liberty University Law Review 663-734 (2018).
• Shael Herman, The Acre Bible: Recasting Hebrew Scripture for Crusaders and the Christian Flock, 33 Tulane European & Civil Law Forum 75-100 (2018).

Recent Prisoner Free Exercise Cases

In Forehand v. Sapp, 2018 U.S. Dist. LEXIS 183729 (MD GA, Oct.26, 2018), a Georgia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 183990, Sept. 21, 2018) and permitted an inmate to move ahead with his complaint that he was required to choose between observing the Ramadan fast or the Nation of Islam December fast; he was not permitted to observe both.

In Butler v. California Department of Corrections, 2018 U.S. Dist. LEXIS 184220 (ND CA, Oct. 26, 2018), a California federal district court dismissed an inmate's complaint that his request for Nation of Islam videos be broadcast on the CTF system-wide television channel was denied and that there is not an NOI chaplain.

In Brown v. Semple, 2018 U.S. Dist. LEXIS 185456 (D CT, Oct. 30, 2018), a Connecticut federal district court allowed an inmate to move ahead with his free exercise complaint alleging that he was not allowed to have a Wicca bible that was sent to him. His Establishment Clause and equal protection complaints were dismissed without prejudice.

In Lane v. Avery, 2018 U.S. Dist. LEXIS 184649 (ED AR, Oct. 29, 2018), an Arkansas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 185647, Oct. 11, 2018) and dismissed an inmate's complaint that he was deprived of his Bible while on "behavior control" and was prevented him from "fellowshipping" with other believers during holy days because he was kept in ad seg.

In Elias v. Kinross, 2018 U.S. Dist. LEXIS 185869 (ED CA, Oct. 29, 2018), a California federal magistrate judge allowed a Wiccan inmate to move ahead with his complaint that ink he was using for a religious ceremony was confiscated.

In Stewart v. Sheahan, 2018 U.S. Dist. LEXIS 186253 (WD NY, Oct. 29, 2018), a New York federal district court allowed a Muslim inmate to move ahead with his complaint that he was no provided Ramadan meals for four consecutive days.

In Simmons v. Gilmore, 2018 U.S. Dist. LEXIS 187293 (WD PA, Oct. 31, 2018), a Pennsylvania federal magistrate judge recommended dismissing without prejudice an inmate's complaint that his receiving only 3 haircuts in 10 months violated his Spiritual Scientist religious beliefs as to personal hygiene.

Supreme Court Agrees To Review Bladensburg Cross Case

The U.S. Supreme Court yesterday granted certiorari in two appeals stemming from the same 4th Circuit opinion. The petitions for review were granted in American Legion v. American Humanist Association (Docket No. 17-1717) and Maryland-National Capital Park and Planning Commission v. American Humanist Association (Docket No.  18-18). (Cert. granted, 11/2/2018). (Order List). In the case, the U.S. 4th Circuit Court of Appeal, in a 2-1 decision, held that the 40-foot high Bladensburg Cross that has stood for over 90 years as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting.) The Circuit Court, by a vote of 8-6, then denied en banc review. (See prior posting). Here is the SCOTUS blog case page for the cases, with links to filings in the case.  WTOP News reports on the grant of review.

NYT Profiles Political Views of Young Evangelicals

The New York Times yesterday carried a long feature article on the political views of young Christian evangelicals. The article features interviews with six young evangelicals of different political affiliations.

South Korea's Supreme Court Recognizes Conscientious Objection To Military Draft

According to AFP, South Korea's Supreme Court yesterday-- by a vote of 9-4-- ruled that religious and moral beliefs are valid reasons to refuse the country's military conscription. The ruling, which overruled prior precedent, came in the case of a Jehovah’s Witness conscientious objector who had been convicted by lower courts. Refusing the draft has typically resulted in an 18-month prison term. Some 19,000 conscientious objectors have been jailed since 1950, with 96 currently in prison.

Free Exercise Defenses Rejected In Conviction of Temple Operator For Prostitution

In State of Arizona v. Elise, (AZ App., Nov. 1, 2018), an Arizona state appellate court upheld against free exercise defenses the conviction of the operator of the Phoenix Goddess Temple. Tracy Elise was convicted of money laundering, pandering, and operating the Temple as a house of prostitution.  The court rejected defendant's 1st Amendment defense, finding that the statutes under which defendant was convicted are neutral laws of general applicability.  It rejected defenses under the Arizona Free Exercise of Religion Act, finding that defendant "did not prove the sexual acts performed at the Temple were motivated by a religious belief, rather than for pecuniary gain."

Recent Prisoner Free Exercise Cases

In Priest v. Holbrook, (9th Cir., Oct. 31, 2018), the 9th Circuit reversed the district court's dismissal of a Native American inmate's complaint that his golden eagle feathers were confiscated.

In McCracken v. Godert, 2018 U.S. Dist. LEXIS 178074 (ED MO, Oct. 17, 2018), a Missouri federal district court allowed an inmate who is a Native American Medicine Man to move ahead with his complaint that the prison's ban on tobacco failed to provide an exception for religious ceremonies.

In Ross v. Sandoval, 2018 U.S. Dist. LEXIS 179876 (D NV, Oct. 19, 2018), a Nevada federal district court granted a preliminary injunction requiring that a Buddhist inmate be placed on the common fare diet.

In Barnes v. Daviess County Detention Center, 2018 U.S. Dist. LEXIS 180713 (WD KY, Oct. 19, 2018), a Kentucky federal district court allowed a Muslim inmate to move ahead with his complaint that during Ramadan he has not been able to engage in prayers or have a clean uniform in which to pray.

In Franklin v. York, 2018 U.S. Dist. LEXIS 180832 (ND NY, Oct. 16, 2018), a New York federal magistrate judge recommended dismissing a Muslim inmate's complaint regarding a prayer rug, Ramadan meals, and receipt of mail including a prayer schedule. UPDATE: The court adopted the magistrate's recommendation at 2018 U.S. Dist. LEXIS 190161, Nov. 7, 2018.

In Archibald v. Warren County Regional Jail, 2018 U.S. Dist. LEXIS 181336 (WD KY, Oct. 23, 2018), a Kentucky federal district court allowed a Muslim inmate to move ahead with his complaint regarding Ramadan meals.

In Clinton v. Duby, 2018 U.S. Dist. LEXIS 182079 (WD MI, Oct. 24, 2018), a Michigan federal district court allowed an inmate to move ahead with claims growing out of denial of his approved religious vegan diet.

In Jones v. North Carolina Department of Public Safety, 2018 U.S. Dist. LEXIS 182150 (WD NC, Oct. 23, 2018), a North Carolina federal district court dismissed a Muslim inmate's complaint that he was told to shave his beard before he could interview for a work release job.

Pakistan's Supreme Court Reverses Blasphemy Conviction of Asia Bibi

In a widely followed case, the Pakistan Supreme Court yesterday reversed the blasphemy conviction of Asia Bibi, a Christian woman who had been sentenced to death in 2010 for allegedly uttering derogatory remarks against the Prophet Muhammad. The statements were allegedly made after Bibi got into an argument with two Muslim women while picking berries in a field.  The Muslim women refused to accept water from Bibi because she was Christian. In Bibi v. The State, (Pak. Sup. Ct., Oct 31, 2018), a 3-judge panel concluded (in a 34-page opinion) that the charges against Bibi had not been adequately proven, since the lower courts relied on contradictory testimony and the trial court relied on a confession that was given under pressure.  Justice Nisar's majority opinion alluded to the misuse of blasphemy prosecutions in Pakistan:

[N]o one could be allowed to defy the name of the Holy Prophet Muhammad (صلى الله عليه وسلم ) and be left unpunished, but there is another aspect of the matter; sometimes, to fulfill nefarious designs the law is misused by individuals leveling false allegations of blasphemy. Stately, since 1990, 62 people have been murdered as a result of blasphemy allegations, even before their trial could be conducted in accordance with law.

Judge Khosa filed a 21-page concurring opinion, in which he observed:

It is ironical that in the Arabic language the appellant’s name Asia means ‘sinful’ but in the circumstances of the present case she appears to be a person, in the words of Shakespeare’s King Leare, “more sinned against than sinning”.

The Guardian reports on the decision and reactions to it:

By the afternoon, thousands of club-wielding demonstrators had blocked highways, burned tyres and pelted police with stones in major cities including Islamabad and Karachi.

Anti-Semitism Suit Against San Francisco State Dismissed

In Mandel v. Board of Trustees of the California State University, (ND CA, Oct. 29, 2018), a California federal district court dismissed an amended complaint charging that San Francisco State University tolerated, or even encouraged, anti-Semitic conduct. The court summarized its holding:

While I understand that these plaintiffs, and some other members of the Jewish or Israeli community in or around SFSU, feel deeply that SFSU has not done enough to curtail others’ anti-Semitic behaviors and to foster a better environment for Jewish and pro-Israeli students, the acts described in the SAC do not adequately allege a violation of federal anti-discrimination laws so that liability may be imposed on SFSU, its administrators, or its faculty.

San Francisco Chronicle reports on the decision.

Bodies of Pittsburgh Shooting Victims Handled According To Religious Law

The New York Times reported yesterday on the arrangements at the scene of the Pittsburgh synagogue massacre to assure that bodies of the victims were handled in conformity with Jewish religious law:

All night long, Jewish volunteers stood solemnly in the rain outside the Tree of Life synagogue, where 11 dead bodies lay inside, sealed off with yellow crime-scene tape. The deceased were not supposed to be left alone, according to Jewish tradition, from the moment of death until burial. So when the medical examiner removed the bodies at 5 a.m. Sunday, the volunteers were there to escort them to the morgue....

Once homicide investigators give them the all clear, they intend to meticulously clean the crime scene. They consider everything left behind to be sacred remains, to be preserved and buried with the bodies....

Although autopsies are generally avoided in Jewish tradition, there was no doubt that each of the bodies would need to be examined for evidence in the criminal case. Once the bodies were with the medical examiner, Mr. Wasserman [head of the burial society] ensured that a shomer, as the guard is called in Hebrew, was in the building to keep watch over them as they went through the process.

[Thanks to Steven H. Sholk for the lead.]

Hawaii Supreme Court Approves Manua Kea Telescope

In In re Thirty Meter Telescope at the Mauna Kea Science Reserve, (HI Sup. Ct., Oct. 30, 2018), the Hawaii Supreme Court affirmed the decision of the state's Board of Land and Natural Resources allowing a 30 meter telescope to be erected near the summit of Mauna Kea.  Native Hawaiian cultural practitioners believe that Mauna Kea should be kept in its natural state as a sacred manifestation of their ancestry. Hawaii's Constitution (Art. XII, Sec. 7) protects the cultural and religious rights of the descendants of Native Hawaiians. The Court's majority opinion by Justice McKenna upheld the agency's finding that while Native Hawaiian cultural practitioners use the summit of Mauna Kea, there is no evidence that they use the Thirty Meter Telescope Observatory site area and the Access Way. The Court also rejected appellants' RLUIPA challenge, holding that RLUIPA does not apply to the government's management of its own land. New York Times reports on the decision. [Thanks to  Kuliaikanu'u Petzoldt for the lead.]

DOJ Expands Hate Crime Resources

The Department of Justice today is concluding a two-day Law Enforcement Roundtable on Improving the Identification and Reporting of Hate Crimes. (Press release). In connection with the Roundtable it announced a new Hate Crimes website "designed to provide a centralized portal for the Department’s hate crimes resources for law enforcement, media, researchers, victims, advocacy groups, and other related organizations and individuals." Deputy Attorney General Rosenstein also announced a grant to the University of New Hampshire for a national survey on hate crime incidents and victimization. He also announced the extension of an existing technical assistance program to the prosecution and prevention of hate crimes.

Cert. Filed In Touro Synagogue Ownership Dispute

Last week a petition for certiorari (full text) was filed with the U.S. Supreme Court in Congregation Jeshuat Israel v. Congregations Shearith Israel, (cert. filed 10/22/2018). In the case, the U.S. 1st Circuit Court of Appeals held that Rhode Island's historic Touro Synagogue is owned by New York's Shearith Israel congregation. The court also concluded that a pair of historic silver Torah ornaments worth some $7 million are also owned by the New York congregation. (See prior posting.) Providence Journal reports on the petition for review.

Irish Voters Approve Elimination of Blasphemy As A Crime

In a referendum held last Friday, voters in Ireland approved removal from Sec. 40.6.1 of the Irish Constitution the language that makes blasphemy a crime.  As reported by BBC News, the vote was 64.85% voting in favor of decriminalizing blasphemy, and 35.15% against.  The removal of the language from the Constitution permits the Oireachtas to amend or repeal Sec. 36 of the Defamation Act of 2009 in order to eliminate blasphemy as a crime. (Background on referendum). See prior related posting.  [Thanks to Law & Religion UK for the lead.]

Recent Articles of Interest

From SSRN:

• Effie Fokas, The Legal Status of Religious Minorities: Exploring the Impact of the European Court of Human Rights, (Social Compass, 2017, 65(1), 25-42).
• Haniff Ahamat & Nasarudin Abdul Rahman, Halal Food, Market Access and Exception to WTO Law: New Aspects Learned from Indonesia — Chicken Products, (Asian Journal of WTO & International Health Law and Policy, Vol. 13, No. 2, pp. 355-373, September 2018).
• Wayne Barnes, The Paradox of Christian-Based Political Advocacy: A Reply to Professor Calhoun, (74 Wash. & Lee L. Rev. Online 489 (2018)).
• Helen M. Alvare, Is This Any Way to Make Civil Rights Law? Judicial Extension of 'Marital Status' Nondiscrimination to Protect Cohabitants, (Georgetown Journal of Law & Public Policy, Forthcoming).
• Paulo Pinto de Albuquerque & Andrea Scoseria Katz, Is Religion a Threat to Human Rights? Or is It the Other Way Around? Defending Individual Autonomy in the ECtHR's Jurisprudence on Freedom of Religion, (Religion and International Law: Living Together 277-293 (Robert Uerpmann-Wittzack, Evelyne La-grange, and Stefan Oeter eds. 2018)).
• Effie Fokas, The Secular Court?, (November 1, 2016).
• ZW Taylor, Sources of Free Speech in U.S. Higher Education: What the Law Tells Us, (September 27, 2018).
• Thomas Colby, The Other Half Of The Abortion Right, (20 University of Pennsylvania Journal of Constitutional Law 1043 (2018)).
• Pooja Dadhania, Deporting Undesirable Women, (9 UC Irvine L. Rev. 53 (2018)).

11th Amendment Dismissal Avoids Ruling On Free Exercise Challenge To Medicaid Rule

In Scott v. Virginia Department of Medical Assistance Services, (WD VA, Oct. 19, 2018), a Virginia federal district court dismissed on 11th Amendment grounds a suit challenging a state Medicaid rule that deny payment for in-home care services rendered by the parent of a minor child. Here the state refused to grant an exception to allow a child's stepfather to be paid as an attendant caregiver.  The child's mother had argued that her religious beliefs require that only a male relative can help bathe her son, that parents be the primary caretakers of their children, and that no male other than her husband, father, or brother be in the house alone with her. Avoiding a ruling on the merits, the court held:

Scott brought her suit against DMAS itself, rather than the appropriate state official charged with the specific duty of enforcing the contested DMAS policy. Thus, the Ex Parte Young exception does not apply, and her suit is barred regardless of the relief sought.

Prison Cannot Limit Participation In Native American Religious Ceremonies To Ethnic Native Americans

In Guardado v. Nevada, 2018 U.S. Dist. LEXIS 177365 (D NV, Oct. 16, 2018), a Nevada federal district court held that a Mexican-American inmate's free exercise rights protected by RLUIPA were violated when the Nevada prison system implemented a requirement of the Nevada Indian Commission that participation in Native American religious ceremonies in prison be limited to those of Native American heritage. Plaintiff had argued that no other religion requires inmates to show proof of their ethnicity to practice their beliefs. The court, concluding that it need not reach plaintiff's equal protection arguments since the practice violates RLUIPA, held:

Here, the Court is satisfied that Plaintiff's Native American religious beliefs are sincerely held. Further, AR 810 is a substantial burden on Plaintiff's free exercise as he is Mexican-American and cannot show that he is Native American or provide documentation that he is registered or affiliated with any recognized tribe.... Defendants have not shown that any safety or security issues are likely to arise from Plaintiff's participation in Native American religious ceremonies.

The court issued a preliminary injunction requiring  that defendants permit Ernest Guardado "to participate in Native American religious ceremonies with the Native American practitioners including sweat lodge, prayer circle, drum circle, smudging, sacred pipe, and access to the Native Indian grounds."

Charges Filed Against Accused Pittsburgh Synagogue Shooter

The U.S. Attorney's Office for the Western District of Pennsylvania announced tonight the charges that are being filed against the Pittsburgh, Pennsylvania synagogue shooter:

On Saturday, October 27, 2018, at 8:05 p.m., U.S. Magistrate Judge Robert C. Mitchell signed a criminal complaint charging Robert Bowers of Baldwin, Pa., with 29 counts setting forth federal crimes of violence and firearms offenses. The crimes of violence are based upon the federal civil rights laws prohibiting hate crimes. The FBI in Pittsburgh is leading the investigation."

The federal complaint alleges that Bowers committed the following crimes on or about October 27, 2018, in the Western District of Pennsylvania:

• Eleven counts of Obstruction of Exercise of Religious Beliefs Resulting in Death (18 U.S.C. §§ 247(a)(2) and 247(d)(1))

• Eleven counts of Use of a Firearm to Commit Murder During and in Relation to a Crime of Violence (18 U.S.C. §§ 924(c)(1)(A) and 924(j)(1)

• Four counts of Obstruction of Exercise of Religious Beliefs Resulting in Bodily Injury to a Public Safety Officer 18 U.S.C. §§ 247(a)(2) and 247(d)(3))

• Three counts of Use and Discharge of a Firearm During and in Relation to a Crime of Violence (18 U.S.C. §§ 924(c)(1)(A) and 924(iii))

UPDATE: The Pittsburgh Post-Gazette reports on state charges that have also been filed against Bowers:

Later Saturday, Pittsburgh police filed 11 counts of criminal homicide against Mr. Bowers, along with six counts of attempted homicide; six counts of aggravated assault and 13 counts of ethnic intimidation.

Government Brief To SCOTUS Says Title VII Does Not Ban Transgender Discrimination

On Wednesday, the Justice Department filed a brief (full text) with the U.S. Supreme Court arguing that Title VII of the 1964 Civil Rights Act does not cover discrimination against an individual based on gender identity. The brief follows the position taken by the Trump Administration in an Oct. 2017 Justice Department Memo.  The brief was filed in response to the petition for certiorari in R.G. and G.R. Harris Funeral Homes, Inc. v. EEOC, in which the U.S. 6th Circuit Court of Appeals held that a Michigan funeral home violated Title VII when it fired a transgender employee who was in the process of transitioning from male to female. (See prior posting.) The government's brief ultimately urges the court to hold the petition in this case pending its decision on whether to grant review in two other cases raising similar issues. NBC News reports on the DOJ brief. SCOTUS blog has links to all the briefs filed with the Supreme Court in the case.

Japanese Court Rejects Challenge To Prime Minister's Visit To Yasukuni Shrine

Kyodo News reports on a decision by a Japanese appellate court yesterday holding that a 2013 visit by Prime Minister Shinzo Abe to the Yasukuni Shrine did not violate the religious freedom of the 450 citizens who brought the lawsuit. The shrine honors millions of war dead, but also convicted war criminals, and the Prime Minister's visit, according to the plaintiffs heightened international tensions.  The court held that the visit did not interfere with plaintiffs' faith.

European Court Upholds Conviction For Calling Muhammad A Pedophile

As reported by the Daily Mail, in E.S. v. Austria, (ECHR, Oct. 25, 2018) the European Court of Human Rights ruled unanimously in a Chamber Judgment that Austria did not violate free speech protections of the European Convention on Human Rights, Sec. 10, when it convicted a speaker of disparaging religious precepts.  The speaker, a woman identified as E.S., made a statement disparaging Muhammad at a seminar titled “Basic information on Islam” presented at the right-wing Freedom Party Education Institute. Her presentation labelled Muhammad's marriage to Aisha as pedophilia  As summarized by the Court's Information Note on the decision, the Court held:

The applicant’s statements had been capable of arousing justified indignation given that they had not been made in an objective manner aimed at contributing to a debate of public interest, but could only have been understood as aimed at demonstrating that Muhammad was not a worthy subject of worship.... Presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society....

The applicant had subjectively labelled Muhammad with paedophilia as his general sexual preference, while failing to neutrally inform her audience of the historical background, which consequently did not allow for a serious debate on that issue, and had thus made a value judgement without sufficient factual basis.... As to the applicant’s argument that a few individual statements had to be tolerated during a lively discussion, it was not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and deduce that this would render the statements, exceeding the permissible limits of freedom of expression, passable. Moreover, the applicant had been wrong to assume that improper attacks on religious groups had to be tolerated even if they were based on untrue facts.

Chamber judgments may be appealed to the Grand Chamber. [Updated to provide link to full text of decision. Thanks to Seth Tillman for the link.]

Suit Against Drag Queen Story Hour Dismissed

Last Friday a suit was filed in federal district court in Houston, Texas seeking to stop a city sponsored drag queen story hour that is scheduled for the Houston Public Library. Plaintiffs argued that the story hour violates their religious free exercise. (Houston Chronicle). Yesterday the court dismissed the suit in a four-sentence order, concluding that there is no basis for the requested relief. (Houston Chronicle).

Oral Arguments In 7th Circuit Challenge To Parsonage Allowance

Yesterday the U.S. 7th Circuit Court of Appeals heard oral arguments in Gaylor v. Peecher. (Audio recording of full oral arguments.) In the case, a Wisconsin federal district court held that the parsonage allowance provision in Sec. 107(2) of the Internal Revenue Code violates the Establishment Clause. (See prior posting.)  Courthouse News Service reports on the oral arguments.

D.C. Opens Investigation of Local Clergy Sexual Abuse Charges

The Washington Post reported yesterday that the office of the District of Columbia Attorney General has opened a civil investigation into charges of sexual abuse by Catholic clergy in the Diocese of Washington. Earlier this month, Pope Francis accepted the resignation of the Diocese's Archbishop Cardinal Donald Wuerl after controversy over his handling of abuse claims as head of the Pittsburgh (PA) Diocese. (See prior posting.) According to yesterday's Post report:

D.C. statutes allow the attorney general to subpoena documents and seek penalties against a nonprofit — up to and including dissolving it — if it “has exceeded or abused and is continuing to exceed or abuse the authority conferred upon it by law” or if it “has continued to act contrary to its nonprofit purposes.”

[Attorney General Karl] Racine said that any felony crimes his office discovers in the course of its probe would be forwarded to the U.S. attorney. Racine’s staff could also prosecute any violations of the District’s mandated reporting requirements — which would be misdemeanors — separately from the civil investigation.

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.)