9th Circuit: Ministerial Exception Doctrine Does Not Bar Parochial School Teacher's Suit

In Biel v. St. James School, (9th Cir., Dec, 17, 2018), the U.S. 9th Circuit Court of Appeals in a 2-1 decision held that a 5th grade teacher at a Catholic elementary school is not a "minister" for purposes of the ministerial exception doctrine. At issue was a suit under the Americans for Disability Act brought by a teacher whose contract was not renewed.  The majority said in part:

A contrary rule, under which any school employee who teaches religion would fall within the ministerial exception, would not be faithful to Hosanna-Tabor or its underlying constitutional and policy considerations. Such a rule would render most of the analysis in Hosanna-Tabor irrelevant. It would base the exception on a single aspect of the employee’s role rather than on a holistic examination of her training, duties, title, and the extent to which she is tasked with transmitting religious ideas.

Education Week reports on the decision.

Churches Win Exemption From Anti-Discrimination Ordinance

The Green Bay Press Gazette reports that on Friday a Wisconsin state trial court held that De Pere, Wisconsin's anti-discrimination ordinance infringes the free exercise rights of churches and that churches should not be considered public accommodations under the statute.The ordinance prohibits discrimination in housing, employment and public accommodations on the basis of sex, marital status, sexual orientation or gender identity, (See prior posting.)

Recent Articles of Interest

From SSRN:

• Mark Movsesian, Masterpiece Cakeshop and the Future of Religious Freedom, (Harvard Journal of Law and Public Policy, Forthcoming).
• Marc Tizoc González, Criminalizing Charity: Can First Amendment Free Exercise of Religion, RFRA, and RLUIPA Protect People Who Share Food in Public? (2017). 7 U.C. Irvine L. Rev 291 (2017).
• Yvonne Tew, Stealth Theocracy, ( Virginia Journal of International Law, Vol. 58, No. 31, 2018).
• F. Mnyongani & Magda Slabbert, A Jehovah’s Witness’s Autonomy versus the Interests of Her Children – ES v AC Mnyonfd, (Journal of Contemporary Roman-Dutch Law, Vol. 81, p. 316-325, 2018).
• Joshua Moir & Julia Wagner, The Idea of Religious Neutrality and the Cooperation Model Compared in Germany, Austria and Italy, (University of Milano-Bicocca School of Law Research Paper No. 18-13 (2018).
• Constanza Nardocci, Equality & Non-discrimination between the European Court of Justice and the European Court of Human Rights. Challenges and Perspectives in the Religious Discourse, (University of Milano-Bicocca School of Law Research Paper No. 18-12 (2018).
• Sina Haydn-Quindeau, Religious Symbols in Public Space: The German Way, (University of Milano-Bicocca School of Law Research Paper No. 18-14 (2018).
• Wojciech Brzozowski, Is Islam Incompatible with European Identity?, (University of Milano-Bicocca School of Law Research Paper No. 18-15 (2018),

From SSRN (Writings by John Witte):

• John Witte, Founding Principles, Secular Skeptics, and Religious Freedom: Review of Kathleen A. Brady, the Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence, (Journal of Law and Religion, Vol. 32, 2018).
• John Witte & Justin Latterell, The Little Commonwealth: The Family as Matrix of Markets and Morality in Early Protestantism, (in Ted A. Smith and Robert P. Jones, eds., Markets and Morality: Spirit and Capital in an Age of Inequality, 2018).
• John Witte & Brian Kaufman, Law and Religion in American Education, (in Michael D. Waggoner and Nathan C. Walker, eds.,The Oxford Handbook on Religion and Education, 2018).
• John Witte, Law and the Protestant Reformation, (in Heikki Pihlajamäki, Markus Dubber & Mark Godfrey, eds., Oxford Handbook of European Legal History (Oxford: Oxford University Press), 583-610, 2018).
• John Witte, Foreword, (to Rex Ahdar, ed., Research Handbook on Law and Religion (Northampton, MA: Edward Elgar, 2018), xii-xviii).
• John Witte, Faith in Law: The Legal and Political Legacy of the Protestant Reformations, (John Witte, Jr. and Amy Wheeler, eds., The Reformation of the Church and the World (Louisville, KY: Westminster John Knox Press, 2018), 105-38).

From SmartCILP:

• Amihai Radzyner, Rabbis Drafting Criminal Legislation: The Shaping of the Prohibition Against Bigamy for Jews in Mandatory Palestine, [Abstract], 66 American Journal of Comparative Law 369-410 (2018).
• Symposium: Christian Legal Thought. Introduction by student editors Liam Ray, Nicholas A. DiMarco; contributions by Randy Beck, David A. Skeel Jr., Angela C. Carmella, Michael P. Moreland, Richard W. Garnett. 56 Journal of Catholic Legal Studies 1-83 (2017).

New Mexico Supreme Court Upholds Textbook Loan Program

In Moses v. Ruszkowski, (NM Sup. Ct., Dec. 13, 2018), the New Mexico Supreme Court in a 5-2 decision held that New Mexico's textbook loan program does not violate the state constitution. The program provides for the loan of secular textbooks to private and parochial school students.  In 2015, the state Supreme Court held that the program was unconstitutional. (See prior posting.) However in 2017, the U.S. Supreme Court  granted certiorari, vacated the judgment and remanded the case for further consideration in light of the U.S. Supreme Court's Trinity Lutheran Church decision. (See prior posting.) Now on remand, the state Supreme Court reversed itself, saying in part:

On remand, we conclude that this Court’s previous interpretation of Article 16 XII, Section 3 raises concerns under the Free Exercise Clause of the First Amendment to the United States Constitution. To avoid constitutional concerns, we hold that the textbook loan program, which provides a generally available public benefit to students, does not result in the use of public funds in support of private schools as prohibited by Article XII, Section 3. We also hold that the textbook loan program is consistent with Article IV, Section 31 of the New Mexico Constitution, which addresses appropriations for educational purposes, and Article IX, Section 14 of the New Mexico Constitution, which limits “any donation to or in aid of any person, association or public or private corporation.”

Chief Justice Nakamura and Justice Clingman dissented. Courthouse News Service reports on the decision.

Recent Prisoner Free Exercise Cases

In Holt v. Givens, (11th Cir., Dec. 12, 2018), the 11th Circuit held that an inmate failed to state a First Amendment Claim growing out of the taking of his prayer oil.

In Derx v. Yancey, 2018 U.S. Dist. LEXIS 208053 (ED AR, Dec. 10, 2018) an Arkansas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 208651, Nov. 13, 2018) and allowed an inmate top move ahead with 1st Amendment and RLUIPA claims that his his ability to practice his Wiccan beliefs was restricted.

In Strozier v. Hall, 2018 U.S. Dist. LEXIS 208839 (SD GA, Dec. 11, 2018), a Georgia federal magistrate judge recommended dismissing an inmate's complaint that he was not allowed to attend religious services while in an isolation cell.

In Williams v. New York State Office of Mental Health, 2018 U.S. Dist. LEXIS 211279 (ED NY, Dec. 14, 2018), a New York federal district court dismissed a complaint by an involuntarily committed criminal defendant that he was prevented from attending religious services.

Vandalizing Religious Building Includes Vandalizing Sign Outside It

In People v. Laduke, (CA App., Dec. 14, 2018), a California appellate court held that defendant could properly be convicted under California Penal Code Sec., 594.3(a) for vandalism of a building owned and occupied by a religious institution after he torched a sign in front of John Paul the Great Catholic University. The court said in part:

Because the vandalism set forth in section 594.3, subdivision (a) prohibits damage to both real and personal property, we reject LaDuke's suggested interpretation limiting that offense to damage to only an occupied structure with four walls and a roof....  [W]e construe section 594.3, subdivision (a) as prohibiting, inter alia, malicious damage to personal property or fixtures located on or attached to the real property of, and related to, a "building owned and occupied by a religious educational institution."

The court also rejected the argument that Sec. 594.3 violates the Establishment Clause and the Equal Protection clause.

Bhargava Appointed To USCIRF

Anurima Bhargava has been appointed by House Democratic Leader Nancy Pelosito the U.S Commission on International Religious Freedom. According to a USCIRF press release issued yesterday:

Currently founder and President of Anthem of Us, Bhargava is a civil rights lawyer with extensive experience in various roles advocating for members of underrepresented communities, including at the U.S. Department of Justice and the NAACP Legal Defense and Educational Fund (LDF).

Libyan Mufti Wants To Sue British Embassy For Its Equality Program

Yesterday's Libya Observer reports that Libya's Grand Mufti, Al-Saddiq Al-Gharyani, is calling for a lawsuit to be filed against the British embassy in Libya because of the embassy's new initiative to promote equality between men and women in Libya. Al-Gharyani says that activities sponsored by the embassy violate Libya's sacred norms and motivate anti-religious and seditious activities.

9th Circuit: Limited Injunction Against Interim Contraceptive Coverage Rules Upheld

In State of California v. Azar, (9th Cir., Dec. 13, 2018), the U.S. 9th Circuit Court of Appeals in a 2-1 decision affirmed in part a preliminary injunction issued by a California federal district court against enforcement of the Trump Administration's Interim Final Rules expanding religious and moral exemptions to the Affordable Care Act Contraceptive Coverage Mandate. The preliminary injunction, however, will likely have a limited effect.  Final rules similar to the interim ones have been issued and will become effective Jan. 14, 2019.  The basis for the district court's preliminary injunction was noncompliance with the Administrative Procedure Act's notice and comment requirements in adoption of the interim rules. When the final rules take effect, the problematic interim rules will disappear.  The 9th Circuit also held that the district court's injunction was too broad. It should have covered only enforcement against the five states that were plaintiffs (California, Delaware, Virginia, Maryland New York), rather than being a nation-wide injunction.

Judge Kleinfeld dissented arguing that the states lack standing to bring the suit because their injuries were self-inflicted. The injury to the states came from their decisions to grant contraceptive benefits to employees whose employers were exempted by the interim rules. Reuters reports on the decision.

NY Catholic Schools Say They Will Ignore New State Review System

As previously reported,  last month the New York State Education Department issued guidelines for Substantial Equivalency Review of the curriculum of non-public religious and independent schools.  According to the Albany Times Union earlier this week:

In a major rebuke to the state, leaders of New York's more than 500 Catholic schools say they will boycott a proposed new review system in which local public school officials are supposed to inspect the parochial schools and determine whether they offer a “substantially equivalent” education.

“The parents who choose our schools can have great confidence in the academic rigor of our schools,” said James Cultrara, executive secretary of the state Council of Catholic School Superintendents.

But, he added, “We simply cannot accept a competing school having authority over whether our schools can operate.”

Earlier, some Hasidic Jewish yeshivas had expressed defiance of the new rules. (See prior posting.) [Thanks to Steven H. Sholk for the lead].

Mosque Survives Motion To Dismiss Its RLUIPA and Constitutional Claims

In Garden State Islamic Center v. City of Vineland, (D NJ, Dec. 12, 2018), a New Jersey federal district court refused to dismiss a mosque's challenge to the denial of a final certificate of occupancy. The denial stems from the city's claim that the mosque is in violation of its septic system permit.  As summarized by the court:

GSIC claims that the Defendants’ actions are discriminatory in nature and are intended to prevent the GSIC from permanently opening and operating its house of worship/ religious education building through the discriminatory application of land use regulations, in violation of the Religious Land Use and Institutionalized Persons Act ... and the Constitutions of the United States and New Jersey. Plaintiff alleges that the City continually changed the requirements for the septic system, which they previously approved, for discriminatory purposes.

The septic tank issue was merely the latest in a series of procedural hurdles encountered by the mosque. The court concluded that "the sewage permit issue is a zoning law subject to RLUIPA." The court also refused to dismiss plaintiff's 1st and 14th Amendment claims and related New Jersey constitutional claims.

Montana Supreme Court Invalidates Tuition Tax Credit Program

In Espinoza v. Montana Department of Revenue, (MT Sup. Ct., Dec. 12, 2018), the Montana Supreme Court in a 5-2 decision held that Montana's tax credit program for contributions to student scholarship organizations is unconstitutional under Montana Constitution Art. X, Sec, 6 which prohibits state aid to sectarian schools. The majority said in part:

Montana’s no-aid provision is unique from other states’ no-aid provisions. Article X, Section 6’s prohibition of “any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any . . . school . . . controlled in whole or in part by any church” make it a broader and stronger prohibition against aid to sectarian schools than other states. Even other states whose no-aid provisions also contain “indirect” language only prohibit aid in the form of the direct or indirect taking of money from the public treasury....  Such language is distinct from and less stringent than Montana’s prohibition on any type of aid, whether it be a “direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property.” Mont. Const. art. X, § 6(1). 

The majority also held that the Department of Revenue's attempt to cure the program's unconstitutionality by Rule was invalid because the Department exceeded its rule making authority. The court left the student scholarship organization provisions in force, but without the accompanying tax credit for contributions.

Justice Gustafson filed a concurring opinion concluding that the tax credit program also violates the federal Free Exercise and Establishment clauses. Justice Sandefur joined this concurring opinion and also filed a separate concurrence.

Justice Baker, joined by Justice Rice dissented saying in part:

The creation of the credit is a government’s determination not to collect tax revenues. The statute diverts the funds before they ever become public monies. This well may result in an indirect impact on the “public fund or monies,” but it is not an indirect payment,,,,

The Court today holds that a tax credit—granted to a private individual for a donation that may or may not be directed to a religious entity—violates the State Constitution, even though it is clear under the law that a direct tax exemption by the State to a church does not.

Justice Rice also filed a separate dissent. The Missoulian reports on the decision,

Another Court Enjoins Enforcement of Contraceptive Mandate Against Religious Non-Profits

In yet another case, after the Trump Administration has taken the position that the Obama era contraceptive coverage mandate under the Affordable Care Act violates the religious freedom rights of objecting religious non-profits, a court has enjoined enforcement of the mandate.  In Association of Christian Schools International v. Azar, (D CO, Dec. 10, 2018), a Colorado federal district court held that the mandate violates plaintiffs' rights under RFRA. The Hill reports on the decision. The Trump Administration's new rules exempt objecting religious non-profits.

Suit Challenges School District's Anti-Bias Training

The Santa Barbara Independent today reports on a federal lawsuit filed by a group calling itself Fair Education Santa Barbara challenging the Santa Barbara schools anti-bias training for teachers and administrators.  It seeks cancellation of a contract with Just Communities Central Coast that provides the training.  Among other things, the lawsuit contends in part:

Under the guise of promoting so-called ‘unconscious bias’ and ‘inclusivity’ instruction, (Just Communities’) actual curriculum and practices are overtly and intentionally anti-Caucasian, anti-male, and anti-Christian.

The suit claims that the curriculum violates the Equal Protection clause and other civil rights protections by discriminating against white people.

Suit Says Police Chief Forced Religion On Officers

The Advocate reports on a federal court lawsuit filed last week against the Port Allen, Louisiana Police Department::

A second former Port Allen police officer has filed a lawsuit alleging Police Chief Esdron Brown consistently forced his religion on his officer corps through mandatory meetings, and further claimed the chief used God's will as reasoning for unjust promotions.

Robert Cannon Jr.,... , filed a federal civil rights case ... alleging the chief's repeated mention of religion and religious-focused meetings created a hostile work environment.

Evangelists Win Narrow Settlement Victory In Alaska Park Dispute

According to KTUU News, a father-daughter evangelist team have won a narrow victory in the settlement of their lawsuit against the city of Girdwood, Alaska.  They sued challenging the city's "No dogs, no politics, no religious orders" requirement at Girdwood's annual Forest Fair. (See prior posting.) Under the settlement, the city will allow the evangelists to distribute leaflets in the park that is used by Forest Fair. However whether they will be able to proselytize at Forest Fiar itself next year will be up to the Fair's promoters.  A city attorney said that control of the park during events like the Fair in in the hands of the organization that has received a permit to stage the event.

Chinese Police Detain Prominent Pastor and Some Members of Unregistered Church

The New York Times reported earlier this week that on Sunday Chinese police detained Wang Yi, one of China's most prominent Protestant pastors.  His Early Rain Covenant Church, with its over 500 members, is one of many churches that are not registered with the government. These independent Protestant churches that have not complied with the registration laws are one of the fastest growing religious movements in China, claiming some 30 million adherents. More than 100 members of Early Rain were also detained, though a number were released by Monday with some of those then being placed under house arrest.

Hasidic Jews Sue Town Over Zoning Barriers

Suit was filed this week in a New York federal district court against the village of Airmont for its actions in attempting to prevent expansion of its Hasidic Jewish community.  The complaint (full text) in Congregation of Ridnik v. Village of Airmont, (SD NY, filed 12/10/2018), alleges in part:

For Hasidic Jews living in Airmont, seeking the Village’s approval for religious gatherings places applicants in a process reminiscent of the curse of Tantalus. At great expense, applicants prepare elaborate plans in order to obtain approval, which the Village uniformly declines to provide. Instead, the Village dangles promises that the applications will be approved in the future if certain modifications are made, only to then yank any hope of approval away even after the applicants make the requested modifications. Instead of providing an approval or denial, the Village requires applicants to satisfy new conditions, often citing purported problems with the applicants’ plans on which Airmont officials had already signed-off.

Injunction Denied Against Picketing Ordinance

In O'Connell v. City of New Bern, North Carolina, (ED NC, Dec. 10, 2018), a North Carolina federal district court refused to grant a preliminary injunction to block enforcement of the city's ordinance that regulates picketing.  Plaintiff wanted to share his religious, social and political message near MumFest, but was prevented from handing out literature and carrying a cross.

$4M Award Against Jehovah's Witnesses Upheld

In J.W. v, Watchtower Bible and Tract Society of New York, Inc., (CA App,, Dec. 10, 2018), a California state appellate court upheld an award of over $4 million to a girl who, when she was ten years old, was sexually abused by an elder of the Jehovah's Witness church.  The church was charged, among other things, with negligent supervision and failure to warn. The award came after a court struck defendant's answer as a sanction for failing to comply with discovery orders.

Supreme Court Denies Review In Attempted Cutoff of Medicaid Funds To Planned Parenthood

Over the dissent of Justices Thomas, Alito and Gorsuch, the U.S. Supreme Court today denied certiorari in Gee v. Planned Parenthood of Gulf Coast, Inc., (cert. denied, 12/10/2018). (Order list with dissenting opinion by Thomas, J.)  In the case, the 5th Circuit in a 2-1 decision (full text) upheld the district court's preliminary injunction against the state of Louisiana's termination of Medicaid contracts with Planned Parenthood. At issue in the case is whether Medicaid recipients have a private right of action to challenge the state's action, (SCOTUSblog case page).

Recent Articles of Interest

From SSRN:

• Giovanni Zaccaroni, Non-discrimination on the Ground of Religion: A Fundamental Element of the EU Constitutional Legal Order?, (University of Milano-Bicocca School of Law Research Paper No. 18-01 (2018).).
• M. C. Mirow, Léon Duguit and the Social Function of Property in Argentina , (In Paul Babie and Jessica Viven-Wilksch, eds., Léon Duguit and the Social Obligation Norm of Property: A Translation and Global Exploration. Cham: Springer, Forthcoming).
• Damir Banović & Ehlimana Memišević, Law and Religion in Bosnia and Herzegovina (December 7, 2018).
• Philippe Lord,  The Eternal Commitment: Scientology's Billion-Year Contract, (December 7, 2018).
• William P., Marshall, Third-Party Burdens and Conscientious Objection to War,(2018), (Kentucky Law Journal, Vol. 106, 2019).
• Piotr Godzisz, The Europeanization of Anti-LGBT Hate Crime Laws in the Western Balkans, (Crime, Law and Social Change, Forthcoming).
• David Adam Friedman, Bringing Candor to Charitable Solicitations, (Maryland Law Review, Forthcoming).
• Raff Donelson & Ivar Hannikainen, Fuller and the Folk: The Inner Morality of Law Revisited, (Oxford Studies in Experimental Philosophy, Volume 3. Oxford: UK, Oxford University Press, Forthcoming).

Today Is 70th Anniversary of Universal Declaration of Human Rights

Today is the 70th Anniversary of the United Nations adoption of the Universal Declaration of Human Rights. Article 18 of the Declaration guarantees religious freedom:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Recent Prisoner Free Exercise Cases

In Roberts v. Perry, 2018 U.S. Dist. LEXIS 204091 (WD NC, Dec. 3, 2018), a North Carolina federal district court allowed an inmate to proceed on his claims that he was denied access to the courts as to his White Supremacist security risk group designation and confiscation of his religious publications without due process.

In Richardson v. Gleason, 2018 U.S. Dist. LEXIS 205417 (ND NY, Dec. 4, 2018), a New York federal district court ordered dismissal, unless an amended complaint is filed, of a Jewish inmate's complaint that defendants failed to provide Kosher food, religious services, or religious material.

In Yah'Torah v. Hicks, 2018 U.S. Dist. LEXIS 205798 (D NJ, Dec. 4, 2018), a New Jersey federal district court allowed a Jewish inmatge to move ahead with his complaint that he was denied the regular use of fragrant oils for prayer.

Leading Hasidic Rabbi Defies New York Regulations On Yeshiva Curriculum

As previously reported, last month the New York State Education Department issued new guidelines for review of the curriculum of non-public religious and independent schools, under statutory provisions that primarily impact Hasidic Jewish yeshivas. The Forward reported last week that a leading Hasidic rabbi, Satmar Rebbe Aron Teitelbaum, is defying the New York City and New York State Education Departments, telling his followers in a speech:

We will not comply and we will not follow the state education commissioner under any circumstances. These are our words for the state education commissioner.

Religious Adoption Agency Sues Over Nondiscriminaton Rule

A suit was filed this week in New York federal district court challenging a New York regulation that (Title 18 NYCCR Sec.421.3) that adoption agencies may not discriminate against applicants for adoption services on various grounds, including sexual orientation, gender identity and marital status.  New Hope Family Services, a faith based adoption agency, refuses to recommend or place children with unmarried couples or same-sex couples.  The complaint (full text) in New Hope Family Services, Inc. v. Poole, (ND NY, filed 12/6/2018) contends that this regulation violates the agency's free exercise, free expression and equal protection rights. ADF issued a press release announcing the filing of the lawsuit.

Suit Charges Mormon Church With Dominating Utah In Change To Marijuana Initiative

A lawsuit was filed Wednesday in a Utah state trial court challenging the Utah legislature's enactment of H.B. 3001 which weakens a medical marijuana initiative passed by Utah voters last month. According to an AP report, the new law, among other things, bans a number of marijuana edibles; bars people from growing their own marijuana if they live far from a dispensary; and narrows the list of eligible medical conditions for which the drug can be used. The original Initiative was opposed by the Mormon Church, and H.B.. 3001 reflects a compromise designed to prevent the legislature from completely repealing the Initiative measure. The complaint (full text) in Epilepsy Association of Utah v. Herbert, (UT Dist. Ct., filed 12/5/2018), alleges in part:

This is an action for declaratory and injunctive relief arising from, first, the unconstitutional violation by the Utah Legislature of the constitutional right of the People to directly pass legislation through the initiative process under Article VI, Section 1 of the Utah Constitution and, second, the unconstitutional domination of the State, and interference with the State’s functions, by The Church of Jesus Christ of Latter-day Saints (“the Church”), in violation of Article I, Section 4 of the Utah Constitution.

Art. I, Sec. 4 of the state constitution provides: "There shall be no union
of Church and State, nor shall any church dominate the State or interfere with its functions."

Christian Activist Charged After Video Of Book Burning

KCRG TV9 News reports that an Orange City, Iowa Christian activist has been charged with misdemeanor 5th Degree Criminal Mischief after making a Facebook Live video of himself burning four children's books checked out of the Orange City Public Library.  The video, made on the first day of the city's gay pride festival, showed him burning books titled "Two Boys Kissing," "This day in June," "Morris Micklewhite and the tangerine dress," and "Families, families, families."

Canada's Youth Job Program Changes Attestation Requirement After Objections By Pro-Life Groups

Global News reports that this year the Canada Summer Jobs program is changing its grant application process after objections last year from religious organizations to the requirement that they attest, in applying for funds, that "both the job and the organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights."  The rights covered included reproductive rights and non-discrimination on the basis of sexual orientation or gender identity. Anti-abortion groups sued arguing that the required attestation violated their freedom of expression and religious freedom. (See prior posting.) This year, no attestation is required. Instead the burden is on Service Canada to determine whether grant funds will be used to hire young people for work that will restrict reproductive right or promote prejudice or discrimination.

City Recreation Department Trip To Biblical Museums Cancelled After Objections

Christian Post reports that the Charleston, Illinois parks and recreation department has cancelled a planned town trip to southern Ohio and northern Kentucky that included visits to the Answers in Genesis Creation Museum and Ark Encounter. Freedom From Religion Foundation had complained to the city (full text of letter) that promotion of visits to these museums violates the Establishment Clause because it endorses the religious mission of museum founder Ken Ham.

EU Encourages Member States To Increase Fight Against Antisemitism

As reported by JTA, the Council of the European Union yesterday adopted a Council Declaration on the fight against antisemitism and the development of a common security approach to better protect Jewish communities and institutions in Europe (full text). Described by the European Jewish Congress as "unprecedented," the Declaration sets out eight steps that member states are encouraged to take, including increasing their security efforts for Jewish communities, institutions and citizens. Among the other suggested steps are:

implement[ing] a holistic strategy to prevent and fight all forms of antisemitism as part of their strategies on preventing racism, xenophobia, radicalisation and violent extremism....

endors[ing] the non-legally binding working definition of antisemitism employed by the International Holocaust Remembrance Alliance (IHRA) as a useful guidance tool in education and training, including for law enforcement authorities in their efforts to identify and investigate antisemitic attacks....

Santa Fe Archdiocese Files Under Chapter 11

In a letter from Archbishop John Wester (full text) dated Nov. 29, the Catholic Archdiocese of Santa Fe (NM) announced that it is filing for Chapter 11 Reorganization order the federal Bankruptcy Code in order to deal with the growing number of clergy sexual abuse claims.  The letter says in part:

Given our desire to care for all victim survivors, and given the fact that we have settled over 300 claims, but that such claims continue to be filed, I see this as the wisest and most prudent course to take. It is very important that everyone understand that we have not taken this step to avoid responsibility. On the contrary, we firmly believe that Chapter 11 is the most merciful and equitable way for the Archdiocese to address its responsibility to the victim survivors, to continue to meet its commitment to prevent abuse, and to continue its mission to all those who depend on the outreach of the Church. 

The cost of settlement of the over 300 cases which included insurance funds totaled approximately $52 million dollars of which the Archdiocese paid a substantial amount. Currently we have approximately 40 pending cases, which we need to address in a caring and Christ-like manner.

AP has additional background.

Studies Conclude Atrocities Against Rohingya Constitute Genocide

On Monday, the Public International Law and Policy Group, a global pro bono law firm, issued a 105-page report (full text) titled Documenting Atrocity Crimes Committed Against the Rohingya In Myanmar's Rakhine State. Here is an exceprt:

In March and April 2018, the Public International Law & Policy Group (PILPG), undertook an as yet unprecedented large-scale and comprehensive human rights documentation investigation mission in the refugee camps and settlement areas in Eastern Bangladesh. The purpose of this investigation mission was to provide an accurate accounting of the patterns of abuse and atrocity crimes perpetrated against the Rohingya in Myanmar’s Rakhine State and to help inform the policy decisions related to accountability in Myanmar....

Following its investigation mission, and with substantial support from an array of international attorneys and international criminal law experts, PILPG conducted a comprehensive legal analysis of the investigation’s factual findings....

The investigation mission documented a range of crimes amounting to crimes against humanity, including the particularly prevalent crimes of extermination, murder, rape and other forms of sexual violence, enslavement, forcible transfer, and persecution.... 

With regard to the crime of genocide, this Report concludes that there are reasonable grounds to believe that genocide was committed against the Rohingya in Myanmar’s northern Rakhine State....

Finally, this Report concludes that there are reasonable grounds to believe that war crimes were committed in relation to abuses and violence committed against the Rohingya in northern Rakhine State.....

The U.S. Holocaust Memorial Museum, citing other studies, also issued a statement (full text) reaching a similar conclusion. Politico reports that the U.S. House of Representatives is expected to pass H. Res. 1091 expressing the sense of the House that genocide and crimes against humanity have been committed.

Pennsylvania Supreme Court Says Names of 11 Priests Should Be Redacted From Grand Jury Report

In In re: Fortieth Statewide Investigating Grand Jury, (PA Sup. Ct., Dec. 3, 2018), the Pennsylvania Supreme Court in a 6-1 decision held that because of insufficient due process protections, the names of 11 priests petitioning the court should be redacted permanently from the publicly released grand jury report on sexual misconduct by Catholic clergy. The majority said in part:

... [T]he supervising judge’s limited review and approval of a grand jury report for public release gives it an imprimatur of official government sanction which carries great weight in the eyes of the public, and, thus, may compound the harm to a person’s reputation who is wrongly named therein. As such, we ordered the temporary redaction of Report 1 while we addressed the challenges to it. In the absence of any other viable remedy, we are compelled to find that these  redactions, with respect to Petitioners, must be made permanent.

We acknowledge that this outcome may be unsatisfying to the public and to the victims of the abuse detailed in the report. While we understand and empathize with these perspectives, constitutional rights are of the highest order, and even alleged sexual abusers, or those abetting them, are guaranteed by our Commonwealth’s Constitution the right of due process. It is the unfortunate reality that the Investigating Grand Jury Act fails to secure this right, creating a substantial risk that Petitioners’ reputations will be irreparably and illegitimately impugned....

Justice Baer filed a concurring opinion. Justice Dougherty also filed a concurring opinion, setting out procedures which he believes would provide adequate due process. Chief Justice Saylor dissented (full text), arguing that petitioners should be provided hearings (and an opportunity to testify, if they did not do so before the grand jury) before a judicial officer at which they are "provided the opportunity to advocate that the grand jury’s particularized findings of criminal and/or morally reprehensible conduct are not supported by a preponderance of the evidence." Philadelphia Tribune reports on the decision.

California City Settles Officer's Religious Discrimination Suit Against Police Chief For $2.3M

AP reports that last Friday the city of Beverly Hills, California agreed to pay $2.3 million to settle a religious discrimination lawsuit brought against it by Police Capt. Mark Rosen.  Rosen, who is Jewish, contends that Police Chief Sandra Spagnoli, through restructuring of the command staff, denied him opportunities for promotion because of his religion.  At least 20 other complaints of discrimination of various sorts have been filed against Chief Spagnoli since 2016. Rosen retired immediately after the suit was settled.

Religious Leaders Write On Religious Freedom Prospects Ahead

Deseret News on Monday posted an article titled What's next for religious freedom in 2019? Faith leaders and policymakers weigh in. The article features short essays from seven religious leaders of different faiths.

Guidance On Hate Crimes and Hate Speech Published By European Commission

The European Commission has published a Guidance Note dated November 2018 (full text) to assist member states of the European Union in enforcing national laws banning hate crimes and hate speech. The Note is designed to facilitate application of a 2008 Council of Europe Decision on Combating Racism and Xenophobia. The Note was compiled by an EU High Level Group created in 2016. [Thanks to Law & Religion UK for the lead.]

Congress Passes Bill Aimed At Prosecuting Iraq and Syria Genocide

Last week, Congress gave final passage to HR 390, the Iraq and Syria Genocide Relief and Accountability Act (full text). The bill now awaits President Trump's signature. The Act provides in part:

Sec. 4... It is the policy of the United States to ensure that assistance for humanitarian, stabilization, and recovery needs of individuals who are or were nationals and residents of Iraq or Syria ... is directed toward those ... with the greatest need, including those ... from communities of religious and ethnic minorities ... that .... have been identified as being at risk of persecution, forced migration, genocide, crimes against humanity, or war crimes.

Sec.5.... The Secretary of State and [USAID] ... are authorized to provide assistance ... to support the efforts of entities, including nongovernmental organizations with expertise in international criminal investigations and law, to address genocide, crimes against humanity, or war crimes ... by ISIS in Iraq....

Sec. 7... Not later than 90 days after the date of the enactment of this Act, the Secretary of State shall submit a report to the appropriate congressional committees that includes—... (2) an assessment of— (A) the feasibility and advisability of prosecuting ISIS members for whom credible  evidence exists of having committed genocide, crimes against humanity, or war crimes in Iraq, including in domestic courts in Iraq, hybrid courts, and internationalized domestic courts; and (B) the measures needed— (i) to ensure effective criminal investigations of such individuals....

[Thanks to Blog from the Capital for the lead.]

Religious Opposition To Furnishing Social Security Number Fails

In Ricks v. State of Idaho Contractors Board, (ID App., Dec. 3, 2018), an Idaho appeals court dismissed free exercise challenges to the state's requirement that an applicant for a contractor's license furnish his Social Security number.  Federal child support enforcement laws require states to collect Social Security numbers as part of applications for professional licenses if the state wishes to be eligible for certain federal grants.  George Ricks refused to furnish his Social Security number because of his religious belief that Social Security numbers are a form of the Biblical "mark of the beast."

The court rejected on pre-emption grounds Ricks argument that the requirement violates Idaho's Free Exercise of Religion Protected Act (FERPA):

 [T]he operation of FERPA, in the context of the cooperative endeavor between Congress and the Idaho Legislature, does impede 42 U.S.C. § 666(a)(13)’s objective of improving child support enforcement effectiveness by exempting individuals from I.C. § 73-122’s and I.C. § 54-5210’s requirement of providing social security numbers on professional license applications. In other words, an exemption granted by FERPA would make it more difficult to locate a parent who may have outstanding child support obligations through the Federal Parent Locator Service database. Because this amounts to a direct conflict with Congress’s intent in passing 42 U.S.C. § 666(a)(13), 42 U.S.C. § 666(a)(13) preempts FERPA in this context.

The court rejected Ricks' federal RFRA argument because no federal defendant was named. Finally it rejected his First Amendment and state constitution free exercise claims finding that the laws at issue are neutral laws of general applicability. The court also released a summary statement of its holding.

Recent Articles of Interest

From SSRN:

• Richard W. Garnett, 'There Are No Ordinary People': Christian Humanism and Christian Legal Thought, (56 J. Cath. Leg. Stud. 77 (2017)).
• Kevin M. Barry, The Death Penalty & The Fundamental Right to Life,(November 20, 2018).
• Tarunabh Khaitan & Jane Calderwood Norton, The Right to Freedom of Religion and the Right against Religious Discrimination: Theoretical Distinctions, (Oxford Legal Studies Research Paper (Oct. 2018)).
• Tarunabh Khaitan & Jane Calderwood Norton, Religion in Human Rights Law: A Normative Restatement, (Oxford Legal Studies Research Paper (Oct. 2018)).
• Robin Fretwell Wilson & Shaakirrah Sanders, By Faith Alone: When Religious Beliefs and Child Welfare Collide, (Chapter in: The Contested Place of Religion in Family Law, May 2018, Cambridge University Press).
• Perry Dane, Corporations, (Routledge Companion to Economic Theology, Forthcoming).
• David L. Hudson, Justice Kennedy and the First Amendment, (9 HLRe 49 (2019)).
• David Eliot Bernstein, The Boundaries of Antidiscrimination Laws, (George Mason University Legal Studies Research Paper No. LS 18-34 (2018)).

From SSRN (Non-U.S. Law):

• Yudhanjaya Wijeratne, The Control of Hate Speech on Social Media: Lessons from Sri Lanka, (CPR South, 2018, Policy Brief).
• Mohammad Fadel, Modern Islamic International Law between Accommodation and Resistance: The Case of Israel and BDS, (19 Yearbook of Islamic and Middle Eastern Law (2016-2017), pp. 247-78 (December 13, 2018, Forthcoming).
• Kyriaki Pavlidou, Religious Expression in the Workplace Before the European Court of Human Rights and the Court of Justice of the European Union: Discriminating Against a Fundamental Right?, (Applying Non-Discrimination Law, Goulas D. and Kofinis St. (eds.), Hellenic League for Human Rights, Thessaloniki, 2018, pp. 146-193).
• Tarunabh Khaitan, Discrimination, (Max Planck Encyclopedia of Comparative Constitutional Law, 2017).

President Trump's Hanukkah Message

Yesterday the White House issued a Presidential Message on Hanukkah which in part connects the holiday that began yesterday evening with recent events;

For eight nights, Jewish families and friends will come together to engage in the lighting of the menorah.  This special tradition started more than 2,000 years ago during the rededication of the Holy Temple in Jerusalem, which followed a trying period when Jews were persecuted for practicing their faith.

Unfortunately, Jews today continue to face many different forms of violence, hatred, and bigotry around the globe.  We remember all those from the Tree of Life—Or L’Simcha Congregation—whose lives were tragically taken in Pittsburgh, Pennsylvania, this past October.  As one Nation, we pledge our continued love and support for the victims, their families, and the community, and we pray that the victims’ families find some measure of peace and comfort during this holiday season.

Recent Prisoner Free Exercise Cases

In Jannisch v. Bates, 2018 U.S. Dist. LEXIS 199718 (D MY, Nov. 26. 2018), a Montana federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 200612, Aug. 27, 2018) and dismissed a Native American inmate's complaint regarding confiscation and destruction of his religious property.

In Salas v. Ducart, 2018 U.S. Dist. LEXIS 199724 (ND CA, Nov. 26, 2018), a California federal district court allowed a Jewish inmate to move ahead with complaint regarding the availability of kosher meals, religious meal ceremonies and a Seder meal.

In Vann v. Griffin, 2018 U.S. Dist. LEXIS 201577 (SD NY, Nov. 28, 2018), a New York federal district court dismissed an inmate's complaint that correctional officers on five occasions interfered with his religious practice by touching his Santeria beads, crushing his cigar, looking through his religious pouches, or desecrating his religious objects.

In Alsaifullah v. State of New York, 2018 N.Y. App. Div. LEXIS 8141 (NY App. Div., Nov. 29, 2018), a New York state appeals court held that the Court of Claims properly dismissed a Muslim inmate's complaint that he was deprived of meals for two holy days.

In Bybee v. Monroe County Detention Facilities, 2018 U.S. Dist. LEXIS 202452 (SD FL, Nov. 28, 2018), a Florida federal magistrate judge recommended denying a temporary restraining order to an inmate complaining about access to kosher food.

Another Contraceptive Coverage Mandate Case Is Settled

Another of the challenges by religious non-profits to the Obama administration's Affordable Care Act contraceptive coverage mandate has been disposed of by the courts.  The Trump administration has expanded the exemption available for those with religious or moral objections to the mandate and numerous of the cases have already been, with the acquiescence of the government, decided in favor of the objectors. In the latest, the 11th Circuit has issued an order (full text) in Eternal Word Television Network, Inc. v. Secretary of the U.S. Department of Health and Human Services, (11th Cir., Nov. 29, 2018), vacating the district court's order granting partial summary judgment to defendants and remanding the case.  As explained in a press release from ETWN:

Following the Supreme Court’s decision in Zubik, the Court of Appeals vacated its own negative order against EWTN on May 31, 2016.  The court’s order asked for further briefing on the matter while the parties worked toward a settlement. 

Attorneys for EWTN and the Department of Justice negotiated terms of a settlement under which the government agreed not to enforce the contraceptive mandate against the network, and that EWTN would ask the 11th Circuit Court of Appeals to vacate the District Court’s decision. The 11th Circuit granted that request on Nov. 29.

New York Issues Regulations For Review Of Religious Schools' Curricula

On Nov. 20, the New York State Education Department issued guidelines for Substantial Equivalency Review of the curriculum of non-public religious and independent schools (full text), along with related materials.  As reported by The Forward:

The regulations come years into a growing controversy over whether New York’s Hasidic yeshivas are providing education that is substantially equivalent to that offered in public schools, as is required by state law....

The guidelines ... are based on a controversial law passed as part of last summer’s budget deal.... The new law says that the state education commissioner, rather than local school districts, will determine equivalency for schools that meet certain criteria that were drawn only to include Hasidic yeshivas.

(See prior related posting.)

Should Japanese Government Pay For Shinto Royal Rites?

The Telegraph reports:

Prince Akishino, the younger son of Japan’s Emperor Akihito, has stirred controversy by suggesting that the state should not cover the cost of a Shinto religious ritual for his older brother’s accession to the Chrysanthemum Throne next year....

Instead, he said the cost of the Daijosai rite in November should come directly from the imperial family’s funds.....

Under the terms of the constitution, the government is not permitted to engage in religious activities and there are some, apparently including the prince, who believe that the government paying for the two-day Shinto Daijosai ritual runs contrary to those rules.

Hasidic Jewish School Sues For Right To Expand

A lawsuit was filed this week in a New York federal district court against the Village of Airmont charging that the village and its school board are engaged in a coordinated effort to prevent the local Hasidic Jewish community from expanding a religious school which operates on a 21-acre piece of land.  The 75-page complaint (full text) in Central UTA of Monsey v. Village of Airmont, New York, (SD NY, filed 11/28/2018), claims violations of RLUIPA, the 1st and 14th Amendments and the New York state constitution, contending:

Village officials have attempted to place a cap on the total number of Hasidic Jewish children that may be educated at Central UTA's Hasidic Jewish religious school, angry protesters have prevented a meeting of the Planning Board to consider Central UTA's application to build two new school buildings from occurring, and Village officials' political campaign advertisements paint an apocalyptic picture of what will happen if their opponents who support the rights of the Hasidic Jewish community are elected....

Defendants are using their political policymaking and enforcement authority to use the Village's zoning laws and ordinances to prevent and dissuade Hasidic Jews from joining their community and denying those families that have moved to the area their rights to school services that are guaranteed under the law.

First Liberty issued a press release announcing the filing of the lawsuit.

Hopi Tribe Loses Public Nuisance Challenge To Snowbowl Expansion

In Hopi Tribe v. Arizona Snowbowl Resort Limited Partnership, (AZ Sup. Ct., Nov. 29, 2018), the Arizona Supreme Court in a 5-2 decision, rejected the Hopi Tribe's attempt to invoke public nuisance law to challenge the sale of wastewater to make artificial snow at a ski resort on federal land.  The land has been traditionally used by the Hopi for religious and ceremonial purposes.  Under Arizona law, a private party can challenge a public nuisance only if the party can show special injury different from that suffered by the public at large. In the latest chapter of the Hopi's long-running attempt to challenge the Snowbowl expansion, the majority held that environmental damage to public land with religious, cultural, or emotional significance to the tribe is not enough to create "special injury." The majority said in part:

because a particular place’s religious importance is inherently subjective, ... courts are ill-equipped to determine whether “one form of incidental interference with an individual’s spiritual activities” should be analyzed differently from that of another....

At its core, the special injury requirement serves a gatekeeping function that prevents courts from deciding issues under the guise of public nuisance claims when such issues are best left to public officials, a pivotal principle in federal cases grappling with religious freedom challenges to public land uses.

Chief Justice Bales, joined by Justice Bolick, dissented, saying in part:

[T]he Hopi face the destruction and desecration of some of their most sacred locations and practices. This is the harm that the majority claims is no different than that suffered by the public at large.... But the general public does not have millennia of religious practice in the area that will be covered in a fine film of reclaimed sewage. Nor does the general public have rights of access and use - rooted in Hopi tradition and cultural practices - recognized by federal statutes.

Arizona Republic reports on the decision.

Suits Proliferating Against Airbnb Over West Bank Delistings

Lawsuits are proliferating against Airbnb for its decision last week to delist rentals in Israeli settlements in the West Bank.  In addition to the arbitration proceeding previously reported, a suit under the federal Fair Housing Act was filed in Delaware federal district court. Delaware is Airbnb's state of incorporation. (Reuters). According to JTA, the 18 plaintiffs in the lawsuit either own property in Israel or have rented property there in the past through Airbnb. Separately a suit was filed against Airbnb in an Israeli court alleging discrimination in violation of Israeli law, and a separate suit in Israeli courts against Human Rights Watch for its involvement in Airbnb's action is in the offing. (JTA).

Appeals Court Vacates Invalidation of California's Assisted Suicide Law

In People ex rel Becerra v. Superior Court of Riverside County, (CA App., Nov. 27, 2018), a California state appellate court issued a writ of mandate ordering the trial court to vacate its decision striking down California's End of Life Option Act.  The Act legalizes physician-assisted suicide for the terminally ill.  The trial court had held that the Act was outside the scope of the proclamation calling the special session of the legislature that passed it.  The majority in the appellate court held that plaintiffs-- doctors and a Christian medical society-- lack standing to bring the challenge.  Judge Slough, dissenting in part, argued that the court should reach the merits of the challenge to the law and should hold that the law was constitutionally enacted.  Courthouse News Service reports on the decision.

White House Christmas Decorations Unveiled

On Monday the White House issued a press release and accompanying video on the this year's White House Christmas decorations which reflect the theme "American Treasures".  The press release reads in part:

“This is a joyous time of year when we decorate the White House for the Christmas Season,” said First Lady Melania Trump. “Our theme honors the heart and spirit of the American people.  Thank you to the many volunteers and staff who worked hard to decorate the halls of the People’s House in Christmas cheer.  On behalf of my family, we wish everyone a very Merry Christmas and a Happy New Year.”

Suit Against Scranton Diocese Over Priest Sexual Abuse

In another lawsuit growing out of the Pennsylvania grand jury report released in August, a teenage sexual abuse victim-- now 29 years old-- filed suit on Tuesday against the Diocese of Scranton, three bishops, and former priest Jeffrey Paulish.  Paulish, who served several months in jail for abusing another 15-year old boy, was named in the grand jury report. According to the Pittsburgh Post-Gazette:

Lawyers say they plan to subpoena the diocese for information about Paulish’s history in the diocese.

The grand jury report found that Paulish was transferred 11 times in his 18 years as a priest and was given leaves of absence both before and after their client says he was abused. They think that could mean that current Bishop Joseph Bambera was aware of Paulish’s abusive behavior before he was arrested in 2013.

Parents Sue Archdiocese and Pre-School Over Sexual Abuse

A suit was filed yesterday in a Pennsylvania state trial court against the Archdiocese of Philadelphia and a pre-school, St. Francis Learning Center, by parents of three toddlers who were sexually abused by a lay teacher.  The suit charges that the defendants did not properly screen the teacher and did not notify parents when other children made accusations against the teacher.  The Archdiocese said it promptly reported accusations to authorities. The teacher is serving a 4 to 8 year sentence after pleading guilty. AP reports on the lawsuit.

European Court Finds Russia's Ban On Public LGBT Events A Convention Violation

In Alekseyev v. Russia, (ECHR, Nov. 27, 2018), the European Court of Human Rights in a chamber judgment by a panel of 7 judges held that Russia violated the protections on freedom of assembly (Art. 11) and the prohibition against discrimination (Art. 14) in the European Convention on Human Rights when it banned the holding of public LGBT events. It also found a violation of Art. 13's guarantee of a remedy in national courts for Convention violations. The Court emphasized that it had rendered a similar opinion in a 2010 case against Russia.  Judge Keller dissenting in part argued that damages should have been awarded in the case, rather than just entering a finding of violations of the Convention.  AP reports on the decision.

Witnesses May Take Oath on Eagle Feathers In Two More Canadian Provinces

In two more Canadian provinces, Indigenous Peoples will now have the option of taking the oath as a witness using Eagle feathers instead of a Bible.  Earlier this month, the Nova Scotia court system adopted the practice (CBC News). Yesterday it was reported that a similar step was taken at the Lethbridge, Alberta Courthouse. (CBC News).  These follow introdction of the option almost three years ago at the Ottawa, Ontario Courthouse. (CBC News).

Claim Filed Against Airbnb For Its Delisting of West Bank Rentals

As reported by the New York Times, last week Airbnb under pressure from Palestinian officials, anti-settlement advocates and human rights groups announced that it is removing listings for rentals in Israeli settlements in the West Bank.  In response, yesterday an arbitration claim (pursuant to the arbitration clause in Airbnb's terms of service) was filed against Airbnb by an Israeli company owned by a resident of New York.  The Statement of Claim (full text) in Bibliotechnical Blue & White Ltd. v. AIRBNB, Inc., (Amer. Arbitration Assoc., filed 11/26/2018) alleges in part:

Claimant recently registered as a user of Respondent's services. This was done in the City of New York. Claimant would like to purchase or purchase or lease property in Judea & Samaria and list it with Respondent's services using computer services in the City of New York. Thus, Respondent's policy is discriminatorily preventing Claimant from using Respondent's services in the City of New York....

Respondent has violated the New York City and New York State human rights laws by discriminating on the basis of religion, national origin and/or citizenship and also by engaging in a discriminatory boycott.

Legal Insurrection blog reports in more detail on the case.

Jury Awards $75,000 To Couple Whose Christmas Program Was Opposed By Homeowners Association

The Spokane Spokesman-Review reports that a federal court jury in Idaho last month awarded $60,000 in compensatory damages and $15,000 in punitive damages against a Homeowners Association that attempted to block a resident from setting up an elaborate Christmas display. The jury, in the case which attracted national media attention when filed, found that the Homeowners Association engaged in religious discrimination in violation of the Federal Fair Housing Act when it sent a letter to Jeremy and Kristy Morris telling them that if they wanted to move into the neighborhood they would need to cancel plans for their annual 5-day Christmas celebration.  The celebration features elaborate decorations, live music, and live animals, draws thousands of people, and raises money for charities benefiting children suffering from cancer and abused children. The HOA letter, in addition to claiming that the celebration would violate lighting and noise rules, added: "And finally, I am somewhat hesitant in bringing up the fact that some of our residents are non-Christians or of another faith, and I don’t even want to think of the problems that could bring up."  This was portrayed by some media as part of the so-called "war on Christmas." More details on the lawsuit and photos of the celebration are at The Daily Mail and the Coeur d'Alene Press.

New York Village Is Considering New Permit Requirement For Eruvs

According to yesterday's Times Herald-Record, the Village Board of Woodbury, New York is considering a new law (full text) that for the first time will require residents to obtain a permit in order erect an eruv that extends into any right of way. Currently the village's growing Hasidic Jewish population has erected a number of eruvs, and the new law is directed at creating some uniformity among them. A permit application (including photos) will be required to describe the location and dimensions of any eruv, and provide written consent from all homeowners whose property it would cross. The eruv (usually made of fishing line, or of markers on utility poles) would need to be between 8 and 20 feet high, and translucent or the same color as the pole to which it is attached. Non-complying eruvs could not cross any public road, and existing non-complying eruvs that do cross public roads will need to be removed within 90 days of enactment of the new law. The proposed law would also regulate cell towers being placed on utility poles.

Recent Articles and Books of Interest

From SSRN:

• Bob Rush & Steve Sanders, Brief Amici Curiae of Scholars of Law, History, Bioethics, Gender, and Sexuality in Good v. Iowa Dept of Human Resources, (November 4, 2018).
• Marc Greendorfer, Discrimination as a Business Policy: The Misuse and Abuse of Corporate Social Responsibility Programs, (November 6, 2018).
• Etienne Toussaint, The New Gospel of Wealth: On Social Impact Bonds and the Privatization of Public Good, (56 Hous. L. Rev. 153 (2018)).

From SmartCILP:

• Yehezkel Margalit, Towards Establishing Parenthood by Agreement in Jewish Law, 26 American University Journal of Gender, Social Policy and the Law 647-689 (2018).
• Yolanda Rondon, Treatment of Domestic Terrorism Court Cases: Class and Mental Health in the Criminal System, 26 American University Journal of Gender, Social Policy and the Law 741-792 (2018).
• Symposium on Families and Religion. Articles by Larry O.C. Chukwu, Patrick F. Fagan, William L. Saunders, Lynn D. Wardle. 32 Brigham Young University Journal of Public Law 191-255 (2018).

Recent and Forthcoming Books:

• Ronald Hutton, The Witch: A History of Fear, from Ancient Times to the Present, (Yale Univ. Press, Oct. 2018).
• Donald A. Westbrook, Among the Scientologists: History, Theology, and Praxis, (Oxford Univ. Press, Dec. 2018).
• Mohammad Hashim Kamali, Crime and Punishment in Islamic Law: A Fresh Interpretation, (Oxford Univ. Press, Jan. 2019).
• Giuliana Chamedes, A Twentieth-Century Crusade: The Vatican’s Battle to Remake Christian Europe, (Harvard Univ. Press, June 2019).
• Adriano Prosperi, Crime and Forgiveness: Christianizing Execution in Medieval Europe, (Harvard Univ. Press, July 2019).

Recent Prisoner Free Exercise Cases

In Johnson v. Lassiter, 2018 U.S. Dist. LEXIS 193660 (WD NC, Nov. 13, 2018), a North Carolina federal district court dismissed an inmate's complaint that he was deprived of his religious literature and, when he said he needed his religious literature, he was told that Rastafarian or Moorish Science is not a real religion.

In Scott v. Lewis, 2018 U.S. Dist. LEXIS 193870 (ED MO, Nov. 14, 2018), a Missouri federal district court allowed a Hindu inmate to move ahead with his RLUIPA action for an injunction for failure to accommodate his vegetarian religious diet.

In Collins v. Williams, 2018 U.S. Dist. LEXIS 194187 (D SC, Nov. 13, 2018), a North Carolina federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 194229, Oct. 18, 2018) and dismissed an inmate's complaint that he was denied publications, right to attend gatherings and observe holy days of Nation of Gods and Earths because the group was improperly identified as a security threat group.

In Monroe v. Tyo, 2018 U.S. Dist. LEXIS 195078 (ND NY, Nov. 14, 2018), a New York federal magistrate judge recommended that a former inmate who is Muslim be allowed to move ahead with his complaint that he was required to drink water to provide a urine sample for a drug test during Ramadan.

In Carpenter v. Itawamba County Jail, 2018 U.S. Dist. LEXIS 195849 (ND MS, Nov. 16, 2018), a Mississippi federal magistrate judge concluded that restricting an inmate's access to a Christian pastor when the inmate was not a Christian did not interfere with his free exercise rights.

In Richard v. Strom, 2018 U.S. Dist. LEXIS 196327 (D CT, Nov. 19, 2018), a Connecticut federal district court allowed a Moorish-American inmate to move ahead with claims that he was not permitted to purchase a fez or receive a book, "Nationality, Birthrights and Jurisprudence." However it dismissed his complaint that the Grand Mufti's return address was torn from correspondence he received.

In Heritage Family Church, Inc. v. Kansas Department of Corrections, 2018 U.S. Dist. LEXIS 197543 (D KA, Nov. 20, 2018), a Kansas federal district court denied a preliminary injunction to an inmate who claims that his religious exercise is burdened in various ways (including services, texts and clothing) by the refusal to recognize the Apostolic Faith.

In Hopper v. County of Riverside, 2018 U.S. Dist. LEXIS 198877 (CD CA, Nov. 20, 2018), a California federal magistrate judge held that a former detainee's complaint that he was unable to attend group religious services is subject to dismissal.

DOJ Seeks Early Supreme Court Review of Transgender Military Policy

As reported by SCOTUblog, the Justice Department has filed petitions for certioriari in three cases in which district courts have enjoined implementation of the Trump Administration's new policy on transgender individuals serving in the military.  The petitions in all three cases, Trump v. Karnoski, Trump v. Doe, and Trump v. Stockman, were filed before Circuit Courts of Appeal handed down decisions in the cases-- an unusual procedural step.  The Trump Administration policy-- unlike the policy adopted by the Obama Administration-- precludes most new enlistments by transgender individuals. (See prior posting.) The cert. petitions argue for the immediate granting of review:

Absent an immediate grant of certiorari, there is ... little chance of a prompt resolution of the validity of Secretary Mattis’s proposed policy. And so long as this or any other injunction remains in place, the military will be forced nationwide to maintain the Carter policy—a policy that the military has concluded poses a threat to “readiness, good order and discipline, sound leadership, and unit cohesion,” which “are essential to military effectiveness and lethality.”

Twitter CEO Charged In Indian Court With Outraging Religious Feelings

According to Times of India yesterday, a local court in Jodhpur, India has agreed to move ahead with a complaint against Twitter CEO Jack Dorsey for his Tweet of an anti-Brahmin photo.  The photo taken by Dorsey during his recent trip to India shows a woman holding a sign reading "Smash Brahminical Patriarchy". The petition filed against Dorsey charges him with violation of India's Penal Code Sec. 295A (Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs), as well as with defamation and criminal conspiracy. A hearing is set for Dec. 1.

President's Thanksgiving Day Proclamation

Donald Trump this week issued a formal Proclamation (full text) declaring today as a National Day of Thanksgiving. The Proclamation reads in part:

We are especially reminded on Thanksgiving of how the virtue of gratitude enables us to recognize, even in adverse situations, the love of God in every person, every creature, and throughout nature. Let us be mindful of the reasons we are grateful for our lives, for those around us, and for our communities. We also commit to treating all with charity and mutual respect, spreading the spirit of Thanksgiving throughout our country and across the world.

DOJ Files Statement of Interest In Church's Challenge To Limits On Use of Civic Center

As previously reported, in August a suit was filed in a South Carolina federal district court against Edisto Beach challenging the Town's rule change that prohibits renting space in the town's Civic Center for religious worship services.  Now the lawsuit has attracted the attention of the Justice Department. On Tuesday, DOJ filed a Statement of Interest (full text) in Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, arguing in part:

... [T]he Town’s legally erroneous “concerns” about Establishment Clause liability turn First Amendment jurisprudence on its head: the First Amendment prohibits the content-based and viewpoint-based restrictions on protected speech that the Town seeks to permit and permits religious worship services the equal access to government facilities that the Town seeks to prohibit.

Charleston Post and Courier reports on developments.

Court Bars Enforcement of Trump's Limitation on Asylum Seekers

In East Bay Sanctuary Covenant v. Trump, (ND CA, Nov. 19, 2018), a California federal district court issued a temporary restraining order against implementation of a Presidential Proclamation and implementing rule that allow asylum to be granted only to refugees who cross the border at a designated port of entry.  8 USC Sec. 1158(a) provides:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival ...), irrespective of such alien’s status, may apply for asylum....

Focusing on this section and on treaty obligations, the court said in part:

The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the INA and the expressed intent of Congress. Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.

A hearing on whether a preliminary injunction should issue in the case was set for Dec. 19.  Washington Post reports on the decision. The decision led to an unusual war of words between President Trump and Chief Justice John Roberts.

9th Circuit: Animal Rights Group Lacks Standing To Challenge Kapparot Practices

In United Poultry Concerns v. Chabad of Irvine, (9th Cir., Nov. 20, 2018), the U.S. 9th Circuit Court of Appeals held that an animal rights group lacks standing to sue a Jewish religious organization for violating California's Unfair Competition Law. The suit challenged Chabad's sponsoring of kapparot -- an atonement ritual carried out before Yom Kippur involving the use and slaughter of live chickens.  The district court had reached the merits of the claim and had held that the acceptance of a donation in connection with the performance of religious ritual is not covered by the state's Unfair Competition Law. (See prior posting.) The 9th Circuit, by contrast, held that plaintiff was not injured by Chabad's actions and so lacks Article III standing. It vacated the district court's judgment and ordered the case dismissed for lack of jurisdiction. Metropolitan News-Enterprise reports on the decision.

Court Invalidates Mississippi's Restrictive Ban On Abortions

In Jackson Women's Health Organization v. Currier, (SD MS, Nov. 20, 2018), a Mississippi federal district court held unconstitutional a recently enacted Mississippi statute that prohibits most abortions after 15 weeks gestation.  The court said in part:

[T]he real reason we are here is simple. The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade.

This Court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.

Bustle reports on the decision.

2 Philadelphia Police Officers Claim Anti-Semitic Harassment

Two Philadelphia police officers filed suit on Monday against the Philadelphia Police Department and Department supervisors alleging the creation and sanctioning of a racist, anti-Semitic and anti-Jewish environment. The complaint (full text) in Gonzalez v. City of Philadelphia, (ED PA, filed 11/19/2018) seeks damages for harassment, discrimination and hostile work environment in violation of 42 USC Secs. 1981, 1983 and 1985. WHYY News further summarizes the complaint:

The federal civil rights lawsuit claims an array of abuse — that the officers were not given time off to celebrate Jewish holidays, that a Nazi “SS” symbol and a German phrase meaning “skull and crossbones” were scratched onto their lockers, and that a police patrol car was marked with the Star of David with the words “Hebrew Hammer.”

Civil rights lawyers Brian Mildenberg, who is representing the officers, said those acts were intended to “scare and harass” Reznik, a Jewish immigrant born in Russia who is a 12-year veteran of the force.

Pastor Sues To Access Homeless Encampment

The Episcopal Diocese of Olympia reports on a lawsuit filed in a Washington federal district court on Monday against the city of Aberdeen, Washington by an Episcopal priest and two others over access to a homeless encampment. The city has purchased the land and intends to clear it, but in the meantime is requiring anyone entering the site to obtain a permit. Rev. Sarah Monroe, who was denied a permit, explains the lawsuit:

My permit to visit this encampment was denied by the city on the grounds that I did not provide enough detail, or a schedule, or a clear list of what I intend to do during my visits. I am a priest. I have been pastoring the people in this camp for five years. I do everything from drive people to the hospital, to prayer, to taking people to social service appointments, to performing last rites when people die here. These essential pastoral duties do not happen on a schedule, as any member of the clergy can attest. I have continued to visit people, even though I have been denied a permit, and am petitioning the court to prevent the city from arresting me.

Homeless people have a constitutionally protected right to freedom of religious expression. I have a constitutionally protected right to my freedom of religious expression, which includes serving the poor and the sick and the hungry.

California Appeals Court OK's Repeal of Belief Exemption To Immunization Requirements

In Love v. Department of Education, (CA App., Nov. 20, 2018), a California state appellate court rejected state constitutional challenges to a California law that repealed the personal belief exemption to the state's immunization requirements for school children.  Saying that "Plaintiffs’ arguments are strong on hyperbole and scant on authority," the court rejected claims that the repeal violates the constitutional right to attend school, substantive due process, or rights of privacy or free exercise of religion.

Ecclesiastical Abstention Does Not Require Dismissal of Negligent Supervision Claim

In Bourque v. Roman Catholic Diocese of Charlotte, NC, (NC App., Nov. 20, 2018), a North Carolina appellate court held that the ecclesiastical abstention doctrine does not require dismissal of a suit alleging negligent supervision and negligent infliction of emotional distress. However it does require dismissal of a negligent hiring claim. The suit alleges that a male church youth leader raped a 14-year old female who sought counsel from him about being bullied. Four years later, he repeatedly raped her again. The court said in part:

Plaintiffs’ claim is not barred by the First Amendment because determining whether Bishop Jugis and the Diocese knew or had reason to know of Defendant’s proclivities for sexual wrongdoing requires only the application of neutral principles of tort law, and “the application of a secular standard to secular conduct that is tortious is not prohibited by the Constitution.”

Court Orders Release of Iraqi Chaldean Detainees

A Michigan federal district court yesterday, in the latest installment in a case filed last year, ordered the release from federal detention of hundreds of Iraqi deportees who have been issued final removal orders, but whom the government has been unable to repatriate. Most of the detainees, according to the court, "are Chaldean Christians who would face persecution, torture, and possibly death if returned to Iraq." In Hamama v. Adducci, (ED MI, Nov. 20, 2018), the court said in part:

The law is clear that the Federal Government cannot indefinitely detain foreign nationals while it seeks to repatriate them, when there is no significant likelihood of repatriation in the reasonably foreseeable future. This principle emanates from our Constitution’s core value of rejecting arbitrary restraints on individual liberty.

The issue the Court now resolves is whether there is such a likelihood of repatriation for scores of Iraqi nationals whom the Government has detained for an extended period—many for well over a year—while it engages in a diplomatic dialogue with Iraq that has yet to produce any clear agreement on repatriation. In fact, the weight of the evidence actually uncovered during discovery shows that Iraq will not take back individuals who will not voluntarily agree to return. This means that the Iraqi detainees could remain locked up indefinitely—many in local jails.... [T]he Government has acted ignobly in this case, by failing to comply with court orders, submitting demonstrably false declarations of Government officials, and otherwise violating its litigation obligations—all of which impels this Court to impose sanctions.

As explained fully below, the Court will grant a preliminary injunction, as requested by Petitioners in this case, ordering that those detained more than six months be released under orders of supervision.

ACLU issued a press release announcing the decision.