Vatican's Delay of U.S. Bishops Proposals Explained

AP reports today that the surprising Vatican directive to U.S. bishops last November precluding them from discussing proposed standards of conduct for bishops (see prior posting) stemmed from the fact that the Vatican had received a draft of the proposals only 4 days before the U.S. bishops' conference began. According to AP's report on a letter from Vatican Cardinal Marc Oulett:

While [Conference of Bishops President Cardinal Daniel] DiNardo blamed the Vatican, the letter from Ouellet suggests that the Vatican thought DiNardo had tried to pull a fast one by intentionally withholding legally problematic texts until the last minute.

Split of Ukrainian Orthodox Church From Moscow Looms

The New York Times reported yesterday that in a move having significant political as well as religious significance, the Ukrainian Orthodox Church is about to formalize its separation from the Moscow-based Orthodox Patriarchate:

Intensifying a millennium-old religious struggle freighted with 21st-century geopolitical baggage, Ukraine’s security services have in recent weeks interrogated priests loyal to Moscow, searched church properties and enraged their Russian rivals....

The new Ukrainian church is expected to be granted legitimacy on Jan. 6, the eve of the Orthodox Christmas, when its newly elected head, Metropolitan Epiphanius, travels to Istanbul to receive an official charter from the Constantinople patriarchate, a longtime rival power center to Moscow.

Happy New Year 2019

Dear Religion Clause Readers:

Happy New Year 2019! I hope you continue to find Religion Clause an important resource for news on religious liberty and church-state developments. I continue to strive for objectivity in my posts and to provide links to an abundance of primary source material underlying each post.  I am pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, clergy, governmental agency personnel, students and others working professionally dealing with church-state relations and religious liberty concerns in the U.S. and around the world.

It has been a year in which some of the most highly charged church-state and religious liberty issues have been a bit defused by judicial and administrative decisions.  However, challenges to many of those administrative regulations are still working their way through the courts.  Similarly a number of the questions which courts have avoided through narrow decisions will inevitably arise again in the coming years.  Also this past year, a number of judicial and legislative developments abroad have continued to reflect interesting approaches to religious liberty concerns.

Thanks again to all of you who are loyal readers-- both those who have followed Religion Clause for years and those of you who have only recently discovered the blog.  A special thanks to readers who have quickly sent me leads on recent developments, and to those who have alerted me to mistakes. All of you have made Religion Clause the most recognized and reliable source for keeping informed on the intersection of religion with law and politics. I encourage you to recommend Religion Clause to colleagues, students and friends who might find it of interest.  I particularly renew this request this year because, for reasons inexplicable to me, there has been a fall off of page views during the last quarter of 2018 as recorded by the counters I use.  Religion Clause is accessible via Twitter and Facebook, as well as through traditional online access and RSS feeds.

I also remind you that the Religion Clause sidebar contains links to a wealth of resources.  Please e-mail me if you discover broken links or if there are other links that I should consider adding.

Best wishes for 2019!  Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions.

Howard M. Friedman

Court Refuses To Dismiss Suit Over Parents' Religious Promise

In Gonzales v. Mathis Independent School District, (SD TX, Dec. 27, 2018), a Texas federal district court refused to dismiss a claim under the Texas Religious Freedom Restoration Act by parents of school children who were unable to participate in interscholastic extra-curricular activities because of their violation of grooming standards..  The facts at issue are summarized by the court:

Parents are Hispanic and practice the Roman Catholic religion. As an expression or exercise of their faith and heritage, and in a promise (promesa) to God, Parents have kept a strand of hair on the back of the Children’s heads uncut since birth. More recently,the Children have adopted that promise as their own affirmation of faith and heritage and continue to maintain the single long braid down their backs. However, Parents admit that the promise is not dictated by the Catholic religion and they could change it at any time.

[Thanks to Eugene Volokh via Religionlaw for the lead.] 

Recent Prisoner Free Exercise Cases

In Pattison v. State Department of Corrections, 2018 Nev. App. Unpub. LEXIS 962 (NV App., Dec. 17, 2018), a Nevada appellate court held that the trial court did not abuse its discretion in denying a permanent injunction to require the Department of Corrections to furnish an inmate kosher meals.

In Jackson v. Mike-Lopez, 2018 U.S. Dist. LEXIS 215692 (D MN, Dec. 20, 2018), a Minnesota federal magistrate judge recommended dismissing claims of several inmates that their placement in segregation prevented them from taking part in various religious practices.

Objection To Immunization Was Not A Religious Belief

In Potter v. St. Joseph's Medical Center, (MN App., , Dec. 24, 2018), a Minnesota appellate court held, in a case involving the denial of unemployment benefits, that a claimant's refusal to obtain an influenza shot "was driven by a personal, secular belief," not a religious one.  The court said in part:

Potter's assertion that her faith requires that she not inject herself with impurities is undercut by her own rationale. Potter stated that if the flu shot was scientifically proven to be effective she "probably would" receive it. It follows that Potter is unwilling to inject what she considers scientifically ineffective impurities but is willing to inject what she considers scientifically effective impurities. This supports the respondents' assertion that Potter's beliefs are not sincerely held religious beliefs, but, rather, "her objection was based on her medical and scientific views, cloaked under the guise of religion."

State AGs Seek To Enjoin Final Broad ACA Exemptive Rules On Contraceptives

Attorneys general from 14 states have filed a motion for a preliminary injunction in a California federal district court against various federal departments.  The motion seeks to prevent Trump Administration rules expanding religious and moral exemptions from the Affordable Care Act contraceptive coverage mandate from taking effect. The motion and memorandum in support (full text) in State of California v. Azar, (ND CA, filed 12/19/2018) contends that the new rules are contrary to the text and purpose of the Affordable Care Act and were adopted without meeting Administrative Procedure Act requirements. Interim Final Rules similar to the Final Rules at issue in the case have already been enjoined by the courts. (See prior posting.)  Consumer Affairs reports on the preliminary injunction motion.

Australian Court Says Beth Din May Not Impose Religious Sanctions To Force Party To Appear

In Ulman v Live Group Pty Ltd., (New South Wales Ct. App., Dec. 20, 2018), the Court of Appeals of the Australian state of New South Wales held, in a 2-1 decision, that the rabbis and registrar of a Jewish religious court (Beth Din) were properly held in criminal contempt of a secular court for attempting to force adjudication of a commercial dispute in the Beth Din rather than in civil courts. The court however reduced the fines imposed for the contempt to a total of $25,000.  In the case, the Beth Din had informed the attorney representing the business being summoned to appear:

Unless by 5pm January 26 2017 the Beth Din hears from you on behalf of your client that he has recanted and that he acquiesces to the Beth Din process in accordance with Jewish Law, (which is indeed compatible with secular law), the following halachic sanctions will apply and the Synagogue/s where he prays will be informed accordingly.

1.   He will not be counted to a minyan.

2.   He will not be able to receive an aliyah to the Torah.

3.   He will not be offered any honour in the Synagogue.

J-Wire reports on the decision

9th Circuit Denies En Banc Review In School Board Prayer Case

Yesterday, the U.S. 9th Circuit Court of Appeals denied en banc review in Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, (9th Cir., Dec. 26, 2018). In the case, a 3-judge panel applied the Lemon test to strike down a California school board's prayer policy for board meetings. (See prior posting.)  Seven active judges plus one judge holding senior status who is technically unable to vote on the rehearing petition disagreed with the denial of en banc review.  An opinion by Senior Judge O'Scannlan argued that the case should be governed by the legislative prayer precedents rather than by the Lemon test. An opinion by Judge Nelson argued that even it the Lemon test applies, no Establishment Clause violation was present. The seven dissenting active judges joined all or part of both opinions. San Francisco Chronicle reports on the denial of review.

DC Circuit Denies En Banc Review In Bus Ad Case

Last Friday, the U.S. Court of Appeals for the D.C. Circuit, by a vote of 7-2, denied an en banc rehearing in Archdiocese of Washington v. Washington Metropolitan Transit Authority, (DC Cir., Dec. 21, 2018). In the case, a 3-judge panel rejected challenges to the WMATA's guidelines which preclude the sale of advertising space on public buses for issue-oriented advertising, including political, religious and advocacy ads. (See prior posting.) Judge Griffith, joined by Judge Kastas, filed an opinion dissenting from the denial of a rehearing, arguing in part"

WMATA allows entities like Walmart to speak on the subjects of the perfect Christmas gift (toys) and how to spend the Christmas season (buying gifts and visiting stores at specified hours). And WMATA permits the Salvation Army to run ads encouraging people to donate to certain charities. The Archdiocese would also like to express its views on the perfect Christmas gift (Christ), how to spend the holiday (caring for the needy and visiting churches for Mass at specified hours), and whether to contribute to charities (yes, and particularly to religious charities). By barring the Archdiocese from doing so, WMATA’s policy discriminates against religious viewpoints,,,,

[Thanks to James Phillips for the lead.] 

Top Ten 2018 Religious Liberty / Church-State Developments

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year-- including developments internationally in the mix.  My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention..  The selection obviously involves a good deal of subjective judgment, and I welcome e-mail comment from those who disagree with my choices.  So here are my Top Ten picks as another rather chaotic year comes to an end:

1. The U.S. Supreme Court issues a narrow decision in the Masterpiece Cakeshop case, failing to resolve the basic question of how to balance religious liberty and free speech rights against demands for equality.
2. Battles continue in the courts over whether existing protections against sex discrimination cover discrimination on the basis of sexual orientation or gender identity.
3. The third version of President Trump's "travel ban" is upheld by the U.S. Supreme Court.
4. Release of the Pennsylvania Grand Jury report on sexual abuse by Catholic priests in 6 dioceses refocuses attention on the clergy sex abuse scandal.
5. Mass shooting in Pittsburgh synagogue raises new fears of anti-Semitism in the United States.
6. U.S. Supreme Court protects the speech rights of pro-life pregnancy centers, finding California's FACT Act unconstitutional.
7. Canada and Ireland repeal blasphemy laws, while blasphemy cases elsewhere (Pakistan, Spain, Austria, India) continue to attract attention.
8. Federal district court holds federal Female Genital Mutilation statute unconstitutional.
9. Free speech challenges to state laws designed to combat individual participation in boycott of Israel meet success.
10. Congress takes action to fight genocide; passes Elie Wiesel Genocide and Atrocities Prevention Act and.  Iraq and Syria Genocide Relief and Accountability Act .

Don Byrd at Blog From the Capital has a different set of the Top Ten.

Christmas and the Trump White House

Today is Christmas. Vogue last week published an analysis of this year's White House Christmas Portrait. Meanwhile the White House website gives details on Christmas decorations at the White House, and this year's White House Christmas Card goes back to the traditional Merry Christmas greeting. Elite Daily discusses the issue.

Congress Passes Genocide and Atrocities Prevention Act

Last Friday, the House of Representatives gave final passage to S.1158, Elie Wiesel Genocide and Atrocities Prevention Act of 2018 (full text). Section 3 of the Act provides:

It shall be the policy of the United States to—

(1) regard the prevention of atrocities as in its national interest;

(2) work with partners and allies, including to build their capacity, and enhance the capacity of the United States, to identify, prevent, and respond to the causes of atrocities, including insecurity, mass displacement, violent conflict, and other conditions that may lead to such atrocities; and

(3) pursue a United States Government-wide strategy to identify, prevent, and respond to the risk of atrocities by—

(A) strengthening the diplomatic, risk analysis and monitoring, strategic planning, early warning, and response capacities of the Government;

(B) improving the use of foreign assistance to respond early, effectively, and urgently in order to address the causes of atrocities;

(C) strengthening diplomatic response and the effective use of foreign assistance to support appropriate transitional justice measures, including criminal accountability, for past atrocities;

(D) supporting and strengthening local civil society, including human rights defenders and others working to help prevent and respond to atrocities;

(E) promoting financial transparency and enhancing anti-corruption initiatives as part of addressing causes of conditions that may lead to atrocities; and

(F) employing a variety of unilateral, bilateral, and multilateral means to prevent and respond to atrocities by—

(i) placing a high priority on timely, preventive diplomatic efforts; and

(ii) exercising leadership in promoting international efforts to prevent atrocities.

The bill will now be forwarded to the President for his signature.

Ohio Governor Signs One Abortion Restriction, Vetoes Another

CNN Wire reports that Ohio Gov. John Kasich signed a bill into law last Friday that bans the commonly used  dilation and evacuation (D&E) procedure for abortions (Sub. S.B. 145). The new law labels such abortions "dismemberment abortions". Meanwhile, Kasich vetoed a bill that would have banned abortions where the fetus has a detectable heartbeat-- generally at 6 weeks of gestation. (Sub. H.B. 258). A press release from the Governor's office reports on the actions. [Thanks to Scott Mange for the lead.]

Recent Articles of Interest

From SSRN:

• Dwight G. Newman, Arguing Indigenous Rights Outside Section 35: Can Religious Freedom Ground Indigenous Land Rights, and What Else Lies Ahead?, (Tom Isaac, ed., Key Developments in Aboriginal Law (Toronto: ThomsonReuters Canada, 2018)),
• Teresa Stanton Collett, A Catholic Perspective on Law School Diversity Requirements, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 18-27 (2018).
• Chloë Kennedy, Defences: Justification, Excuse and Provocation. (in Norman Doe, Mark Hill & John Witte (eds), Christianity and Criminal Law: An Introduction (CUP, 2019)),
• Christof Bezemek, Stranger in a Strange Land: The Alien and the State, (In Julia Iliopoulos-Strangas, ed., Migration: Neue Herausforderungen für Europa, für die Staatssou-veränität und für den sozialen Rechtsstaat (2017)),
• Gary J. Simson, Permissible Accommodation or Impermissible Endorsement? A Proposed Approach to Religious Exemptions and the Establishment Clause, (106 Kentucky Law Journal 535 (2017-2018)).
• Barry McDonald & Erwin Chemerinsky, Eviscerating a Healthy Church-State Separation, (Washington University Law Review, Forthcoming).
• Bogdan David, Prevention and Fight Against Harvest and Revenge Motivated Crimes, (November 20, 2018).
• Christopher R. Green, Justice Gorsuch and Moral Reality, (Alabama Law Review, Forthcoming),
• Teresa Quintel  & Carsten Ullrich, Self-Regulation of Fundamental Rights? The EU Code of Conduct on Hate Speech, Related Initiatives and Beyond, (Bilyana Petkova & Tuomas Ojanen, eds., Fundamental Rights Protection Online: The Future Regulation Of Intermediaries, Edward Elgar Publishing, Summer/Autumn 2019).

From SSRN (Law of India):

• G. V. Mahesh Nath, Latest Trends in Succession among Hindus, (November 23, 2018).
• Deepa Das Acevedo, Pause for Thought: Supreme Court's Verdict on Sabarimala, (Economic & Political Weekly, Vol. LIII, No. 43, p. 12 (October 27, 2018)).
• Adeel Hussain, Muhammad Iqbal's Constitutionalism, (Indian Law Review, 2:2 (2018)),

From SSRN (Islamic Law):

• Ousmane Seck, Islamic Microfinance Experience in a Secular State: Case of Benin, (IRTI Policy Paper No. 2017-05 (2017),
• Mohammed Obaidullah, Managing Climate Change: The Role of Islamic Finance, (IRTI Policy Paper No. 2017-01 (2017).
• Mohammed Obaidullah, An Investigation into Goodness of Zakat Laws in Selected Countries, (IRTI Policy Paper No. 2017-04 (2017)),
• Khalifa MohamedæAli, Waqf Resource Mobilization for Poverty Alleviation Based on Maqasid Framework, (IRTI Policy Paper No. 2018-03 (2018)).
• Azam Ali, Tanveer Kishwar & Muhamed Zulkhibri, Islamic Financial Institutions and Participatory Finance Constraints: The Case of Pakistan, (IRTI Policy Paper No. 2018-02 (2018)).
• Jakub Vojtěch, The EU Framework for Islamic Securitisation and Sukuk in the Times of Brexit, (Charles University in Prague Faculty of Law Research Paper No. 2018/III/2 (2018)).

From elsewhere:

• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations (updated version, 2018).

Recent Prisoner Free Exercise Cases

In Amaker v. Bradt, (2d Cir., Dec. 19, 2018), the 2nd Circuit affirmed the dismissal for lack of exhaustion of administrative remedies of an inmate's claim regarding access to religious meals and retaliation.

In Vincent v. Stewart, (9th Cir., Dec. 21, 2018), the 9th Circuit reversed the district court's dismissal of free exercise and RLUIPA claims regarding a religious diet.

In Hancock v. Cirbo, 2018 U.S. Dist. LEXIS 212319 (D CO, Dec. 14, 2018), a Colorado federal magistrate judge recommended allowing a Jewish inmate to move ahead on his claim of denial of kosher meals, but recommended dismissing his complaint regarding the past requirement that he shave his beard.

In Brown v. Solomon, 2018 U.S. Dist. LEXIS 212824 (WD NC, Dec. 18, 2018, a North Carolina federal district court allowed an inmate to move ahead with claims that prison authorities should not classify Jehovah's Witness as a Christian- Protestant sect, and should provide separate group worship services for Jehovah's Witness inmates.

In Ables v. Hall, 2018 U.S. Dist. LEXIS 214749 (ND MS, Dec. 21, 2018), a Mississippi federal magistrate judge dismissed an inmate's claim of free exercise violations when he was required to withdraw from seminary school for excessive tardiness stemming from no regular schedule for administration of insulin shots.

In Pattison v. State Department of Corrections, 2018 Nev. App. Unpub. LEXIS 962 (NV App,, Dec. 17, 2018), a Nevada appellate court affirmed the trial court's award of only $1 in nominal damages for denial of kosher meals to an inmate. A concurring opinion disagreed with the majority on the need for physical injury to recover damages for a 1st Amendment violation.

Supreme Court Will Not Stay Injunction Against Asylum Rule

Today the U.S. Supreme Court issued an order (full text) in East Bay Sanctuary Covenant v. Trump (stay denied, Dec. 21, 2018), denying a stay of a preliminary injunction against implementation of a Presidential Proclamation and a rule that allow asylum to be granted only to refugees who cross the border at a designated port of entry. (See prior posting). Justices Thomas, Alito, Gorsuch and Kavanaugh dissented from the denial of the stay.

Suit Against Atlanta Archdiocese For Past Sex Abuse

A lawsuit was filed in a Georgia state trial court yesterday against the Atlanta Catholic Archdiocese by a man who was the victim of priest sexual abuse over 40 years ago when he was 12 to 15 years old.  According to AP, the suit alleges:

The Archdiocese and Archbishop of Atlanta owed a duty of reasonable care to protect minor parishioners who were altar boys at St. Joseph’s church.

It also contends that the Archdiocese's failure to report the alleged abuse constituted a public nuisance.

RLUIPA Suit By Chabad Challenges Demolition Order

The Baltimore Sun reports that a lawsuit was filed yesterday in a Maryland federal district court by the Chabad House serving Goucher College and Towson University alleging that authorities violated the Religious Land Use and Institutionalized Persons Act in requiring that a 2016 expansion of the Chabad House be razed because it violates a land covenant. State courts have given Chabad until mid-January to set aside funds to comply with the demolition order. According to the Sun:

In the lawsuit, Friends of Lubavitch alleges that Baltimore County officials required Chabad to take part in unnecessary hearings and issued citations that were without merit. The suit also says officials falsely claimed Chabad was operating as a “community center” instead of a residence because the Rivkins were hosting students for Shabbat dinners and Jewish instruction.

European Court:Says Greece Should Not Have Applied Sharia Law In Will Contest

In Molla Sali v. Greece, (ECHR, Dec. 19, 2018), the European Court of Human Rights in a Grand Chamber judgment held that Greece had violated Art. 14 of the European Convention on Human Rights which bans discrimination on the basis of religion when it insisted that Sharia law be applied to a wife's inheritance rights. As summarized in part by a press release issued by the Court:

On the death of her husband, Ms Molla Sali inherited her husband’s whole estate under a will drawn up by her husband before a notary. Subsequently, the deceased’s two sisters challenged the validity of the will, arguing that their brother had belonged to the Thrace Muslim community and that any question relating to inheritance in that community was subject to Islamic law and the jurisdiction of the “mufti” and not to the provisions of the Greek Civil Code. They relied, in particular, on the 1920 Treaty of Sèvres and the 1923 Treaty of Lausanne, which provided for the application of Muslim customs and Islamic religious law to Greek nationals of Muslim faith....

Owing to the application of Muslim inheritance law to her husband’s estate – which law in Greece applied specifically to Greeks of Muslim faith – Ms Molla Sali had been deprived of the benefit of the will drawn up in accordance with the Civil Code by her husband, and had therefore been deprived of three-quarters of the inheritance. The fact is that if her husband, the testator, had not been of Muslim faith, Ms Molla Sali would have inherited the whole estate. As the beneficiary of a will drawn up under the Civil Code by a testator of Muslim faith, Ms Molla Sali had therefore been in a situation comparable to that of a beneficiary of a will established under the Civil Code by a testator who was not of Muslim faith, but she had been treated differently on the grounds of the testator’s religion.

EEOC Moving Toward Insufficient Members For Quorum

National Law Journal yesterday reported that the Equal Employment Opportunity Commission is moving toward a scenario in which it will not have a quorum. Currently the 5-member Commission has two vacancies. Also Chair Chai Feldblum's current term is drawing to an end.  Feldblum's renomination and nominations for the two vacant positions have been pending in the Senate for months.  Utah Senator Mike Lee has blocked a vote on Feldblum's renomination because he opposes her advocacy of LGBTQ rights. Meanwhile, Daniel Gade, a nominee for one of the other vacancies says he has withdrawn and accepted another position, though his nomination is still listed on the Senate's executive calendar.

Court Orders Church To Allow Federal Surveyors On Its Property

A federal judge in the Southern District of Texas yesterday ordered attorneys for the Pharr Oratory of St. Philip Neri-- a congregation of priests that owns 26 acres near the U.S. Mexican border-- to allow government surveyors access to their land so surveys for a border wall could be conducted.  According to the Mission, Texas Progress Times, the Bishop of Brownsville had argued that using church property to build a border wall would limit the ability of the Church to carry out its mission. Federal Judge Randy Crane however rejected the Church's argument that allowing surveyors on the property would constitute a substantial burden of free exercise rights. The court ordered the parties to negotiate terms for reasonable access to the property.

Canada Repeals Blasphemous Libel Section of Criminal Code

On Dec. 13, Royal Assent was given to Bill C-51 which has been passed by Canada's Parliament.  Among other things, the new law repeals Sec. 296 of Canada's Criminal Code. Sec. 296 criminalized blasphemous libel, and subjected offenders to up to two years in prison.  In a press release, the Canadian Secular Alliance applauded the repeal.

Illinois AG Says Catholic Church Is Delinquent In Reporting On Offending Priests

A press release from Illinois Attorney General Lisa Madigan's office yesterday says that preliminary findings in an investigation begun in August show that the Catholic Church in Illinois has not fully disclosed information on priests accused of sexual abuse:

Attorney General Lisa Madigan today released preliminary findings of her ongoing investigation into the Catholic Church. While the six dioceses in Illinois have now publicly identified 185 clergy members as having been “credibly” accused of child sexual abuse, Madigan’s investigation has found that the dioceses have received allegations of sexual abuse of at least 500 additional priests and clergy members in Illinois....

The investigation has revealed that allegations frequently have not been adequately investigated by the dioceses or not investigated at all. In many cases, the Church failed to notify law enforcement authorities or Department of Children and Family Services (DCFS) of allegations of child sexual abuse. Among the common reasons the dioceses have provided for not investigating an allegation is that the priest or clergy member was deceased or had already resigned at the time the allegation of child sexual abuse was first reported to the diocese.

“By choosing not to thoroughly investigate allegations, the Catholic Church has failed in its moral obligation to provide survivors, parishioners and the public a complete and accurate accounting of all sexually inappropriate behavior involving priests in Illinois,” Madigan said. “The failure to investigate also means that the Catholic Church has never made an effort to determine whether the conduct of the accused priests was ignored or covered up by superiors.”

4th Circuit Says Student Has Standing To Challenge Bible In Schools Program

In Deal v. Mercer Coounty Board of Education, (4th Cir., Dec. 17, 2018), the U.S. 4th Circuit Court of Appeals reversed a West Virginia federal district court and held that a student who had withdrawn from the offending school system (and her parent) had standing to challenge the school system's Bible in the Schools program. It also held that the claim was ripe for adjudication. The Beckley (WV) Register Herald reports on the decision. [case title corrected from earlier post].

Texas BDS Law Challenged

A suit was filed in a Texas federal district court this week by an Arabic-speaking speech pathologist challenging the constitutionality of Texas' statute barring those who contract with the state from participating in any boycott of Israel.  The complaint (full text) in Amawi v. Pflugerville Independent School District, (WD TX, filed 12/16/2018), contends that the anti-BDS law violates the free expression rights of plaintiff who refused on moral grounds to sign an anti-BDS pledge as part of her contract with the school system. Common Dreams reports on the lawsuit.

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.