State Department Will Host Second Ministerial To Advance Religious Freedom

Last week in honor of Religious Freedom Day, the U.S. State Department announced that it will host its second Ministerial to Advance Religious Freedom on July 16-18, 2019, in Washington, D.C. The announcement said in part:

This Ministerial will again gather hundreds of government representatives, religious leaders, survivors of religious persecution, and members of civil society to build on the actions that began with the inaugural Ministerial last year.

Egyptian TV Host Sentenced For Program Featuring Gay Sex Worker

New York Post reported yesterday that an Egyptian trial court has sentenced a television host Mohammed el-Gheiti to one year in prison at hard labor followed by one year of surveillance, and a fine equivalent to $167 US for promoting debauchery and homosexuality.  Gheiti was also charged with contempt of religion.  The conviction stems from the appearance on his show of journalist Mustafa Mekki who posed as a gay man on the gay dating app Grindr in order to learn more about the Egyptian gay community. Also on the show was an anonymous sex worker who Mekki met on the app who said he wanted to warn other young men not to repeat his mistake.

Cert Petition Filed In RLUIPA Suit By Christian School

Last week, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Tree of Life Christian Schools v. City of Upper Arlington, Ohio. In the case, the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that a private Christian school had failed to establish a prima facie case that denial of zoning approval for its proposed new location violates the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act.  ADF issued a press release announcing the filing of the petition for review.

Sundance Features Documentary on Satanic Temple

The Sundance Film Festival begins this Thursday in three Utah locations.  The Daily Mail reviews one of the  documentary films featured at the Festival-- Hail Satan?  The Festival's website describes the film in part as follows:

Just a few years old, the Satanic Temple has risen from the depths to become one of the most controversial religious movements in American history. Hail Satan? bears witness as the temple evolves from a small-scale media stunt to an internationally recognized religion with hundreds of thousands of adherents. Naked bodies writhe with snakes on altars as protesters storm the gates of state capitols across the country. Through their dogged campaign to place a nine-foot, bronze Satanic monument smack dab next to the statue of the Ten Commandments on the Arkansas State Capitol lawn, the leaders of the temple force us to consider the true meaning of the separation of church and state.

Mobile Home Park Seeks To Require Resident To Remove Portrait of Virgin Mary

In Bradenton, Florida, a mobile home park, Bradenton Tropical Palms, has filed a demand for arbitration with the state's Division of Florida Condominiums, Timeshares and Mobile Homes in an attempt to require an 85-year old Catholic woman to remove a portrait of the Virgin Mary from the outside of her mobile home.  York Dispatch reports that the woman commissioned an artist to create the plywood painting which she installed to replace a window.  She contends that the park's enforcement attempt is anti-Catholic, and that she was targeted because of her religious beliefs. Management says she has failed to comply with park rules regarding her window replacement-- her filed paper work did not include a request for a change in appearance or design.

NY Court Orders Death Certificate Changed After Religious Objections To Brain Death Test

Hamodia reports that a New York state trial court judge has ordered Columbia-Presbyterian Hospital to change the date on the death certificate of an Orthodox Jewish patient in order to accommodate the family's religious objection to brain death as a definition of death. The patient, Yechezkel Nakar, was transferred to a nursing home after the declaration of brain death. He stopped breathing there some three weeks later.  Normally medical insurance will not cover treatment after a death certificate has been issued.

Recent Articles of Interest

From SSRN:

• Richard Rice, Can a Christian Be a Corporate Lawyer? Tracing Corporate Law's Religious Roots and Identifying How We Can Integrate Our Faith and Work, (January 1, 2019).
• Michael A. Helfand, Jews and the Culture Wars: Consensus and Dissensus in Jewish Religious Liberty Advocacy, (San Diego Law Review, Forthcoming).
• Jianlin Chen, Joyous Buddha, Holy Father, and Dragon God Desiring Sex: A Case Study of Rape by Religious Fraud in Taiwan, (13(2) National Taiwan University Law Review 183-237 (2018)).
• John Witte, The McDonald Distinguished Christian Scholars Conference: Is Religious Liberty Under Threat? Trans-Atlantic Perspectives, (Ecclesiastical Law Journal 20 (2018): 339-41).
• Cekli Setya Pratiwi, The Permissible Scope of Legal Limitation on Freedom of Religion or Belief (FoRB) and Freedom of Expression (FoE) under International Human Rights Law (IHRL): The Study of Blasphemy Cases in Indonesia,(January 9, 2019).
• Prakash Shah, Sacerdotal Violence and the Caste System: The Long Shadow of Christian-Orientalism, (Queen Mary School of Law Legal Studies Research Paper No. 302/2019).
• Brendan Williams, NIFLA v. Beccera: Abortion Speech Only as Free as the Supreme Court Wants It to Be, (13 Charleston Law Review 89 (2018)).
• W. Burlette Carter, Sexism in the 'Bathroom Debates': How Bathrooms Really Became Separated By Sex, (Yale Law & Policy Review, Vol. 37, No. 1, 2018).
• Zamir Iqbal & Friedemann Roy, Innovative Islamic Social Finance for Housing Microfinance, (Islamic Economic Studies, Vol. 26, No. 1, 2018).

From SmartCILP:

• Michael S. Talbot, The Challenge of Trokosi: Ritual Servitude and the Framework of International Human Rights Law, 31 Harvard Human Rights Journal 1-32 (2018).
• Nicholas J. Hunt, Let Us Pray: The Case for Legislator-Led Prayer. 54 Tulsa Law Review 49-79 (2018).

New York Legislature Passes Gender Expression Non-Discrimination Act

Last week, the New York legislature passed and sent to Gov. Andrew Cuomo for his signature A00747, the Gender Expression Non-Discrimination Act (full text).  As reported by the National Law Review, the bill amends New York's anti-discrimination laws to expressly ban discrimination on the basis of gender identity or expression, and adds to the list of offenses subject to treatment as hate crimes offenses regarding gender identity or expression. The Governor is expected to sign the bill.

Conversion Therapy Ban Challenged In Maryland, Enacted In New York

The Baltimore Sun reports that a lawsuit was filed in Maryland federal district court on Friday challenging Maryland's ban on conversion therapy for minors.  Plaintiff Christopher Doyle contends that the ban violates his free speech and free exercise rights, as well as his clients' right "to prioritize their religious and moral values above unwanted same-sex sexual attractions, behaviors, or identities."

Meanwhile, on Jan. 15, the New York state legislature gave final passage to A00576 (full text) which prohibits  mental health  professionals  from  engaging  in  sexual  orientation  change efforts with patients under the age of eighteen. NBC News says that Gov. Andrew Cuomo is expected to promptly sign the bill.

Recent Prisoner Free Exercise Cases

In Sterling v. Sellers, 2019 U.S. App. LEXIS 1522 (11th Cir., Jan. 16, 2019), the 11th Circuit refused to allow a previously litigious inmate to proceed without paying a filing fee under the imminent danger exception. The inmate alleged that prison officials use physical force against Muslims to stop their congregate prayers in dorms.

In Blankumsee v. Foxwell, 2019 U.S. Dist. LEXIS 4574 (D MD, Jan. 10, 2019), a Maryland federal district court dismissed for failure to exhaust administrative remedies a complaint by a Christian inmate that serving him turkey sausages made with pork stock violated his religious beliefs.

In Bell v. English, 2019 U.S. Dist. LEXIS 5425 (D KA, Jan. 11, 2019), a Kansas federal district court gave an inmate 3 weeks to show cause not to dismiss his complaint that he was without his Bible for 3 days after a search.

In Dayton v. Lisenbee, 2019 U.S. Dist. LEXIS 5435 (ED MO, Jan. 11, 2019), a Missouri federal district court held that there is no constitutional requirement that a jail create religious services for prisoners, at least in the absence of a demand for particular religious services or an allegation that group services are the only meaningful way for an inmate to practice his religion.

In Scales v. Walker, 2019 U.S. Dist. LEXIS 9055 (WD WI, Jan. 18, 2019), a Wisconsin federal district court dismissed an inmate's claim that his free exercise and other rights were infringed when a correctional officer attempted to serve him a waffle that had dropped on the floor and refused to replace his Kosher meal when plaintiff learned what had happened.

School Board Votes To End Appeals of Board Prayer Policy Decision

As previously reported, last month the U.S. 9th Circuit Court of Appeals, over a number of dissenting views, denied en banc review in Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education. In the case, a 3-judge panel applied the Lemon test to strike down a California school board's prayer policy for board meetings. Now, according to the Chino Champion, on Thursday with two new board members voting, the Board voted 3-2 to end all appeals of the decision. One of the new Board members voting with the majority works as a 1st Amendment lawyer.

Claim of Religious Targeting Against Child Welfare Worker Dismissed

In Glasser v. McCumbers, 2019 U.S. Dist. LEXIS 7541 (SD WV, Jan 15, 2019), a West Virginia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 219514, Nov. 30, 2018) and dismissed a suit against a Child Protective Services worker.  Plaintiff, whose child was removed from his custody, alleged that he was was subjected to an Abuse and Neglect charge in part because of the contempt for which the CPS worker Melissa McCumbers held his religious communal living conditions.  The court concluded that McCumbers failed to establish a substantial burden on the exercise of his religion.

Anti-Semitism Concerns Surround Tomorrows Third Women's March

Tomorrow the third annual Women's March is scheduled in a number of cities around the country.  But as reported by Vox, concerns about anti-Semitism surround some leaders of the movement and has led to the withdrawal of sponsorship by groups such as the Southern Poverty Law Center and, apparently, the Democratic National Committee:

[T]his year, the leaders of Women’s March Inc. — one of the organizations that grew out of the original march, and the most visible public face of the march today — are facing calls to step down. The reasons include criticisms of their association with Nation of Islam leader Louis Farrakhan and allegations that they made anti-Semitic remarks in planning meetings.

Women’s March Inc. is a national organization led by four activists from New York City — Tamika Mallory, Linda Sarsour, Carmen Perez, and Bob Bland — who helped organize the first march in Washington, DC, in 2017. The group also has local chapters that are planning marches in cities around the country this year, though other local marches are not affiliated with Women’s March Inc.

Fired Employee Loses Suit Over Religious Content of His E-Mail Signature Block

In Sioux City, Iowa on Wednesday, a federal trial court jury rejected a claim by plaintiff who had been hired as a psychiatric security specialist that his firing during his probationary period violated his free speech and free exercise rights.  As reported by the Sioux City Journal, plaintiff Michael Mial pointed to the request by his supervisors at a state sex-offender civil commitment unit that he stop using "In Christ" in his personalized signature block on internal e-mails sent to other employees.

Senate Resolution Says "No Religious Test" Clause Bars Disqualification For K of C Membership

On Wednesday, the U.S. Senate passed Senate Resolution 19 by unanimous consent.  The Resolution was introduced by Nebraska Sen. Ben Sasse in response to questions raised in connection with last month's Judiciary Committee hearing on the nomination of Brian C. Buescher for a seat on the United States District Court for the District of Nebraska. At that hearing, Senators Mazie Hirono (D-HI) and Kamala Harris (D-CA) questioned whether Buescher's membership in the Knights of Columbus would bias his consideration on issues such as abortion rights and same-sex marriage. (Background). Resolution 19 after a lengthy Preamble, provides:

That it is the sense of the Senate that disqualifying a nominee to Federal office on the basis of membership in the Knights of Columbus violates clause 3 of article VI of the Constitution of the United States, which establishes that Senators ‘‘shall be bound by Oath or Affirmation, to support th[e] Constitution’’ and ‘‘no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States’’.

National Catholic Register reports on the Resolution.

Court Says Fair Housing Act Does Not Bar Sexual Orientation Discrimination

In Walsh v. Friendship Village of South County, (ED MO, Jan. 16. 2019), a Missouri federal district court, relying on a 1989 decision by the 8th Circuit under Title VII, held that sexual orientation discrimination is not covered by the federal Fair Housing Act. At issue was the refusal, on religious grounds, of a senior living community to rent an apartment to a married lesbian couple. Courthouse News Service reports on the decision.

Challenge To NY Favoritism of Yeshivas Dismissed For Lack of Standing.

In Young Advocates for Fair Education v. Cuomo, (ED NY, Jan. 16, 2019), New York federal district court dismissed for lack of standing and ripeness a challenge to the constitutionality of the "Felder Amendment" which plaintiff claims was designed to reduce the level of secular education that needs to be offered by Hasidic Jewish schools in New York. Plaintiffs alleged that the Felder Amendment creates an unconstitutional preference for Hasidic Jewish schools. While not reaching the merits, the court suggested that state regulations may have made standards for religious schools more rigid. Yeshiva World reports on the decision.

Florida Jury Gives Large Award To Worker Fired For Refusing To Work on Sunday

Law 360 reports [subscription required] that a Florida federal court jury on Monday awarded $36,000 for lost wages, $500,000 for emotional pain and $21 million in punitive damages to a Hilton Hotel dishwasher who was fired for swapping shifts with co-workers to allow her to have Sundays off for religious reasons.  Plaintiff was a member of the Catholic missionary group, Soldiers of Christ Church.  Florida has a statutory cap on damages which will lead to the court's reducing punitive damages. [Thanks to Douglas Laycock via Religionlaw for the lead.]

Jan. 16 Is Religious Freedom Day

Today (Jan. 16) is Religious Freedom Day-- the 233rd anniversary of the enactment of the Virginia Statute for Religious Freedom. On Tuesday, President Trump issued a Presidential Proclamation calling on Americans "to commemorate this day with events and activities that remind us of our shared heritage of religious liberty and that teach us how to secure this blessing both at home and around the world."  The Proclamation says in part:

Unfortunately, the fundamental human right to religious freedom is under attack.  Efforts to circumscribe religious freedom — or to separate it from adjoining civil liberties, like property rights or free speech — are on the rise.  Over time, legislative and political attacks on religious freedom have given way to actual violence.  Last October, we witnessed a horrific attack on the Tree of Life Synagogue in Pittsburgh, Pennsylvania — the deadliest attack on the Jewish community in our Nation’s history.  Tragically, attacks on people of faith and their houses of worship have increased in frequency in recent years.

European Court Upholds Removal of Children From Home Schooling

In Wunderlich v. Germany, (ECHR, Jan. 10, 2019), the European Court of Human Rights in a Chamber Judgment upheld Germany's three-week removal of four children from their parents' home after the parents insisted on home schooling them and refused to send them to state schools.  The court held that there was no violation of Art. 8 of the European Convention on Human Rights (Right to Respect for Private and Family Life). the Court said in part:

The Court finds that the enforcement of compulsory school attendance, to prevent social isolation of the applicants’ children and ensure their integration into society, was a relevant reason for justifying the partial withdrawal of parental authority. It further finds that the domestic authorities reasonably assumed – based on the information available to them – that children were endangered by the applicants by not sending them to school and keeping them in a “symbiotic” family system.

ADF issued a press release announcing the decision.

Popularity of Kosher Food Requests In Prisons

Tablet Magazine yesterday reports on the surprising popularity of kosher food requests in prisons, saying in part:

According to the 2013 numbers, Jews are seven percent of the state prison population of New York; the fourth largest religious denomination after Protestant, Catholic and Muslim (in that order). If the numbers were accurate it would mean that nearly twice as many Jews were locked up that year as members of the Nation of Islam. But the truth is that many inmates lie and claim to be Jewish once they enter the prison system. And why do they do it? Not as a hedge against the impending arrival of the Moshiach. They do it for the kosher food.

Court Enjoins Broadened Contraceptive Mandate Exemptions

Yesterday in Commonwealth of Pennsylvania v. Trump, (ED PA, Jan 14, 2019), a Pennsylvania federal district court issued a nationwide preliminary injunction preventing enforcement of the Trump Administration's expanded exemptions for those asserting religious or moral objections to the Affordable Care Act's contraceptive coverage mandate.  In addition to finding procedural problems in the way the rules were adopted, the court concluded:

The Final Rules—just as the IFRs before them—exceed the scope of the Agencies’ authority under the ACA, and, further, cannot be justified under RFRA.

A California court issued a similar, but more limited injunction on Sunday. (See prior posting.) Washington Examiner reports on the decision.

Ohio Governor Signs Broad State Employment Non-Discrimination Executive Order

Yesterday, Ohio Governor Mike DeWine signed Executive Order 2019-05D prohibiting discrimination by any state agency, board or commission.  The Order prohibits discrimination on the basis of race, color, religion, gender, gender identity or expression, national origin (ancestry), military status (past, present or future), disability, age (40 years or older), status as a parent during pregnancy and immediately after the birth of a child, status as a parent of a young child, status as a foster parent, genetic information, or sexual orientation. Washington Blade reports on the governor's action, saying in part:

DeWine’s action stands in contrast to the executive order signed by Florida Gov. Ron DeSantis, who excluded LGBT people in a non-discrimination that included other categories, including race, religion and sex....

The Ohio Republican’s action may come as a surprise to observers who know his history as a President Trump-supported candidate and an Ohio state attorney general who defended the state’s marriage ban in court.

Expanded Religious and Moral Exemptions From Contraceptive Mandate Enjoined In Part of the Country

In State of California v. Health and Human Services, (ND CA, Jan. 13, 2019), a California federal district court granted a preliminary injunction against enforcement of the the Trump Administration's broadened religious and moral exemptions from the ACA's contraceptive coverage mandate. The court enjoined enforcement of the Final Rules that were scheduled to take effect today, but only in  the 13 states and the District of Columbia that are plaintiffs in the case.  The court concluded that the plaintiffs are likely to succeed on their claim that the exemptions are inconsistent with the Women's Health Amendment, and that the religious exemption is likely not required by the Religious Freedom Restoration Act. The court agreed with decisions in nine Courts of Appeal that the Obama Administration accommodation for religious objectors does not impose a substantial burden on the free exercise of religion. Politico reports on the decision.

Recent Articles of Interest

From SSRN:

• Ahmed E. Taha &Sohaib Khan, Charity Disparity: The Challenge of Applying Religious Law on Zakat in the United States, (Northwestern Journal of Law and Social Policy, Vol. 14, No. 1, 2018).
• Michael A. Helfand, From Doctrine to Devotion: The Jewish Comparative Law Project, (American Journal of Comparative Law, Vol. 67, 2019 Forthcoming).
• Fajiri Muhammadin & Thara Wahab, Fiqh al-Jihād in Modern Warfare: Analyzing Prospects and Challenges with Reference to International Humanitarian Law, (IIUM Law Journal, Vol. 26, No. 2 (2018)).
• Wayne Barnes, Reconsidering Christianity as a Support for Secular Law: A Final Reply to Professor Calhoun, (Texas A&M University School of Law Legal Studies Research Paper (2019)).
• David L. Sloss & Wayne Sandholtz, Universal Human Rights and Constitutional Change, (William & Mary Bill of Rights Journal, Forthcoming).
• Daniel Bewel, The Murder of My Unborn Siblings: A Breach of the Constitutional Right to Life of the Unborn, (August 15, 2018).
• Catherine Martin Christopher, Nevertheless She Persisted: Comparing Roe v. Wade's Two Oral Arguments, (49 Seton Hall L. Rev. 307 (2018)).
• Md.Salman Sohel, The Rohingya Crisis in Myanmar: Origin and Emergence, (Saudi J. Humanities Soc. Sci.; Vol-2, Iss-11A (Nov, 2017)).
• Zubair Abbasi, From Faskh to Khula: Transformation of Muslim Women’s Right to Divorce in Pakistan (1947-2017), (December 29, 2018).

From SmartCILP:

• Omri Ben-Zvi, The Unavailability of Religious Arguments, 54 Idaho Law Review 703-728 (2018).
• Frederick B. Jonassen, The "Ave Maria" Effect, 54 Idaho Law Review 729-811 (2018).
• Islamic Law, Society, and the State. Introduction by Tamir Moustafa, Jeffrey Adam Sachs; articles by Mona Oraby, Katherine Lemons, Jeffrey Adam Sachs, Michael G. Peletz, Tamir Moustafa. 52 Law & Society Review 560-708 (2018).
• Cesar Arjona & Greg Jehle, Islamic Law and the Limits of Amorality: Reconceptualizing the Legal Ethics of Transnational Islamic Finance, [Abstract], 27 Transnational Law Contemporary Problems 249-275 (2018).
• Religious Freedom. Articles by Robin Fretwell Wilson, David Orentlicher, Shaakirrah R. Sanders, David M. Smolin, Allison M. Whelan. 8 UC Irvine Law Review 583-759 (2018).

Recent Prisoner Free Exercise Cases

In Carr v. Zwally, (10th Cir., Jan. 8, 2019), the 10th Circuit affirmed the dismissal of an inmate's complaint that a sheriff's deputy removed religious material, including two Bibles, from his cell.

In Anderson v. Dzurenda, 2019 U.S. Dist. LEXIS 784 (D NV, Jan. 3, 2019), a Nevada federal district court allowed a Wiccan inmate to move ahead with his complaint that he was denied religious items, religious oils and religious teas.

In Williams v. Kobayashi, 2019 U.S. Dist. LEXIS 1015 (D HI, Jan. 3, 2019), an Hawaii federal district court dismissed with leave to amend an inmate's complaint that his personal minister's application for special visitor status was denied.

In Lopez v. Semple, 2019 U.S. Dist. LEXIS 1361 (D CT, Jan. 4, 2019), a Connecticut federal district court dismissed an inmate's claim that he was deprived of religious services while in segregation.

In Wilson v. Arizona, 2019 U.S. Dist. LEXIS 1744 (D AZ, Jan. 3, 2019), an Arizona federal district court dismissed an inmate's complaint that he was denied religious meals and that his food was tampered with because of his religion.

In Canada v. Stirling, 2019 U.S. Dist. LEXIS 3004 (D SC, Jan. 8, 2019), a South Carolina federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 218699, Dec. 17, 2018) and dismissed an inmate's claim that playing the Pledge of Allegiance over the prison loudspeaker two to three times per day violated the Establishment Clause.

In Wilcox v. Brown, 2019 U.S. Dist. LEXIS 3684 (WD NC, Jan. 9, 2019),a North Carolina federal district court allowed an inmate to move ahead with his damage claim for the temporary cancellation of Rastafarian religious services.

10th Circuit: Church of the Creator Does Not Qualify As A "Religion"

In Hale v. Federal Bureau of Prisons, (10th Cir., Jan. 7, 2019), the U.S. 10th Circuit Court of Appeals, in a prisoner free exercise case, held that the white supremacist Church of the Creator does not qualify as a "religion".  Thus the protections of the Religious Freedom Restoration Act do not apply to claims of an inmate whose participation in Creativity was limited because of its designation as a security threat group. The court applied a 5-factor test set out in earlier cases to determine whether Creativity was a religious belief system.  The court said in part:

Instead of addressing existential, teleological, or cosmological matters, Creativity presents only a singular concern of racial dominance, framed in terms of social, political, and ideological struggles. Thus, Creativity does not address ultimate ideas.

Pakistan's Supreme Court Orders Government Compensation To Victims of Protesters

As previously reported, after Pakistan's Supreme Court last October reversed the blasphemy conviction of a Christian woman, Asia Bibi, protests and demonstrations broke out in several Pakistani cities.  Now, according to Geo News, Pakistan's Supreme Court today ordered federal and provincial governments to pay compensation to those who suffered losses and property damage during the three day countrywide protest that followed the October decision.

Texas County Republicans Keep Muslim Doctor As Vice Chairman

Texas Tribune reports that the precinct chairs of the Tarrant County, Texas Republican Party last night rejected by a vote of 139-49 an attempt to remove trauma surgeon Shahid Shafi as vice-chairman of the county Republican Party. A small faction had attempted to remove Shafi because he is a Muslim.  They argued that he did not represent all Tarrant County Republicans because he is a Muslim, and that Islamic ideologies are opposed to the U.S. Constitution.  A former county precinct chair had sat outside the meeting wearing a burqa which, she said, represented "the Islamization of our county, our state and our country."  Shafi's defenders say the vote for religious liberty.

Supreme Court Grants Cert. In Title VII Religious Discrimination Jurisdictional Case

The U.S. Supreme Court today granted review on a procedural issue in a Title VII religious discrimination case--  Fort Bend County, Texas v. Davis, (Docket No. 18-525, certiorari granted, 1/11/2019). (Order List). In the case, the U.S. 5th Circuit Court of Appeals held that the the requirement that a person exhaust administrative remedies before bringing a Title VII action is not jurisdictional.  This meant that the county's delay in raising the defense of exhaustion could result in its forfeiting its right to raise the defense. (See prior posting.) Here is SCOTUSblog's case page giving links to the filings with the Supreme Court in the case.

Synagogue Wins $2.5M Settlement For RLUIPA Violations

JNS reported this week that a New Jersey synagogue has won a $2.5 million settlement in a mediation proceeding against the town of Clifton, New Jersey. The synagogue claims that Clifton violated the Religious Land Use and Institutionalized Persons Act by creating over ten years of delays in approving construction of a building for Shomrei Torah congregation.  According to one of the synagogue's attorneys:

Shomrei Torah had been commanded to appear before the Planning Board 25 times between March 2013 and October 2015, and before the zoning board seven times between November 2008 and January 2013. They had to appear in state court four times.

The settlement terms, reached in December, were made public on Jan. 3. [Thanks to Steven H. Sholk for the lead.]

Mormon Church Sued In Tribal Court Over Abuse of Student

AP reports on a lawsuit filed Tuesday against the Mormon Church in a Navajo Tribal Court. Plaintiff, identified only as LB, was part of the Mormon Church's Indian Student Placement Program which began in the 1940's and was designed to give educational opportunities to Native American children.  LB alleges that he was sexually molested three times in the 1980's by a Church bishop who lived across the street from the foster family with whom LB had been placed.  The suit seeks damages for failure to supervise participants in the program and for failing to report the abuse to authorities or to the victim's family.  The Church has contended that Tribal Courts lack jurisdiction over the lawsuit.

NYT Explores Implications of Fetal Personhood

The New York Times has posted an 8-part series on the legal and societal implications of fetal personhood. In an introduction to the series, Times editors write in part:

The creation of the legal scaffolding for the idea that the fetus is a person has been the steady work of the anti-abortion movement, at the national level and in every state. Today, at least 38 states and the federal government have so-called fetal homicide laws, which treat the fetus as a potential crime victim separate and apart from the woman who carries it.

The movement has pressed for dozens of other measures to at least implicitly affirm the idea that a fetus is a person, such as laws to issue birth certificates for stillborn fetuses or deny pregnant women the freedom to make end-of-life decisions for themselves. Some of these laws are also intended to create a basis for challenging and eventually overturning Roe.

In the hands of zealous prosecutors, cautious doctors and litigious attorneys, these laws are creating a system of social control that polices pregnancy, as the editorials in this series show. Because of the newly fortified conservative majority on the Supreme Court, such laws are likely to multiply — and the control to become more pervasive — whether or not Roe is overturned.

In the concluding part of the series, Times editors opine:

A society that embraces a legal concept of fetal personhood would necessarily compromise existing ideals of individual freedom. Americans — even many who oppose abortion — have not considered the startling implications of this idea, even as it has steadily gained strength in the law and in social norms. If a fetus is granted equal rights, women who become pregnant may find their most personal decisions coming under state control.

Suit Challenges School Limits on Flyer Distribution For Bible Event

A suit was filed this week in a California federal district court against the Huntington Beach School District for barring a 2nd and a 5th-grade student from handing out flyers promoting Focus on the Family's "Bring Your Bible to School Day."  The complaint (full text) in M.B. v. Huntington Beach City School District, (CD CA, filed 1/7/2019),  contends that plaintiffs' free speech, free exercise, equal protection and due process rights were infringed by not allowing them to distribute the flyers at lunch, recess and other non-instructional times during the school day. School officials limited the distribution to before- and after-school hours. OC Weekly reports on the lawsuit.

NY Quaker Marriage Provision Cannot Be Limited To Quakers

In N.B. v. F.W., (NY County Sup Ct, Jan. 4, 2019), a New York state trial court rejected a husband's argument in a divorce proceeding that no valid marriage existed between the parties. The couple, who lived in New York throughout their 13-year purported marriage, had obtained a "self-uniting" marriage license from Pennsylvania and had a wedding ceremony in France at which the couple solemnized their own marriage in the presence of two witnesses and guests. The wife argued, among other things, that the marriage was valid under New York Domestic Relations Law Sec. 12 which recognizes self-uniting ceremonies among Friends or Quakers if solemnized in the manner practiced by their societies. In response, the husband argued that neither party to the marriage was a member of the Friends or Quakers.  The court responded:

The court's ability to hold the marriage as valid or invalid may not, however, depend on the parties' religious affiliation to members of the Friends or Quakers, or on the parties' level of religious observance. To hold otherwise would violate the First Amendment....

The court cannot deny a benefit or right to a person for not following any particular religious practice. To do so would violate the Establishment Clause. Lee v. Weisman, 505 U.S. 577, 596 (1992). Husband's argument would prefer religiously observant Quakers over individuals such as the parties here (or vice-versa, since Husband is seeking to "free" himself from a finding of a valid marriage that would have attached to him if he were religiously observant, under his argument).

NYT Editorializes On Ritual Slaughter Restrictions

The New York Times editorial board today stepped into the debate in some European countries over kosher and halal slaughter, as a law in the Flemish Region of Belgium banning slaughter without first stunning of animals takes effect. (See prior posting.)  The Times says in part:

Right-wing politicians in several countries have used controls on such religious practices to press bigoted agendas under the cloak of battling for civil or animal rights....

The pretexts of some politicians does not mean all those who insist on stunning have dubious motives. Animal-rights activists have long campaigned, justifiably and successfully, for the humane treatment of animals destined for the table. Many earnestly believe that slashing the neck of a conscious animal causes more suffering than stunning the animal first....

But those who really care about the welfare of animals should be wary of making common cause with right-wing nationalists whose hostile intent is to make life more difficult for religious minorities. A real conversation on balancing animal rights and religious freedoms can take place only if it is free of hidden bigotry.

Suit Challenges Restrictions On Sharing Food With the Hungry

A suit was filed yesterday in a Missouri federal district court claiming that St. Louis' Temporary Food Service Ordinance is unconstitutional as applied to restrict the non-commercial sharing of food with the hungry.  The complaint (full text) in Redlich v. City of  St. Louis, (ED MO, filed 1/8/2019) pits a pastor and another Christian man who believe they have a religious obligation to feed the hungry against city enforcement officials.  It alleges in part:

Plaintiffs contend that as applied to them and to others similarly situated the Temporary Food Service Ordinance unconstitutionally and unlawfully restricts their free exercise of religion, their freedom of expression, their freedom of association, their rights of conscience, and denies them equal protection of the laws.

St. Louis Public Radio reports on the lawsuit.

Chicago Church Drops Defamation Suit

RNS reports that the Chicago-area megachurch Harvest Bible Chapel will drop a defamation lawsuit it had filed against a former teacher at the church's school and a former church member who have posted criticism of the church's founding pastor on their blog.  The move comes after a Cook County trial court refused to enjoin the online publicizing of documents that would be produced during discovery in the case.  In a statement posted on its website, the church said in part:

... [T]he court appears unwilling to protect our many friends, including those with whom we seek to reconcile. In good conscience we cannot knowingly subject innocent people, in many instances against their will, to a full subpoena process.

Surely the Lord could have caused the court to rule in our favor.... We receive these outcomes as God’s direction and have instructed our legal counsel to drop the suit entirely. With this decision, we can again focus our energies on continued growth in personal and organizational faults we have owned, enduring what is false, and striving to mitigate the damage such attacks bring to our church family and friends.

USCIRF Suggests Standards For Registration of Religious Groups

The U.S. Commission on International Religious Freedom this week issued a Legislative Factsheet on Registration Laws for religious groups.  It sets out seven standards necessary for registration laws to protect religious freedom:

• Registration of religious groups cannot be mandatory: Registration can only be required to confer legal personality and must not be compulsory in order to practice religion....
• Legislation cannot contain undue restrictions or other bureaucratic burdens that hinder access to legal personality....
• Requirements for registration must be precise and defined....
• Registration laws must be non-discriminatory....
• Religious organizations must be carefully defined....  religion and belief must be construed broadly and include both traditional and non-traditional religions and beliefs, including both theistic and non-theistic beliefs....
• Registration requirements cannot be onerous or invasive....
• There must be avenues for appealing denials...

Colorado Bakery Can Move Ahead With Suit Over Non-Discrimination Laws

In Masterpiece Cakeshop Inc. v. Elenis, (D CO, Jan. 4, 2018), a Colorado federal district court held that the owner of a Colorado bakery may move ahead with his suit seeking injunctive relief against enforcement of the state's anti-discrimination laws. However the court dismissed plaintiffs' damage claims on immunity grounds.  Plaintiff Jack Phillips won a U.S. Supreme Court victory last year when the Supreme Court held that the Colorado Civil Rights Commission showed impermissible hostility toward his religious objections to designing a cake for a same-sex wedding ceremony.  While that case was pending, a different customer sought a cake to celebrate her gender transition. Phillips refused to make the cake that conveyed a message in conflict with his religious belief that gender is immutable. The Commission again issued a probable cause determination and the state filed a formal complaint against Phillips. In response Phillips filed this suit claiming that the Division's bullying of him violates his free exercise, free speech, due process and equal protection rights. Catholic News Agency reports on the decision.

Recent Articles of Interest

From SSRN:

• Mary Case, Trans Formations in the Vatican's War on 'Gender Ideology', (44 Signs: Journal of Women in Culture and Society __ (2019, Forthcoming)).
• Sam Bookman, Book Review: Freedom of Religious Organizations by Jane Calderwood Norton,  ((2017) 23 Auckland U L Rev.).
• Perry Dane, Robert Cover and Legal Pluralism, (December 18, 2018).
• Suman Acharya, Jurisprudence of Law and State; An Experience of Nepal ,(December 12, 2018).
• James Loeffler, 'A Certain Kind of Liberalism': Jewish Minority Rights in Eastern Europe and Beyond, 1848-1948, (Jews, Liberalism, Antisemitism: A New History, eds. Abigail Green and Simon Levis Sullam (Indiana University Press, Forthcoming)).
• Is Secularism a Non-Negotiable Aspect of Liberal Constitutionalism?, Articles by Frank S. Ravitch, Alan Brownstein, Gabor Halmai, Bruce Ledewitz, Yaniv Roznai, Jaclyn L. Neo. 2017 Michigan State Law Review 149-370.
• Giancarlo Anello, Europe and the Ummah: A Legal Inquiry on the Condition of the Muslim Community in a Transforming Continent, (November 16, 2018).
• Kyriaki Topidi, The Culturalization of Religion and the Pursuit of Diversity: Co-Existence within Difference in South Africa, (Christa Rautenbach (ed.), In the Shade of an African Baobab: Tom Bennett’s Legacy, Juta Publishers, pp. 106- 122, 2018).
• Shivaraj Huchhanavar, Introduction to Natural Justice, (September 8, 2018).
• Islam Abdel Magid, Gender Equality: Islamic Law and Legal Validity, (Magalãt Al-Dȋmouqraţyah, 2018).
• Wiliam Echikson & Olivia Knodt, Germany’s NetzDG: A Key Test for Combatting Online Hate, (CEPS Policy Insight, 2018).
• John Picton, Donor Intention and Dialectic Legal Policy Frames, (Research Handbook on Not-for Profit Law, Edward Elgar, 2018).

Religious Makeup of New 116th Congress

Pew Forum reports on the religious make up of the new 116th Congress, saying:

There has been a 3-percentage-point decline in the share of members of Congress who identify as Christian – in the 115th Congress, 91% of members were Christian, while in the 116th, 88% are Christian. There are also four more Jewish members, one additional Muslim and one more Unitarian Universalist in the new Congress – as well as eight more members who decline to state their religious affiliation (or lack thereof).

While the number of self-identified Christians in Congress has ticked down, Christians as a whole – and especially Protestants and Catholics – are still overrepresented in proportion to their share in the general public. Indeed, the religious makeup of the new, 116th Congress is very different from that of the United States population.

The full report gives numbers and percentages for the various faith groups, including various Protestant denominations. [Thanks to Scott Mange for the lead.]

Establishment Clause Challenge To Drag Queen Storytime Dismissed

In Christopher v. Lawson, (SD TX, Jan. 3, 2018), a Texas federal district court dismissed a lawsuit that claimed the Houston Public Library's "Drag Queen Storytime" violates the Establishment Clause. Plaintiffs claimed that the program promotes secular humanism over other religions, including Christianity,  The court first held that plaintiffs lack standing. Because they avoided the event to protect their children, they suffered no harm.  The court held that they also lack taxpayer standing.  The court went on to find that even if plaintiffs had standing, they failed to show an Establishment Clause violation, saying in part:

Here, the plaintiffs argue that “Drag Queen Storytime” is a religious event because of an alleged connection between “Drag Queen Storytime,” the LGBTQ community, and secular humanism.... [E]ven accepting that secular humanism could be a religion for Establishment Clause purposes, the plaintiffs fail to allege any facts or basis showing that “Drag Queen Storytime” is a religious activity. There is no allegation that a reader discussed secular humanism at the event, or that any story the Library selected invoked secular humanism or any religion at all. The plaintiffs instead make only conclusory statements associating secular humanism with the event.

Houston Chronicle reports on the decision,

Two Muslim Women To Be Sworn In As Members of Congress Today

As the Democrats take control of the House of Representatives today, they will pass a new rules package that includes a provision allowing religious headgear to be worn on the floor of the House.  As reported by ABC radio, this will overturn a nearly 200-year old ban on wearing hats on the House floor. The rule change will allow newly-elected Rep. Ilhan Omar from Minnesota, a Muslim woman, to wear her hijab. Meanwhile, CNN reports more broadly in a piece by Rafia Zakaria:

On January 3, 2019, not one but two Muslim American women will be sworn into Congress. Taking the oath on a Quran that belonged to Thomas Jefferson, Ilhan Omar and Rashida Tlaib will become the first Muslim-American women to serve in the House of Representatives.

Their swearing in will be a historic milestone for the country, but it will be so much more than that for me. A black Somali-American woman who wears a headscarf and pokes fun at Islamophobes on Twitter, Omar crushes stereotypes of what a Muslim woman in a headscarf represents. As an unveiled Muslim American woman, Rashida Tlaib -- who will wear a Palestinian gown to her swearing in -- also dismantles the myth that all "real" Muslim women wear the headscarf.

7th Circuit Remands Prisoner's Attempt To Join Moorish Science Worship

In Neely-Bey v. Conley, (7th Cir., Jan. 2, 2019), the U.S. 7th Circuit Court of Appeals, in a 38-page opinion, remanded to an Indiana federal district court a suit by an inmate who claimed that his free exercise rights were infringed when prison authorities at Correctional Industrial Facility did not permit him to participate fully in worship services of the Moorish Science Temple of America. The court said in part:

Mr. Neely-Bey ... does not ask the CIF to accommodate a personal belief not required of MSTA adherents. Rather, he asks that the CIF require the MSTA to accept him as a full member even though his belief system as a declared sovereign citizen differs substantially from that of the MSTA and MSTA liturgical practices require that its adherents share their religious beliefs in the course of their worship services. The MSTA consequently believes that admitting Mr. Neely-Bey as a member would challenge its teachings and, possibly, jeopardize its status....

We therefore have no doubt that the prison officials are on solid ground in maintaining that they have a right, and indeed an obligation, to protect the right of other prisoners who adhere to the MSTA faith to worship in a congregational manner to the extent that such a practice is consistent with other penal objectives.

Of course, in asserting such an objective and in choosing a means to achieve such an objective, Turner v. Safley ...teaches that prison officials cannot rely on the mere incantation of a penal interest but must come forward with record evidence that substantiates that the interest is truly at risk and that prison officials have chosen an appropriate manner to assert that interest. Before us, the defendants justify their actions only in terms of the MSTA’s rights without any reference to the possible impact on the security, operations, or finances of the CIF. Under such circumstances, we cannot conclude that the defendants have articulated a legitimate “penological” reason for denying Mr. Neely-Bey full participation in MSTA’s Friday services.

The merits of Mr. Neely-Bey’s claim for injunctive relief therefore remain an open question. In considering this question, the district court should not only determine the propriety of injunctive relief under the Free Exercise Clause, but possible relief under RLUIPA.

Indiana Lawyer reports on the decision.

2018 Law and Religion Bibliography Now Available

The Association of American Law Schools Section on Law and Religion has published its Annual Bibliography.  The 21-page bibliography lists journal articles, special journal issues, monographs and edited volumes published in 2018 on law and religion topics.

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.