Religion Clause

Wednesday, February 06, 2019

Excerpts of Interest From President Trump's State of the Union Address

President Trump delivered his State of the Union address to Congress last night. (Full text). Here are some excerpts that are of interest to those concerned with religious liberty and church-state issues:

We can make our communities safer, our families stronger, our culture richer, our faith deeper, and our middle class and more prosperous than ever before...

To help support working parents, the time has come to pass school choice for America’s children....

There could be no greater contrast to the beautiful image of a mother holding her infant child than the chilling displays our nation saw in recent days. Lawmakers in New York cheered with delight upon the passage of legislation that would allow a baby to be ripped from the mother’s womb moments before birth. These are living, feeling, beautiful babies who will never get the chance to share their love and dreams with the world. And then, we had the case of the governor of Virginia where he stated he would execute a baby after birth. To defend the dignity of every person, I am asking the Congress to pass legislation to prohibit the late-term abortion of children who can feel pain in the mother’s womb. Let us work together to build a culture that cherishes innocent life.

And let us reaffirm a fundamental truth — all children — born and unborn — are made in the holy image of God....

And last fall, we put in place the toughest sanctions ever imposed on a country. We will not avert our eyes from a regime that chants death to America and threatens genocide against the Jewish people. We must never ignore the vile poison of anti-semitism, or those who spread its venomous creed. With one voice, we must confront this hatred anywhere and everywhere it occurs.

Just months ago, 11 Jewish-Americans were viciously murdered in an anti-semitic attack on the tree of life synagogue in Pittsburgh. Swat officer timothy Matson raced into the gunfire and was shot seven times chasing down the killer. And he was very successful. Timothy has just had his 12th surgery and he is going in for many more, but he made the trip to be here with us tonight. Officer Matson, please.

Thank you. We are forever grateful. Thank you very much. Tonight, we are also joined by Pittsburgh survivor Judah Samet. He arrived at the synagogue as the massacre began. But not only did Judah narrowly escape death last fall — more than seven decades ago, he narrowly survived the Nazi concentration camps. Today is Judah’s 81st birthday....

A second holocaust survivor who is here tonight, Joshua Kaufman, was a prisoner at Dachau. He remembers watching through a hole in the wall of a cattle car as American soldiers rolled in with tanks. “to me,” Joshua recalls, “the American soldiers were proof that God exists, and they came down from the sky.” they came down from heaven. I began this evening by honoring three soldiers who fought on d-day in the second world war. One of them was Herman Zeitchik. But there is more to Herman’s story. A year after he stormed the beaches of Normandy, Herman was one of those American soldiers who helped liberate Dachau.

Law Student Religious Liberty Writing Competition Announced

The J. Reuben Clark Law Society has published an announcement of its 10th Annual Religious Liberty Writing Competition. The competition is open to law students and to students pursuing related graduate studies. Papers must be submitted by July 1.

Tuesday, February 05, 2019

Wisconsin Supreme Court Candidate Says Calls For Recusal Promise Are Attacks On His Religious Beliefs

Milwaukee Journal Sentinel reports on the controversy surrounding 2005- 2006 law school blog posts of a state appeals court judge Brian Hagedorn who is a candidate for the state Supreme Court in the upcoming April 2 election in Wisconsin. As reported in an earlier Journal-Sentinel article, the posts sharply criticized the U.S. Supreme Court's ruling overturning anti-sodomy laws. saying they could lead to the legalization of bestiality. Hagedorn also attacked Planned Parenthood as an organization that was more devoted "to killing babies than to helping women." Critics have called for Hagedorn to promise to recuse himself in cases involving same-sex relationships and Planned Parenthood. In a radio interview, Hagedorn, an evangelical Christian, says that the criticism of his posts and calls for recusal are attacks on his religious beliefs.

Victims of Mass Church Shooting Can Sue Seller of Weapon

AP reports that a Texas state trial court judge has ruled that the victims of a 2017 mass shooting in a Sutherland Springs (TX) church can move ahead with a lawsuit against the sporting goods store where the gunman purchased his assault rifle and ammunition. The First Baptist Church shooting by Devin Kelly killed 26 and injured 20 others.

Monday, February 04, 2019

Uganda's Jewish Community Is Split Over Financial Charges and Religious Differences

Haaretz yesterday reported on the controversy-- which has now made its way into the courts-- between factions in Uganda's Jewish community, known as the Abayudaya. The community's rabbi, Rabbi Gershom Sizomu, has been charged by his half-brother, Joab Jonadab Keki, with mismanagement of the community's funds and property. Keki has asked a Ugandan court to remove Sizomu as rabbi, claiming he has taken community funds for himself and his family. Sizomu's supporters deny the charges and have filed a counter-claim. Apparently the controversy also has roots in the attempt by Keki to move the community toward Orthodox Judaism. Rzbbi Siaomu has completed his rabbinic studies in Los Angeles at the Conservative Jewish seminary, the Ziegler School. The Orthodox rabbinate in Israel refuses to recognize the Abayudaya as Jewish because the community was converted by Conservative rabbis.

New Study Says Hijab or Niqab Creates Positive Bias Toward Witnesses

Pakistan's Daily Times reports on the surprising results of an academic study on the impact of witnesses wearing Islamic head coverings in the court room:

Sexual assault victims wearing the hijab or niqab are viewed more positively when testifying in court than uncovered women, reveals a study that aimed to investigate the importance of being able to see the face to judge credibility among witnesses, along with the importance of religious garments.

Contrary to expectations, the study led by researchers from the Lancaster University in the UK and Memorial University of Newfoundland in Canada, found that “positive biases” are created when women testify in court with either their hair covered (the hijab) or their face and hair covered (the niqab).

The reason for the bias could be because the religious garments may signal that the wearer is more honest because of a positive view of religion.

The Muslim garment may dispel the common rape myth that the sexual assault victim was “asking for it” because it represents sexually conservative attitudes that are thought to disapprove of pre-marital or casual sexual encounters, the researchers explained.

Sunday, February 03, 2019

Recent Prisoner Free Exercise Cases

In DeMarco v.Davis, (5th Cir., Jan. 28, 2019), the 5th Circuit allowed an inmate to proceed against one defendant on his complaint regarding seizure of his religious material.

In Williams v. Las Vegas Metropolitan Police Department, 2019 U.S. Dist. LEXIS 12878 (D NV, Jan. 25, 2019), a Nevada federal district court allowed an inmate to move ahead with his claim that he was denied a food tray because he requested kosher food.

In Tormasi v. Lanigan, 2019 U.S. Dist. LEXIS 13028 (D NJ, Jan. 28, 2019), a New Jersey federal district court allowed a inmate "independently engaged in Jewish self-practice" to move ahead with some of his claims growing out of the prison's denial of his request for a religious circumcision.

In Brooks v. Cape Girardeau County, 2019 U.S. Dist. LEXIS 13847 (ED MO, Jan. 29, 2019), a Missouri federal district court dismissed an inmate's complaint that he has been denied a kosher diet.

In Barfell v. Aramark Correctional Services, 2019 U.S. Dist. LEXIS 13945 (ED WI, Jan. 29, 2019), a Wisconsin federal district court dismissed an inmate's complaint that his request for vegan meals was not approved for 5 days.

In Weathersby v. Ituah, 2019 U.S. Dist. LEXIS 15385 and Mitchell v. Ituah, 2019 U.S. Dist. LEXIS 15769 (SD TX, Jan. 31, 2019), a Texas federal district court dismissed a Muslim inmate's complaint that on one occasion inmates were not told that an evening meal consisting of "Beenies and Weenies" contained pork.

ACA Shared Responsibility Payment Did Not Violate Taxpayer's Free Exercise Rights

In Cash v. Internal Revenue Service, 2019 U.S. Dist. LEXIS 11603 (MD PA, Jan. 23, 3019), a Pennsylvania federal magistrate judge recommended dismissing a taxpayer's claim that the tax ("shared responsibility payment") imposed by the Affordable Care Act for failing to maintain health insurance violated plaintiff's free exercise rights under the 1st Amendment and RFRA. Plaintiff Robert Cash alleged that, "[a]lthough not required by [his religious denomination] to forego health insurance, [he] has chosen, as a matter of personal faith, to put his health needs in the hands of his Lord rather than the government's health insurance scheme." The court concluded however that the provision is a neutral law of general applicability. It went on to conclude that Cash failed to allege any facts establishing that the requirement restricted or imposed anything more than a de minimis burden on Cash's religious practice.

Friday, February 01, 2019

Suite Challenges School's Restrictions On Bible Distribution

Suit was filed this week in a Pennsylvania federal district court challenging regulations and policies of the Mechanicsburg Area School District that limit student members of a school's Bible Club from distributing Bibles to classmates during lunch time hours. School policy allows non-school materials to be distributed only on public sidewalks outside the building and only for 30 minutes before and 30 minutes after school, except as otherwise permitted by the principal. The complaint (full text) in Christians In Action Club v. Mechanicsburg Area School District, (MD PA, filed 1/30/2019) challenges these as "overbroad and unconstitutional time and place restrictions that impose a complete ban on literature distribution during the school day." The suit alleges that these restrictions violate students' free speech and free exercise rights both on their face and as applied. Cumberland Sentinel reports on the lawsuit.

Michigan's New AG Withdraws From Amicus Briefs In 8 Controversial Cases

Detroit News reports that Michigan's Democratic Attorney General Dana Nessel who last month replaced Republican Attorney General Bill Schuette has withdrawn Michigan's support of amicus briefs in eight high profile lawsuits. According to the paper:

The state’s newly appointed solicitor general Fadwa Hammoud filed the motions to withdraw from the cases Tuesday, noting in each motion that the amicus briefs filed in support of the cases by Republican former Attorney General Bill Schuette “no longer represents the legal position of the State of Michigan.”...

The four cases related to reproductive rights included litigation challenging a Kentucky law requiring a doctor to perform an ultrasound before an abortion; an Ohio law that criminalized abortions performed because of a fetal indication of Down syndrome; a federal case that required permission from the Office of Refugee Resettlement before an unaccompanied minor could have an abortion at a Texas holding facility; and an Ohio law that banned government funding for Planned Parenthood non-abortion health care programs and education programs because the agency provided abortion services.

Another case that Nessel withdrew from alleged a geriatric management facility in Missouri had discriminated against a gay man when the facility allegedly withdrew an offer of employment....

Three other cases ... were filed by ... Freedom of Religion Foundation. One case challenged the presence of a Latin cross on the Lehigh County, Pennsylvania, seal and flag; another in Wisconsin challenged laws that allowed for income tax exemptions for religious clergy, but not for members of the Freedom of Religion Foundation; and a third challenged the U.S. House chaplain’s unwillingness to allow the co-president of Freedom From Religion Foundation to deliver an invocation on the House floor.

Council of Europe Decries Sharia In EU Nations

On Jan. 22, the Parliamentary Assembly of the Council of Europe adopted Resolution 2253 (2019), Sharia, the Cairo Declaration and the European Convention on Human Rights.The Resolution says in part:

The Assembly considers that the various Islamic declarations on human rights adopted since the 1980s ... fail to reconcile Islam with universal human rights, especially insofar as they maintain the Sharia law as their unique source of reference. This includes the 1990 Cairo Declaration on Human Rights in Islam, which, whilst not legally binding, has symbolic value and political significance in terms of human rights policy under Islam. It is therefore of great concern that three Council of Europe member States – Albania, Azerbaijan and Turkey ...– have endorsed, explicitly or implicitly, the 1990 Cairo Declaration, as have Jordan, Kyrgyzstan, Morocco and Palestine, whose parliaments enjoy partner for democracy status with the Assembly....

The Assembly is also concerned about the “judicial” activities of “Sharia councils” in the United Kingdom. Although they are not considered part of the British legal system, Sharia councils attempt to provide a form of alternative dispute resolution, whereby members of the Muslim community, sometimes voluntarily, often under considerable social pressure, accept their religious jurisdiction mainly in marital and Islamic divorce issues, but also in matters relating to inheritance and Islamic commercial contracts. The Assembly is concerned that the rulings of the Sharia councils clearly discriminate against women in divorce and inheritance cases. The Assembly is aware that informal Islamic Courts may exist in other Council of Europe member States too.

Daily Mail reports on the Resolution.

Thursday, January 31, 2019

Muslim Inmate Seeks Right To Have Imam In Execution Chamber With Him

AP reports that a Muslim inmate on death row in Alabama has filed suit challenging the practice of only allowing a correctional officer and the Christian prison chaplain to be inside the death chamber where lethal executions are carried out. Dominique Ray is scheduled to be executed Feb. 7. He is seeking a stay while he litigates his right to have a Muslim imam stand in the execution chamber with him. Current practice only allows him to consult with his own spiritual adviser before the execution, with that adviser witnessing the execution from an adjoining room. Ray argues that the required presence of the prison chaplain in the execution chamber only serves the impermissible purpose of safeguarding the soul of the condemned inmate in accord with the Christian belief system.

Suit Challenges Vermont's Exclusion of Parochial High Schools From College Enrollment Program

Suit was filed this week in a Vermont federal district court challenging on free exercise and equal protection grounds Vermont's exclusion of students attending private religious high schools from the state's Dual Enrollment Program. The complaint (full text) in A.M. v. French, (D VT, filed 1/20/2019), focuses on the state's program that allows high school students at public and private secular schools, but not religious schools, to take college courses at public expense. ADF issued a press release announcing the filing of the lawsuit.

Wednesday, January 30, 2019

Greek Court Sentences Orthodox Bishop For Anti-Gay Blog Post

AP reports that a 3-judge appeals court in the town of Aigio in southern Greece has convicted Greek Orthodox Bishop Amvrossios of violating laws against racism and of abuse of office in the appeal of the Bishop's acquittal by a lower court. In a 2015 blog post, the prominent Bishop had urged reader to spit on homosexuals, saying: "They are not human beings, they are rejects of nature." The court sentenced the bishop to 7 months in prison, suspended for 3 years.

Pakistan Supreme Court Reaffirms Acquittal of Christian Charged With Blasphemy

On Tuesday a 3-judge panel of Pakistan's Supreme Court reaffirmed the Court's acquittal of Aasia Bibi, a Christian woman who had been accused of blasphemy. Bibi had been acquitted by the Supreme Court in October, but a reported by AP:

Following her October acquittal, radical religious parties took to the streets to protest, calling for the killing of judges who acquitted Bibi and for the overthrow of Prime Minister Imran Khan’s government. They also filed the last-minute appeal for a review of the Supreme Court acquittal.

The protests were spearheaded by the radical Tehreek-e-Labbaik party, whose single point agenda is protection of Islam and the Prophet Muhammad.

Bibi’s case goes to the core of one of Pakistan’s most controversial issues — the blasphemy law, often used to settle scores or intimidate followers of minority religions, including minority Shiite Muslims. A charge of insulting Islam can bring the death penalty.

[Thanks to Tom Rutledge for the lead.]

Tuesday, January 29, 2019

New York Extends Statute of Limitations For Childhood Sexual Abuse Cases

AP reports that the New York state legislature yesterday gave final passage to A02863, the Child Victims Act (full text). Last week, the Catholic Church dropped its opposition to the bill when it was amended to treat public and private schools the same. Gov. Andrew Cuomo says that he will sign the bill. A press release from Assembly Speaker Carl Heastie summarizes the bill's provisions:

The Child Victims Act would give childhood sexual abuse survivors an additional five years to seek criminal charges against perpetrators by changing when the statute of limitations clock begins to run. Under the bill, the five year period within which charges could be brought would not start until the victim reaches age 23, rather than 18.

For civil cases involving sex offenses against a child, the statute of limitations would be tolled and a lawsuit by a victim would be permitted up until the victim turns 55 years of age. The legislation includes a one year look-back window for survivors who are not able to seek recourse under current law. This one-year look-back window would take effect six months after the bill is signed into law.

[Thanks to Tom Rutledge for the lead.]

Monday, January 28, 2019

President Supports Bible Literacy Courses In Public Schools

As reported by Politico, Donald Trump today tweeted support for Bible literacy courses in public schools. Trump's tweet said:

Numerous states introducing Bible Literacy classes, giving students the option of studying the Bible. Starting to make a turn back? Great!

Sunday, January 27, 2019

Recent Prisoner Free Exercise Cases

In Gibson v. Miller, 2019 N.J. Super. Unpub. LEXIS 155 (NJ App., Jan. 22, 2019), a New Jersey state appellate court rejected an argument from an inmate convicted of murdering a former girlfriend that the divorce obtained by his wife was invalid because under Catholic doctrine a marriage cannot be dissolved by any earthly authority.

In Harris v. Holmes, 2019 U.S. Dist. LEXIS 10693 (D NJ, Jan. 23, 2019), a New Jersey federal district court dismissed a Muslim inmate's complaints about his diet during Ramadan, prayer time, access to prayer oils and wearing a kufi.

In Ruffin v. Baldwin, 2019 U.S. Dist. LEXIS 10881 (SD IL, Jan. 23, 2019), an Illinois federal district court allowed a Jewish inmate to move ahead with claims that he was denied certified kosher meals for breakfast, denied assembly for religious services, and not allowed to wear his religious medallion.

In Tenison v. Byrd, 2019 U.S. Dist. LEXIS 11620 (WD OK, Jan. 23, 2019), an Oklahoma federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 220080, Dec. 28, 2018) and dismissed a Muslim inmate's complaint that he had been threatened about giving away his halal food tray and that Muslims were no longer able to pray on the day room floor.

In Massaquoi v. Morris, 2019 U.S. Dist. LEXIS 10079 (MD PA, Jan. 18, 2019), a Pennsylvania federal magistrate judge recommended dismissing an inmate's claim that he was denied a religious exemption from the Department of Corrections's haircut policy.

Today Is International Holocaust Remembrance Day

Today-- January 27-- is the date designated by the United Nations as International Holocaust Remembrance Day. The date is the anniversary of the liberation in 1945 of the Auschwitz-Birkenau concentration and extermination camp.

Despite Urging, No Excommunication For Gov. Cuomo Over Abortion Rights Law

On Jan. 22, New York's Gov. Andrew Cuomo signed A00021, the Reproductive Health Act (full text) which protects abortion rights. As reported by the Washington Post on Friday, "some prominent Catholics have urged Cardinal Timothy Dolan of New York to declare Cuomo excommunicated." CNN Religion Editor Daniel Burke received this reaction from a spokesman for Cardinal Dolan:

I will not discuss any individual. Anything that follows is a statement of some general principles, and should not be considered a comment on any specific person.

First, excommunication should not be used as a weapon. Too often, I fear, those who call for someone's excommunication do so out of anger or frustration.

Second, notable canon lawyers have said that, under canon law, excommunication is not an appropriate response to a politician who supports or votes for legislation advancing abortion.

Third, from a pastoral perspective, if a pastor-- and a bishop is certainly a pastor of a diocese-- knows of a grave situation involving a parishioner, it is his duty to address that issue personally and directly with the parishioner. That was the approach of Cardinal O'Connor and Cardinal Egan (both of whom I served), and it is Cardinal Dolan's approach as well.

Fourth, and finally, from a strategic perspective, I do not believe that excommunication would be effective as many politicians would welcome it as a sign of their refusal to be "bullied by the Church", thinking it would therefore give them a political advantage. (See, for example, the case of Bishop Leo Maher and Lucy Killea).

Friday, January 25, 2019

Arkansas Anti-Israel Boycott Law Upheld

In Arkansas Times LP v. Waldrip, (ED AR, Jan. 23, 2019), an Arkansas federal district court dismissed a challenge to Arkansas' Act 710 which requires companies doing business with the state to certify that they are not boycotting Israel. Plaintiff claimed that the law compels speech regarding contractors’ political beliefs, association, and expression, and restricts state contractors from engaging in boycotts and boycott-related speech in violation of the 1st Amendment. The court rejected these arguments, holding:

A boycott of Israel, as defined by Act 710, is neither speech nor inherently expressive conduct.

The court went on to hold that prior U.S. Supreme Court precedents do not "create an unqualified right to engage in political boycotts." AP reports on the decision. [Thanks to Steven H. Sholk for the lead.]

New York City's Conversion Therapy Ban For Adults Challenged

Suit was filed this week in a New York federal district court challenging New York City's ban on conversion therapy. New York City's law, unlike almost all other bans, applies to sexual orientation and gender identity change counseling for adults as well as minors. The complaint (full text) in Schwartz v. City of New York, (ED NY, filed 1/23/2019), contends that NYC Law Number 2018/22-- which the complaint calls the "Counseling Censorship Law"-- violates the free speech and free exercise rights of both psychotherapist David Schwartz and his patients. It also claims that the law is void for vagueness. Dr. Schwartz in an Orthodox Jew who identifies with the Lubavitcher movement, and virtually all of his patients are Orthodox Jews. The complaint alleges in part:

Dr. Schwartz’s patients, as well as their views about morality, human nature, and the possibility of change, are often deeply informed by their religious beliefs. These individuals believe that it is more important to live consistently with their religious values than to conform their lives to their subjective feelings. Because Dr. Schwartz shares that faith and those convictions, he is able to provide psychotherapy that understands, respects, and assists these patients towards their goals.

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

HHS Exempts South Carolina Foster Care From Religious Anti-Discrimination Rule

In a letter (full text) dated Jan. 23, 2019, the U.S. Department of Health and Human Services granted the state of South Carolina an exemption so that faith-based foster care placement agencies operating in the state (such as Miracle Hill Ministries) can receive federal funds even though they select foster parents on the basis of religion. HHS emphasized that the anti-discrimination requirements found in its rules are broader than those in the Foster Care Program statute which only bars discrimination on the basis of race, color or national origin in selection of adoptive or foster parents. HHS said it had determined that requiring faith-based agencies to comply with the non-discrimination provision would be inconsistent with the Religious Freedom Restoration Act. However such agencies would be required to refer them to other agencies that do not use religious criteria, at least so long as such referrals do not violate the agency's religious beliefs. Philadelphia Inquirer reports on the HHS action.

Thursday, January 24, 2019

Belgium's Top Court Hears Arguments On Kosher/ Halal Slaughter Ban

Hamodia reports on lengthy oral arguments yesterday before Belgium's Council of State-- the country's highest court-- on laws that effectively ban kosher and halal slaughter by requiring animals be stunned before slaughter. The ban has been enacted in Wallonia and Flanders regions. Separate suits were filed challenging each of the laws. (See prior posting). Jewish and Muslim groups claim that the laws violate Belgium's constitution and the European Union's Charter of Rights. According to Hamodia's report:

During the session, attorneys summarized the arguments submitted in briefs in December 2017, when the case was filed. Key points that Jewish groups have made are that, in addition to the law’s violation of freedom of religion, the law inhibits the professions of shochtim and kosher butchers and discriminates against Jews and Muslims. Briefs also cite fishermen and hunters as examples of groups who kill animals in different ways but are unfettered by the law....

The high court will likely release some response on the case in the coming months, but it might avoid a decision for the time being by referring the matter to the EU’s Court of Justice in Luxemburg. Should they take this route, a final decision could be delayed by more than a year.

Suit Over Forced Removal of Hijab To Enter Courthouse Is Dismissed

In Elqutt v. Regalado, (ND OK, Jan. 22, 2019), an Oklahoma federal district court dismissed without prejudice a suit by a Muslim woman who was required to remove her hijab to gain entry to the Tulsa County Courthouse. After setting off metal detectors, sheriff's deputies insisted that Suha Elqutt remove her hijab in front of male deputies. After extensive discussions, she was permitted to remove it in a nearby parking lot while crouching between parked cars with only female deputies present, though she claims men could have walked past her as well. Dismissing her claim for damages for violation of her free exercise rights, the court held that defendants had qualified immunity because they would not have been put on notice by clearly established law that they were violating her constitutional rights. The court also denied her an injunction because she had not alleged a likelihood that she would return to the courthouse and face similar future actions. Tulsa World reports on the decision.

Florida Governor Acts In Response To Airbnb Israel West Bank Boycott

As previously reported, last November Airbnb under pressure from Palestinian officials, anti-settlement advocates and human rights groups announced that it is removing listings for rentals in Israeli settlements in the West Bank. Now, in a Jan. 15, 2019 letter (full text), Florida Governor Ron DeSantis has responded to the Airbnb action by ordering the state Department of Management Services to cease reimbursements to state employees for their stays arranged through Airbnb while on official state business. Also all state contracts must now bar such reimbursements to contractors. A January 15 press release by the Governor, calling the "Boycott, Divestment, Sanctions" movement "nothing more than a cloak for anti-Semitism," announced, several initiatives, including $2 million in funding for security for Jewish day schools, that he said makes Florida the "most Israel-friendly state in the country."

Iowa's "Fetal Heartbeat" Abortion Law Held Unconstitutional

In Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Dist. Ct., Jan. 22, 2019), an Iowa state trial court judge held that Iowa's "fetal heartbeat" abortion law violates the Iowa state constitution. Relying in large part on a 2018 Iowa Supreme Court decision which held that any limit on a woman's right to choose must meet the strict scrutiny test, the court said in part:

[I]t is undisputed that the threshold for the restriction upon a woman’s fundamental right to terminate a pregnancy (the detection of a fetal heartbeat) contained within Iowa Code chapter 146C constitutes a prohibition of previability abortions. As such, it is violative of both the due process and equal protection provisions of the Iowa Constitution as not being narrowly tailored to serve the compelling state interest of promoting potential life. Accordingly, this court grants the petitioners’ motion for summary judgment and declares Iowa Code chapter 146C unconstitutional and therefore void.... The petitioners’ request for injunctive relief will also be granted.

Townhall reports on the decision.

European Court: Austria's Law Giving Good Friday Off Only For Christians Violates EU Directive

In Cresco Investigation GmbH v. Achatzi, (ECJ, Jan. 22, 2019), the European Court of Justice held that Austria's law which makes Good Friday a holiday only for employees who are members of specified Christian churches and which requires additional pay for them if they must work that day violates European Council Directive 2000/78/EC on equal treatment in employment. The Court went on to hold:

Article 21 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that, until [Austria] has amended its legislation ..., in order to restore equal treatment, a private employer who is subject to such legislation is obliged also to grant his other employees a public holiday on Good Friday....

Courthouse News Service reports on the decision.

Wednesday, January 23, 2019

Settlement Filed In Louisiana Religion In Schools Case

Yesterday a settlement agreement was filed with a Louisiana federal district court in Does 1-4 v. Bossier Parish School Board. In the case (see prior posting), plaintiffs claimed widespread Establishment Clause violations in classrooms at at school events. As part of the settlement, the school board has adopted a revised religious expression policy. KTBS News reports that both sides are stressing elements of the settlement that they consider victories:

Americans United said provisions of the settlement include:

Creation of a monitoring committee to review and resolve potential violations or disputes involving religious freedom.
An agreement by the School Board to create, expand or seek out appropriate facilities to minimize the need to hold school events in places of worship.
A commitment to protecting the rights of all Bossier students to pray in school, as long as the prayers are initiated by students, aren’t disruptive and don’t occur during class time.
Permission for Bossier teachers to teach about religion in an objective manner, but not proselytize students.

The School Board said the agreement also includes the following:

Students maintain the right to pray at school and at school events.
Students will be allowed to speak about religion at school events.
Does not penalize school employees who bow their heads when prayers are offered.
Allows teachers to teach about religion in an objective manner.
Allows student clubs of all kinds, including Fellowship of Christian Athletes, to continue to organize, meet and be active on campus.
Allows students to express their own ideas verbally and to distribute literature.
Allows employees to wear items of jewelry that include symbols associated with religion

Arizona Supreme Court Hears Oral Arguments Over Refusal To Design Invitations For Same-Sex Wedding

Yesterday the Arizona Supreme Court heard oral arguments in Brush & Nib v. City of Phoenix. (Video of full oral arguments). In the widely-followed case, owners of an art studio that designs wedding products, citing their Christian religious beliefs, refused to create customer-specific merchandise for same-sex weddings. They sued to obtain an injunction against application of Phoenix's public accommodation anti-discrimination law to them. The state appeals court rejected most of plaintiffs' free speech and free exercise arguments. (See prior posting.) AP reports on the oral arguments.

Cert. Denied In Religious Autonomy Case

The U.S. Supreme Court yesterday denied certiorari in First Presbyterian Church U.S.A. of Tulsa, Oklahoma v. Doe, (Docket No. 18-599, cert. denied 1/22/2019). (Order List). In the case, which raises 1st Amendment religious autonomy issues, the Oklahoma Supreme Court reversed a trial court's dismissal of a suit by a convert to Christianity who was kidnapped and tortured by Islamic extremists in Syria after his baptism was published online. (See prior posting.)

Tuesday, January 22, 2019

Cert. Denied In Football Coach's Firing For On-Field Prayer

Today, the U.S. Supreme Court denied certiorari in Kennedy v. Bremerton School District, (Docket No. 18-12, cert. denied 1/22/19). In the case, the 9th Circuit affirmed the district court's denial of a preliminary injunction sought by a Washington-state high school football coach who in a challenge to his school district was suspended for kneeling and praying on the football field 50-yard line immediately after games. (See prior posting.) In today's action, Justice Alito, joined by Justices Thomas, Gorsuch and Kavanaugh, filed a 6-page concurring statement (scroll to end of Order List), saying in part:

In this case, important unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review....

While I thus concur in the denial of the present petition, the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future....

What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty.....

While the petition now before us is based solely on the Free Speech Clause of the First Amendment, petitioner still has live claims under the Free Exercise Clause of the First Amendment and Title VII of the Civil Rights Act of 1964.... Petitioner’s decision to rely primarily on his free speech claims as opposed to these alternative claims may be due to certain decisions of this Court.

In Employment Div., Dept. of Human Resources of Ore. v. Smith ... the Court drastically cut back on the protection provided by the Free Exercise Clause, and in Trans World Airlines, Inc. v. Hardison ... the Court opined that Title VII’s prohibition of discrimination on the basis of religion does not require an employer to make any accommodation that imposes more than a de minimis burden. In this case, however, we have not been asked to revisit those decisions.

MyNorthwest reports on the decision.

Supreme Court Allows Trump Administration's Ban On Transgenders In Military To Take Effect

In Trump v. Karnoski (Docket No. 18A625) and Trump v. Stockman (Docket No. 18627), (Order List), the U.S. Supreme Court today granted stays of preliminary injunctions issued by district courts, thus allowing the Trump Administration's policy barring most transgender individuals from enlisting in the the military to go into effect while constitutionality of the policy is litigated in appeals to the 9th Circuit and eventually in petitions for certiorari to the Supreme Court. Justices Ginsburg, Breyer, Sotomayor and Kagan would have allowed the district courts'injunction against implementing the policy to stand. The Court also, without dissent, refused to grant certiorari before the Circuit Courts rule, in the same two cases, as well as in Trump v. Doe. (Docket Nos. 18-676 to 678). New York Times reports on the Supreme Court's action.

Federal Prison With Special Accommodations For Jewish Inmates

Today's New York Times reports on the religious accommodations for Jewish inmates in the prison at which President Trump's former lawyer Michael Cohen hopes to serve his three year sentence:

What the minimum-security camp at the Federal Correctional Institution in Otisville, N.Y., does offer is a rarity in the federal prison system: a full-time Hasidic chaplain who oversees a congregation of dozens of Jewish inmates who gather for prayer services three times a day.

“For a Jewish person, there is no place like Otisville,” said Earl Seth David, 54, a former inmate who attended kosher meals, religious classes and weekly Shabbat services in the prison shul, a shared space where the Torah scrolls are locked up every night....

Orthodox inmates wear fringed vests known as zizit under their green prison uniforms. Prison work shifts are scheduled around daily prayer sessions and Sabbath observances. Before many holidays, the men are taken by prison bus to a nearby town for traditional mikvah baths....

Over the years, federal officials have “sort of carved this place out as a special location to put Jewish inmates,” said Benjamin Brafman, a prominent defense lawyer who has represented numerous defendants who have requested Otisville.

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.

Monday, January 21, 2019

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.

Sunday, January 20, 2019

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.

Saturday, January 19, 2019

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.

Friday, January 18, 2019

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.

Thursday, January 17, 2019

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.]

Wednesday, January 16, 2019

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.

Tuesday, January 15, 2019

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.

Monday, January 14, 2019

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.

Sunday, January 13, 2019

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.

Saturday, January 12, 2019

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.

Friday, January 11, 2019

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.

Thursday, January 10, 2019

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).

Wednesday, January 09, 2019

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.

Tuesday, January 08, 2019

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.