Recent Prisoner Free Exercise Cases

In Warner v. Friedman, 2019 U.S. Dist. LEXIS 19465 (ND CA, Feb. 6, 2019), a California federal district court allowed an inmate to move ahead with his claim that he is still not being provided an acceptable kosher diet.

In Quintero v. Bisbee, 2019 U.S. Dist. LEXIS 19760 (D NV, Feb. 7, 2019), a Nevada federal district court rejected a magistrate's recommendation (2018 U.S. Dist. LEXIS 221068, Oct. 10, 2018) and allowed an inmate to move ahead with his challenge to regulations that exclude'religious activities' from being rewarded by time off sentence.

In Rivers v. Dumont, 2019 U.S. Dist. LEXIS 20144 (MD PA, Feb. 6, 2019), a Pennsylvania federal magistrate judge recommended dismissing plaintiff's claim that his free exercise rights were infringed when police, before his arrest, accosted him on the sidewalk outside his apartment while he was speaking to Allah.

In Noor v. Pigniolo, 2019 U.S. Dist. LEXIS 20318 (ED CA, Feb. 7, 2019), a California federal magistrate judge dismissed with leave to amend an inmate's claim that his free exercise rights were infringed when the prison's library assistant racially profiled him by calling him a terrorist.

In Luther v. White, 2019 U.S. Dist. LEXIS 20486 (WD KY, Feb. 6, 2019), a Kentucky federal district court allowed a Bobo Shanti Rastafarian inmate to move ahead with some claims regarding removal of his dreadlocks and right to purchase and use incense.  Various other claims were dismissed.

In Blake v. Donovan, 2019 U.S. Dist. LEXIS 20937 (WD WI, Feb. 7, 2019), a Wisconsin federal district court dismissed on exhaustion grounds an inmate's complaint regarding access to a new type of Pagan prayer oil. It also deniedhis motion to be considered as an expert in Pagan and Asatru theology.

In Toney v. Harrod, 2019 U.S. Dist. LEXIS 21580 (D KA, Feb. 11, 2019), a Kansas federal district court denied qualified immunity to defendant correctional officer being sued by a Muslim inmate who complained that he should have received breakfast during Ramadan before dawn, and not merely before sunrise which is later.

Tax Preparer Refuses To Prepare Joint Return For Same-Sex Couple

Washington Post reports on the latest clash between religious liberty assertions and non-discrimination principles:

For four years, Bailey Brazzel says, she had employed the same tax preparer, Nancy Fivecoate of Carter Tax Service in Russiaville, Ind. Fivecoate prepared the taxes without issue each time — until this year, when Brazzel brought her new wife, Samantha.

Fivecoate declined to serve the couple, citing her religious beliefs.

This was the first year the Brazzels, who wed in July, were filing jointly as a married couple. According to Samantha, Fivecoate explained that she believed marriage was between a man and a woman and that she would therefore not be able to prepare their taxes.

Indiana does not have a statewide law barring discrimination on the basis of sexual orientation. (See prior related posting.) [Thanks to Nathan Walker for the lead.]

Air Force JAG OK's Religious References At Change of Command Ceremonies

In a legal opinion issued last December which is just now attracting attention, the U.S. Air Force Judge Advocate General has issued an opinion on the permissible extent of religious references during a change of command ceremony.  In OpJAGAF 2018-52 (Dec.19, 2018), the Air Force ruled:

[A] commander may:  briefly thank a Supreme Being (either generally, such as Providence, that Almighty Being, our Lord, or the Supreme Author of All Good; or specifically, such as Allah, Brahman, Christ, Ganesh, God, Yahweh, or even Beelzebub), have an invocation, and choose whomever he or she would like to provide the invocation. If the commander holds a personal promotion ceremony on the same day, a significant break must occur between the change of command and promotion ceremony in order for the commander to be freer in expressing his or her personal religious beliefs.  If a break does not occur, the commander must limit his or her religious comments to comments that are appropriate at the official change of command.

Friendly Atheist and Rewire News  report on the ruling.  The Military Religious Freedom Foundation plans to challenge the ruling.

Class Action Filed Hours After New York's Child Victims Act Is Signed

Just hours after New York's new Child Victims Act extending the statute of limitations for sex abuse claims was signed into law (see prior related posting), a class action lawsuit was filed in federal district court for the Northern District of New York. Rome (NY) Sentinel reports in part:

The Rev. Paul F. Angelicchio, of Rome, has been named in a lawsuit accusing him of sexually abusing a teenage altar boy when the priest worked at a church in Onondaga County in the late 1980s.

... Angelicchio was placed on a leave of absence by the Roman Catholic Diocese of Syracuse in late 2016 to investigate the claims. Church officials deemed the accusations not credible at the time and Angelicchio soon returned to service.

The lawsuit, filed on Feb. 14, also accuses two Syracuse-area priests who were named by the Diocese in December as having “credible” accusations of sexual abuse made against them. Those priests, Charles Eckermann and James F. Quinn, are both deceased.

Angelicchio was not among the priests listed by the Diocese in December.

D.C.Circuit: Conspiracy Suit Against U.S. Supporters of Israeli Settlers Is Not "Political Question"

In an important decision, the U.S. Court of Appeals for the District of Columbia Circuit has held that a suit against high profile Americans by 18 Palestinians and a Palestinian village council over defendants' support for the Jewish settler movement in the West Bank and Gaza may move forward. In Al-Timimi v. Adelson, (DC Cir., Feb. 19, 2019), the court summarized its holding:

The plaintiffs, both Palestinian nationals and Palestinian Americans, claim the defendants, pro-Israeli American individuals and entities, are conspiring to expel all non-Jews from territory whose sovereignty is in dispute. They sued in federal district court, pressing four claims: (1) civil conspiracy, (2) genocide and other war crimes, (3) aiding and abetting genocide and other war crimes and (4) trespass. Concluding that all four claims raise nonjusticiable political questions, the district court dismissed the complaint for lack of subject matter jurisdiction. We now reverse....

The suit claims that defendants-- 8 high net-worth individuals (including Sheldon Adelson and John Hagee), 13 tax exempt organizations (including the Jewish Naional Fund), 2 banks, 8 construction and support firms and former U.S. National Security Advisor Elliott Abrams conspired to funnel millions of dollars to Israeli settlements which funded "a militia of Israeli settlers [trained] to kill Palestinians and confiscate their property."

In a 21-page opinion, the court concluded:

[T]he plaintiffs’ claims present only one jurisdiction-stripping political question: who has sovereignty over the disputed territory. But a claim whose resolution also includes resolution of a political question can be dismissed on that basis only if the political question is “inextricable.” ... We believe this political question is extricable."

Reuters reports on the decision.

Baptist College's Attempt To Exit Baptist Convention Control Involves Ecclesiastical Determinations

In Executive Board of the Missouri Baptist Convention v. Missouri Baptist University, (MO App., Feb. 19, 2019), a Missouri state appellate court rejected attempts by Missouri Baptist University and The Baptist Home to amend their Articles of Incorporation to eliminate the Missouri Baptist Convention's right to select members of their boards of trustees and its right to veto amendments to their Articles.  The attempts to extricate themselves from Convention control followed an ideological battle within the Convention that moved it to the right.  In part the court held that certain affirmative defenses raised by the University concern ecclesiastical matters which civil courts cannot decide, saying:

[T]he University alleges that the Convention demanded that it ... refrain from teaching material that contradicted certain ideas which are clearly religious doctrine, such as the belief that the Earth was created in seven days roughly 6,000 years ago, or the belief that every living thing on Earth is descended from animals rescued from a flood on a vessel roughly 4,300 years ago.... The University claims that these demands ... “anticipatorily breached” provisions of a document entitled “A Christian Higher Education: A Statement of Purpose” which states ... that “... Christian education proceeds without fear into whatever knowledge may come.” ... Considering this defense as it currently is presented requires a court to rule – at least implicitly - on the truth of the story of Noah’s ark or Christian beliefs in creationism. We cannot conceive of a judicial inquiry which would impose on ecclesiastical matters more than this, nor can we find fault in the circuit court’s unwillingness to even attempt to find neutral grounds upon which it could rule when the color and content of the University’s allegations are so nakedly religious.

Recent Prisoner Free Exercise Cases

In Ali v. Duboise, (10th Cir., Feb. 6, 2019), the 10th Circuit affirmed the dismissal on qualified immunity grounds of a Muslim inmate's complaint that he was told to pray outside his cell but his request for a more specific location was met with threats, expletives, a push and temporary lock down.

In Saleem v. Bonds, 2019 U.S. Dist. LEXIS 16081 (D NJ, Jan.. 29, 2019), a New Jersey federal district court allowed an inmate to proceed with his complaint that the Muslim prison chaplain denied him access to Jumu'ah prayer services because photos depicting homosexuals had been sent to plaintiff.

In Hall v. Tapp, 2019 U.S. Dist. LEXIS 16506 (WD NC, Feb. 1, 2019), a North Carolina federal district court dismissed an inmate's complaint that a correctional officer took two bottles of oil and a kufi from his cell.

In Morales v. New Hampshire Attorney General, 2019 U.S. Dist. LEXIS 17125 (D NH, Feb. 1, 2019), a New Hampshire federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 17431, Jan. 3, 2019) and dismissed on qualified immunity grounds a Catholic inmate's free exercise objection to a strip search.

In Glenn v. Johnson, 2019 U.S. Dist. LEXIS 17515 (D NJ, Feb. 1, 2019), a New Jersey federal district court dismissed a Muslim inmate's complaint that he was not served Halal meat rather than a vegetarian diet.

In Vaughn v. Wegman, 2019 U.S. Dist. LEXIS 17639 (ED CA, Feb. 1, 2019), a California federal magistrate judge recommended dismissal of an inmate's complaint that the Community Resource Manager denied him participation in the Jewish kosher meal program and Jewish religious services.

In Depaola v. Clarke, 2019 U.S. Dist. LEXIS 18629 (WD VA, Feb. 5, 2019), a Virginia federal magistrate judge recommended finding that manner in which the one-quarter inch beard grooming policy was enforced against a Muslim inmate did not substantially burden his free exercise rights.

Pagan Temple Can Move Ahead With Its RLUIPA Claim

In Yetto v.City of Jackson, (WD TN, Feb. 5, 2019), the founders of a Pagan Temple in Jackson, Tennessee sought a declaratory judgment that the city's zoning ordinance does not apply to the type of religious gatherings held by them at their home.  They also sought an injunction against enforcement of the zoning ordinance against them.  A Tennessee federal district court dismissed their Section 1983 Free Exercise claim on statute of limitations grounds. However the court refused to dismiss their RLUIPA "equal terms" claim as well as their claim that their gatherings do not fall under the term "churches or similar places of worship" as used in the city's zoning ordinance.

Supreme Court Review Denied In Nuns' Pipeline Challenge

The U.S. Supreme Court today denied certiorari in Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, (Docket No. 18-548, certiorari denied 2/192019) (Order List).  In the case, the U.S. 3rd Circuit Court of Appeals dismissed on procedural grounds a Religious Freedom Restoration Act challenge to FERC's approval of a pipeline project. The natural gas pipeline at issue runs through land owned by an order of Catholic nuns whose religious beliefs require them to preserve the earth. Developers were authorized to acquire land for the pipeline by eminent domain. (See prior posting.)

Cert. Denied In Attempt To Subpoena Bishops' Documents

The U.S. Supreme Court today denied review in Whole Woman's Health v. Texas Catholic Conference of Bishops, (Docket No. 18-622, certiorari denied 2/19/2019) (Order List).  In the case, the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, held that a Texas federal district court should have quashed a document discovery order in a case in which several health care providers challenged the state's fetal remains regulations. (See prior posting). While discussing the Bishops' constitutional claim that internal deliberations of religious organizations should be protected, the 5th Circuit ultimately relied on  Federal Rules of Civil Procedure 45(d) which calls for quashing a subpoena when it imposes an undue burden. Becket issued a press release discussing the Supreme Court's denial of certiorari.

Rastafarian Minister's Trespass Arrest did Not Violate His Free Exercise Rights

In Brown v. Jordan, (WD AR, Feb. 14, 2019), a Rastafarian minister sued over his arrest that grew out of his picketing for passage of a medical marijuana issue on the 2016 Arkansas ballot. The court rejected his claim that his arrest violated his free exercise rights, saying in part:

In this case, Plaintiff was advocating for the passage of the Medical Marijuana Act. While the Act's passage would, in his view, pave the way for his church to lawfully use marijuana in its ceremonies, his advocacy did not itself involve his exercise of a religious belief. Furthermore, the officers who arrested him appeared at the Flash Market in response to a claim that Plaintiff was trespassing, as he had remained on the Flash Market property after having been asked to leave and was bothering the customers. No action the officers took on October 16, 2016 inhibited Plaintiff from practicing or exercising his religious beliefs. Therefore, no free exercise claim is stated, and this claim is dismissed.

Recent Prisoner Free Exercise Cases

In Timmons v. Polley, 2019 U.S. Dist. LEXIS 14533 (D NV, Jan. 29, 2019), a Nevada federal district court allowed a Muslim inmate to move ahead with complaints regarding inadequate Halal food during Ramadan, and refusal of permission to attend Jumah services and receive certain religious material.

In McKinney v. County of Imperial, 2019 U.S. Dist. LEXIS 14927 (CD CA, Jan. 30, 2019), a California federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 14927, Jan. 3, 2019) and dismissed, with leave to amend, a Jewish inmate's claim for damages for denial of kosher meals.

In Sassi v. Dutchess County, 2019 U.S. Dist. LEXIS 15387 (ND NY, Jan. 23, 2019), a New York federal district court allowed a Catholic inmate to move ahead with his complaint that he was denied a Bible for several days, but dismissed his complaint regarding inability to attend Bible study groups.

In Hardy v. Agee, 2019 U.S. Dist. LEXIS 15093 (WD MI, Jan. 31, 2019), a Michigan federal district court, in a case on remand from the 6th Circuit, adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 220438, Dec. 11, 2018) and dismissed a Muslim inmate's complaint that he was not allowed for a period of time to attend religious services, and was not allowed to attend Taleem (study sessions) while on room restriction for refusing a work assignment.

In Dykes v. Benson, 2019 U.S. Dist. LEXIS 15990 (WD MI, Feb. 1, 2019), a Michigan federal district court allowed an inmate to move ahead with his complaint that he could not access his Koran for the first two weeks in segregation.

Recent Articles of Interest

From SSRN:

• Michael S. McGinniss, Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession, (Harvard Journal of Law and Public Policy, Forthcoming).
• Robert C. Blitt, The Organization of Islamic Cooperation's (OIC) Response to Sexual Orientation and Gender Identity Rights: A Challenge to Equality and Nondiscrimination Under International Law, (28.1 Transnational Law & Contemporary Problems 89 (2019)).
• Nathan S. Chapman, Money for Missionaries: Rethinking Establishment Clause History, (University of Georgia School of Law Legal Studies Research Paper No. 2019-10 (2019).
• Dr. Krishnan Mani, Religious Militant Extremism in Pakistan: Security Threat to South Asian Region and Challenges, (February 11, 2019).
• Shahbaz Ahmad Cheema, Islamization of Restitution of Conjugal Rights by Federal Shariat Court of Pakistan: A Critique, (February 5, 2019).

From SmartCILP and elsewhere:

• Mark Fathi Massoud, How an Islamic State Rejected Islamic Law, 66 American Journal of Comparative Law 579-602 (2018).
• Ferdaouis Bagga, Central Nigeria: Overcoming Dangerous Speech and Endemic Religious Divides, (U.S. Commission on International Religious Freedom, Feb. 2019).

Former Cardinal McCarrick Defrocked By Vatican Over Sex Abuse

In the Vatican yesterday, the Congregation for the Doctrine of the Faith issued a statement (full text) announcing that former Cardinal Theodore McCarrick has been "dismiss[ed] from the clerical state," i.e. defrocked.  McCarrick had already resigned from the College of Cardinals over allegations of past sexual misconduct. In laicizing McCarrick, the Congregation for the Doctrine of the Faith found him guilty of "solicitation in the Sacrament of Confession, and sins against the Sixth Commandment with minors and with adults, with the aggravating factor of the abuse of power." Vatican News reported on the action against McCarrick.  An analysis of the news Crux says in part:

The four dioceses in the U.S. in which McCarrick served over the course of his long career - New York; Metuchen, New Jersey; Newark; and Washington, D.C., are all conducting separate investigations, a result of the fact that a request by the leadership of the U.S. bishops’ conference for a Vatican-sponsored apostolic investigation was turned down by Francis.

Suit Challenges Religious Requirements Permitted In South Carolina Faith-Based Foster-Care Agencies

A lawsuit was filed Friday by Americans United for Separation of Church and State on behalf of a Catholic woman challenging actions by the federal government and the state of South Carolina that permit foster-care placement agencies to use religious criteria for approval of foster care families.  The complaint (full text) in Maddonna v. U.S. Department of Health and Human Services, (D SC, filed 2/15/2019) challenges the waiver from the religious discrimination ban in federally funded foster-care programs that the Department of Health and Human Services granted to the state of South Carolina last month. (See prior posting.) It also challenges a March 13, 2018 executive order by the Governor of South Carolina (Executive Order 2018-12) permitting licensed faith-based foster-care child-placement agencies to limit recruitment and training of foster parents to those who share the same faith as the agency. Plaintiff in the case, Aimee Maddonna, was refused participation in a foster care volunteer program by Miracle Hill Ministries because Miracle Hill required participants to be born-again Christians who belong to a Protestant church. The suit alleges Establishment Clause, equal protection and due process violations. AP reports on the lawsuit.

Death Qualification of Jurors Does Not Violate RFRA

In United States v. Ofomata, (ED LA, Feb. 11, 2019), a Louisiana federal district court rejected a number of challenges to the federal death penalty, including the argument that the death-qualification process violates the Religious Freedom Restoration Act and the First Amendment by necessarily excluding jurors based on their religion. The court said in part:

Even assuming that Ofomata was able to show that the death-qualification process constitutes a substantial burden, his RFRA claim fails because “[t]he question [of] whether a juror is able to follow the law and apply the facts in an impartial way . . . is a compelling government interest.”

2nd Circuit Denies En Banc Review In RFRA Damages Case

In Tanvir v. Tanzin, the U.S. 2nd Circuit Court of Appeals by a vote of 7-3 denied en banc review of a panel decision that held RFRA plaintiffs could recover money damages against federal officials sued in their individual capacities. (See prior posting.) Plaintiffs in the lawsuit are three Muslim men who claim that federal officials placed or kept them on the no-fly list because they refused for religious reasons to act as FBI informants.  In denying en banc review, Chief Judge Katzmann and Judge Pooler filed an opinion explaining their reasons for doing so.  Judge Jacobs, joined by Judges Cabranes and Sullivan filed an opinion dissenting from the denial of review.

Court Refuses To Enjoin Florida Cities' Conversion Therapy Bans

In Otto v. City of Boca Raton, Florida, (SD FL, Feb. 13, 2019), a Florida federal district court refused to grant a preliminary injunction to prevent the cities of Boca Raton and Palm Beach, Florida from enforcing their ordinances that prohibit the use by medical professionals of sexual orientation change therapy on minors.  In a 60-page opinion, the court held that plaintiffs are unlikely to succeed on their free speech, prior restraint, vagueness or ultra vires claims.

New Jersey Dioceses Release Names of Accused Priests

North Jersey Record reports that the five Catholic dioceses in New Jersey yesterday posted the names of 188 priests who have been credibly accused of sexually abusing children over past decades.79 of the priests listed are still living. In a letter to the faithful of the Archdiocese of Newark, Cardinal James Tobin announced that a new Independent Victim Compensation Program has been established.

British Court Upholds Conviction For Holocaust Denial On YouTube

In Chabloz v. Regina, (Crown Ct., Feb. 13, 2019), s British Crown Court upheld the conviction of a Holocaust denier on three counts of sending a grossly offensive message by means of an electronic communication.  The decision upholds a Magistrates' Court conviction of Alsion Chabloz for three songs posted on Your Tube.The court held that Holocaust denial per se is not outlawed.  Rather, each instance of Holocaust denial must be examined to determine if it is grossly offensive.  The court describes each song as

a collection of anti-Semitic tropes or motifs, with a particular emphasis on Holocaust denial.  Furthermore, two of the songs are in whole or part set to the tunes of well-known Hebrew songs, which the prosecution says is no accident, bu rather a deliberate attempt to increase the insulting effect of each.

The Campaign Against Antisemitism reports that this is the first conviction in the UK for Holocaust denial on social media.

Satanic Temple Adherent Loses Challenge To Missouri Abortion Restrictions

In Doe v. Parson, (MO Sup, Ct., Feb. 13, 2019), the Missouri Supreme Court rejected a challenge by a member of the Satanic Temple to the state's informed consent abortion law. Rejecting both an Establishment Clause and a religious freedom challenge, the court said in part:

Ms. Doe alleges by offering her a booklet containing what she refers to as legislative findings constituting the “Missouri tenet,” Missouri is violating her religious beliefs by forcing her to read the contrary religious belief contained in the booklet. But the informed consent law does not purport to make any sort of legislative findings. It simply requires the noted statements be included in a booklet offered to a woman seeking an abortion. § 188.027....

This Court need not determine whether requiring Ms. Doe to have an ultrasound, to listen to the fetal heartbeat, or to read the booklet offered by Planned Parenthood would have constituted a restriction on her religious freedom, for the statute imposes no such requirements. Nothing in the informed consent law requires a woman seeking an abortion to have an ultrasound, much less to pay for the ultrasound or to listen to the fetal heartbeat. The informed consent law solely requires an abortion provider or another qualified professional to present a woman seeking an abortion with the opportunity to have or to view an ultrasound and, if she chooses to have one, an opportunity to listen to the heartbeat. Ms. Doe and any other woman is free to decline both opportunities.

Two justices also joined in concurring opinion. St. Louis Public Radio reports on the decision.

Cert Filed In Puerto Rico Catholic School Pension Case

A petition for certiorari (full text) was filed last month in Roman Catholic Archdiocese of San Juan Puerto Rico v. Feliciano (filed 1/14/2019). At issue is whether Puerto Rico courts can get to the assets of numerous related Catholic entities in Puerto Rico to satisfy pension obligations to Catholic school employees,The petition describes the question presented as:

Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability. 

The petition contains a translation of the opinion below rendered by the Puerto Rico Supreme Court.

Curriculum On Muslim World Does Not Violate 1st Amendment

In Wood v, Arnold, (4th Cir., Feb. 11, 2019), the U.S. 4th Circuit Court of Appeals rejected a high school student's Establishment Clause and free speech challenges to portions of classroom unit on The Muslim World.  One challenge was to the teacher's Power Point slide that included the statement that most Muslims' faith is stronger than that of the average Christian.  The other challenge was to the requirement on a work sheet for the student to fill in two words of the shahada.  The court said in part:

The use of both the comparative faith statement and the shahada assignment in Wood’s world history class involved no more than having the class read, discuss, and think about Islam. The comparative faith statement appeared on a slide under the heading “Peaceful Islam v. Radical Fundamental Islam.” The slide itself did not advocate any belief system but instead focused on the development of Islamic fundamentalism as a political force. And the shahada assignment appeared on the student worksheet under the heading “Beliefs and Practices: The Five Pillars.” Thus, the assignment asked the students to identify the tenets of Islam, but did not suggest that a student should adopt those beliefs as her own. 

Rejecting the student's compelled speech argument, the court said in part:

[T]he shahada assignment required Wood to write only two words of the shahada as an academic exercise to demonstrate her understanding of the world history curriculum. On these facts, we conclude that Wood’s First Amendment right against compelled speech was not violated.

[Thanks to Will Esser via Religionlaw for the lead.] 

Recent Articles and Book of Interest

From SSRN:

• Puranjay K. Vedi, Working Paper: Muslims, Their Identity and Discontent in India, (October 1, 2018).
• Puranjay K. Vedi, Working Paper: Decoding Anandpur Sahib Resolution, (November 19, 2018).
• Puranjay K. Vedi, Working Paper: A Brief Introduction to Old Russia, (November 19, 2018).
• Kathryn Chan & Howard Kislowicz, Divine Intervention, Part I: A Study of the Operation and Impact of Non-Governmental Interveners in Canadian Religious Freedom Litigation, ((2019) 90 SCLR (2d) Forthcoming).
• Ronald James Krotoszynski, 'The Devil Is in the Details': On the Central Importance of Distinguishing the Truly Public from the Truly Private in Reconciling Equality and Religious Liberty, (Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William N. Eskridge, Jr. & Robin Fretwell Wilson, eds., Cambridge University Press 2018) (Chapter 7)),
• Howard Kislowicz & Senwung Luk, Recontextualizing Ktunaxa Nation v. British Columbia: Crown Land, History and Indigenous Religious Freedom, ((2019) 88 S.C.L.R. (2d) 205-229).
• Lonen Titia, In Search of An EU Approach to Headscarf Bans: Where to Go after Achbita and Bougnaoui?, (Review of European Administrative Law; Vol. 10, Nr. 2, 47-73 (2017).
• Gautam Bhatia, Caste and the Law (January 30, 2019).

From SmartCILP:

• Jamal Greene, Rights As Trumps? 132 Harvard Law Review 28-132 (2018).
• John Medeiros & Philip Steger, Sanctuary and Harboring in Trump's America. 44 Mitchell Hamline Law Review 869-906 (2018).
• James A. Sonne, Cross-Cultural Lawyering and Religion: A Clinical Perspective, 25 Clinical Law Review 223-268 (2018).

Recent Book:

• Douglas Laycock, Religious Liberty (set of 5 volumes), (Wm. B. Eerdmans Publishing Co, Nov. 2018).

Immunization Order Did Not Violate Mother's Free Exercise Rights

In In re Julie C.and Anthony Price, 2019 Cal. App. Unpub. LEXIS 935 (CA App., Feb. 6, 2019), a California state appellate court held that a wife's free exercise rights were not violated by a court order in a divorce proceeding requiring immunization of her children.  In 2016, California repealed the personal belief exemption from immunization requirements for school children. The court ordered the immunizations on motion of the husband, finding that immunization was in the best interest of the children. (Corrected. Earlier version referred to wrong court).

House Dust Up Over Absence of "So Help Me God" In Oaths By Committee Witnesses

USA Today reported yesterday that Republican Louisiana Congressman Mike Johnson, new chairman of the Republican Study Committee, as well as some other Republicans, are charging that Democrats in the House are making a concerted effort to eliminate the phrase "so hep me God" when they administer oaths to committee witnesses. The charges come after incidents in the House Judiciary Committee and House Natural Resources Committee. [Thanks to Scott Mange for the lead.]

4th Circuit Allows Church To Move Ahead With Challenges To Zoning Denial

In Jesus Christ Is the Answer Ministries, Inc. v. Baltimore County, Maryland, (4th Cir., Feb. 7, 2019), the U.S. 4th Circuit Court of Appeals, reversing a Maryland federal district court, refused to dismiss a church's complaint regarding zoning denials that prevented it from operating a church on land that its pastor had purchased. The court held that plaintiffs had sufficiently alleged a substantial burden on their religious practice and discrimination based on religious denomination under RLUIPA. The court said in part:

Particularly relevant to this case, a government decision influenced by community members’ religious bias is unlawful, even if the government decisionmakers display no bias themselves.

The court also vacated the lower court's dismissal of plaintiffs' free exercise, equal protection and state constitutional claims. [Thanks to Will Wsser via Religionlaw for the lead.]

Supreme Court Keeps Injunction Against Louisiana Abortion Law In Effect

In June Medical Services, L.L.C. v. Gee, (US Sup. Ct. Feb. 7, 2019), a case involving Louisiana's new abortion law, the U.S. Supreme Court by a 5-4 vote prevented the law from going into effect pending the filing of a petition for certiorari.  A 5th Circuit Court of Appeals decision  had stayed a district court's injunction against the law.  Now the Supreme Court has stayed the 5th Circuit's action. At issue is a facial challenge to Louisiana's law that requires doctors at abortion clinics to have admitting privileges at nearby hospitals.  Challengers had argued that this would leave only one abortion clinic operating in the state.  In allowing the law to go into effect, the 5th Circuit questioned that conclusion.  In the Supreme Court, Justices Thomas, Alito, Gorsuch and Kavanaugh would have denied the application so that the law could take effect.  Justice Gorsuch, writing only for himself, filed an opinion saying that:

I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period if the Fifth Circuit’s factual prediction about the doctors’ ability to obtain admitting privileges proves to be inaccurate.

NBC News reports on the decision.

Supreme Court Vacates Execution Stay of Muslim Inmate Who Wanted Imam At His Side

By a 5-4 vote, the U.S. Supreme Court yesterday vacated the the stay of execution that had been granted the day before by the U.S. 11th Circuit Court of Appeals to a Muslim inmate who wanted to have his Imam present in the execution chamber when he was executed by lethal injection. (See prior posting.) In Dunn v. Ray, (US Sup. Ct., Feb. 7, 2019), the majority said it was granting the state's application because the inmate had waited until ten days before his Feb. 7 execution date to seek relief.  Justice Kagan, joined by Justices Ginsburg, Breyer and Sotomayor dissented, saying in part:

Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date.

Pro Publica has a lengthy report on Domineque Ray and his murder trial.

President Addresses National Prayer Breakfast

Yesterday President Trump delivered a 20-minute address to the 2019 National Prayer Breakfast. (Full text). The President emphasized his positions and actions his Administration has taken on numerous issues including human trafficking, abortion and faith-based adoption agencies. Trump said in part:

As President, I will always cherish, honor, and protect the believers who uplift our communities and sustain our nation. To ensure that people of faith can always contribute to our society, my administration has taken historic action to protect religious liberty.

Special Envoy To Monitor Anti-Semitism Is Appointed

On Tuesday, Secretary of State Mike Pompeo announced the appointment of  Elan S. Carr as the United States Envoy to Monitor and Combat Anti-Semitism.  The State Department has posted Carr's biography. Most recently he served as Deputy District Attorney for Los Angeles County.  He is an Iraq War veteran and the son of Iraqi Jewish refugees.  As reported by Times of Israel, the Envoy position has been vacant for two years. Last month the House of Representatives passed HR 221 that would have given the Envoy ambassadorial rank and have required the President to nominate someone for the position within 90 days.

Settlement Reached In Church's Suit Over Homeless Shelter Restrictions

Twin Cities Pioneer Press reports that on Wednesday the St. Paul, Minnesota City Council approved a settlement in a lawsuit filed against it by First Lutheran Church over hosting Listening House, a day shelter for the homeless, in the Church's basement.  Last July, a federal district court issued a preliminary injunction as to two of the conditions imposed on the use. (See prior posting.) A settlement was reached with Listening House in December. Under this week's settlement with the Church, the city agrees to alert religious institutions on its zoning forms of their RLUIPA rights, and to conduct a study of better procedures for land use applications by religious institutions. [Thanks to Evan Berquist for the lead.]

Russian Court Sentences Jehovah's Witness To 6 Years In Prison

Forum 18 reports that after 74 hearings over the past year, a Russian trial court in the city of Oryol yesterday sentenced Jehovah's Witness adherent Dennis Christensen to six years in prison under Russia's law banning extremist organizations. The court convicted Christensen of "organizing the activities of a banned extremist organisation" (Criminal Code Article 282.2, Part 1).  An appeal is planned. Christensen becomes the first Jehovah's Witness sentenced to prison in post-Soviet Russia.  Over 100 other criminal cases against Jehovah's Witnesses are pending.  In 2017, Russia's Supreme Court banned all Jehovah's Witness activity and ordered their property seized by the state. (See prior posting.)  Christensen will be entitled to credit for time already served in jail, and so will likely serve no more than 3 years and 5 months in prison. [Thanks to Scott Mange for the lead.]

11th Circuit Grants Stay of Execution To Muslim Inmate Whose Imam Would Be Excluded From Execution Chamber

In Ray v. Commissioner, Alabama Department of Corrections, (11th Cir., Feb. 6. 2019), the U.S. 11th Circuit Court of Appeals granted an emergency stay of execution to a Muslim inmate on death row whose request to have his Imam with him during his execution by lethal injection was denied by prison authorities.  Prison rules call for the prison chaplain-- a Christian-- to be in the execution chamber, but allow his Imam to be only in the adjoining witness room. The prison was willing to waive the requirement for the Christian chaplain to be present, but was not willing to allow his Imam to be in the chamber.  The appeals court concluded that this amounts to an Establishment Clause violation, saying in part:

The central constitutional problem here is that the state has regularly placed a Christian cleric in the execution room to minister to the needs of Christian inmates, but has refused to provide the same benefit to a devout Muslim and all other non-Christians.

Alabama appears to have set up “precisely the sort of denominational preference that the Framers of the First Amendment forbade.”

The court went on:

We acknowledge again that we owe deference to the state’s assessment of its security requirements, and we are reluctant to substitute our judgment for the Commissioner’s.... But we cannot simply rely on the unexplained ipse dixit of the state that there are no less restrictive means in the face of Alabama’s obvious denominational preference. To do so would ignore our constitutional obligations and the unambiguous command of the First Amendment that forbids the state from putting its power, prestige, and support behind one religious belief to the exclusion of all others. It remains the state’s burden to demonstrate that there are no other less restrictive means by which to protect its interests....

The court added:

Ray’s claim may well fit under the rubric of RLUIPA as well, though it seems to us more naturally framed by the Establishment Clause.

AP reports on the decison. [Thanks to Doug Velardo for the lead.] 

Christian Student Group Wins Injunction

In Business Leaders in Christ v. University of Iowa, (SD IA, Feb. 6, 2019), an Iowa federal district court granted a permanent injunction and awarded nominal damages to a Christian student group that was denied Registered Student Organization status. The denial was based on the University's Human Rights Policy that prohibits discrimination, among other things, on the basis of sexual orientation.  The student organization denied an executive committee spot to a gay student. In finding free speech and free exercise violations, the court said in part:

The Court suspects that some observers will portray this case as a fundamental conflict between nondiscrimination laws and religious liberty. Appealing as that may be, it overinflates the issues before the Court. The Human Rights Policy promotes valuable goals for both the University and society at large. There is no fault to be found with the policy itself. But the Constitution does not tolerate the way Defendants chose to enforce the Human Rights Policy.  Particularly when free speech is involved, the uneven application of any policy risks the most exacting standard of judicial scrutiny, which Defendants have failed to withstand.

Becket issued a press release announcing the decision.

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.

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.

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.

Recent Articles of Interest

From SSRN:

• Smadar Ben-Natan, Controversy and Consensus, Pornography and Hate Speech: The Legal Challenge to the Playboy Channel, (Prostitution, Pornography and Trafficking in Women: Israel's Blood Money, Esther Hertzog and Erella Shadmi, eds. 195-206, Routledge, 2019).
• Thomas McMorrow, MAID in Canada?: Debating the Constitutionality of Canada’s New Medical Assistance in Dying Law, (44:1 Queen's LJ 69 (2018).
• Marta Machado & Rebecca J. Cook, Constitutionalizing Abortion in Brazil, (Revista de Investigações Constitucionais / Journal of Constitutional Research, Curitiba, vol. 5, n. 3, p. 185-231, set./dez. 2018).
• Béligh Elbalti, Equality between Men and Women in the Islamic Law of Inheritance, (2018).
• Ihsan Yilmaz, Unofficial Islamic Legal Knowledge Production, (November 30, 2018).
• Salman Ahmad, Muhammad Amjad & Ejaz Aslam, Types of Interest in Islamic Law Analysis and Application, (Pakistan Journal of Islamic Research, Vol: 18, Issue: 2, 2018).
• Daniel Jacob Hemel, Tangled Up in Tax: The Nonprofit Sector and the Federal Tax System, (Nonprofit Sector: A Research Handbook (3rd edition, Patricia Bromley & Walter Powell eds., Stanford University Press, 2019 Forthcoming)).

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.

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.

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.

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.]

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.]

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! 

Recent Articles of Interest

From SSRN:

• Christopher C. Lund, Religious Exemptions, Third-Party Harms, and the False Analogy to Church Taxes, (Kentucky Law Journal, Vol. 106, p. 679, 2018 (symposium)).
• Petro Kurmaiev, Prostitution: The Essence and Motives, (July 23, 2018).
• Samuel Wolfe Calhoun, If Separation of Church and State Doesn’t Demand Separating Religion from Politics, Does Christian Doctrine Require It?, (74 Wash. & Lee L. Rev. Online 565 (2019)).
• Siraj Khan, Arab and Islamic States’ Practice: The Sharíʿah Clause and Its Effects on the Implementation of the Rome Statute of the International Criminal Court, (in Tallyn Gray (editor), Islam and International Criminal Law and Justice, Torkel Opsahl Academic EPublisher, Brussels, 2018).

From SmartCILP:

• Richard D. Komer, Trinity Lutheran and the Future of Educational Choice: Implications for State Blaine Amendments, 44 Mitchell Hamline Law Review 551-613 (2018).

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).

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.

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.

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.)

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.