New Trial Ordered After Juror Questions Defendant's Taking of Oath

In Davis v. Husain, (NJ App., March 1, 2019), a New Jersey state appellate court, in a hostile work environment case that has already wound its way to the state Supreme Court once, ordered a new trial.  At issue is a statement that was made by one of the jurors raising a question about the testimony of the defendant. The juror noted that defendant, a Hindu, had not placed his hand on the Bible when taking the oath. In earlier proceedings, it was shown that the defendant had acted in this way, at least in part, because of his religious belief that the left hand should never be placed on a holy book.  In ordering a new trial, the appeals court said in part:

The juror's comment regarding the Bible raises the specter of religious bigotry. Whether that concern colored the view of the other jurors is still unknown, with the exception of the juror who appeared. This is a peculiar situation. The Law Division judge said the juror who made the observation was only concerned with Husain's credibility, i.e. that a person who refused to place his hand on the Bible was incapable of taking the oath seriously and was therefore incredible. He contrasted this with out-and-out religious bigotry. But if he was correct, that too is simply impermissible. The exercise of a person's religion should not make him or her per se incredible.

NJ.com reports on the decision.

Colorado and Masterpiece Cakeshop Agree To End Their Litigation

In a press release yesterday, the Colorado Attorney General's Office announced that the state and Masterpiece Cakeshop have agreed to end their battle over the right of a bakery owner to refuse to design cakes celebrating LGBT events. As previously reported, while the U.S. Supreme Court appeal involving Masterpiece Cakeshop owner Jack Phillip's refusal to design a cake for a same-sex wedding ceremony was pending, another customer, Autumn Scardina, sought a cake from Masterpiece Cakeshop to celebrate her gender transition. Phillips refused and the Commission issued a probable cause determination.  In response, Phillips filed a federal lawsuit claiming that the Commission was targeting him in violation of his constitutional rights.  In yesterday's announcement, the state said:

Under the terms of the agreement, the Colorado Civil Rights Commission will voluntarily dismiss the state administrative action against Masterpiece Cakeshop and its owner, Jack Phillips, and Mr. Phillips will voluntarily dismiss his federal court case against the State.... This agreement does not affect the ability of Autumn Scardina ... to pursue a claim on her own.

“After careful consideration of the facts, both sides agreed it was not in anyone’s best interest to move forward with these cases. The larger constitutional issues might well be decided down the road, but these cases will not be the vehicle for resolving them. Equal justice for all will continue to be a core  value that we will uphold as we enforce our state’s and nation’s civil rights laws,” said [Attorney General] Weise...

ADF, which represents Phillips, issued a press release yesterday saying that the dismissal of litigation comes "in the wake of newly discovered evidence of the state’s ongoing hostility toward religious freedom."

Vatican To Open Pius XII Archives

In a speech yesterday to to superiors, employees and collaborators of the Vatican Secret Archive, Pope Francis announced that he is opening the Vatican Archives for the reign of Pope Pius XII.  The records will become available next year. Pius XII has been criticized for what has been seen by some as a lack of action to oppose the Holocaust. (Background.) In his speech (full text and report from Zenit), Pope Francis said in part:

The figure of that Pontiff, who found himself guiding the Barque of Peter at one of the saddest and darkest moments of the twentieth century, agitated and lacerated by the last world war, with the consequent period of reorganization of the nations and post-war reconstruction, has already been investigated and studied in many aspects, sometimes discussed and even criticized (it could be said with some prejudice or exaggeration)....

The Church is not afraid of history; rather, she loves it, and would like to love it more and better, as God does! So, with the same trust of my predecessors, I open and entrust to researchers this documentary heritage.

[Thanks to Tom Rutledge for the lead.] 

Supreme Court Denies Cert. In Case On Preservation Grants To Churches

The U.S. Supreme Court today denied review in the companion cases of Morris County Board of Chosen Freeholders v. Freedom From Religion Foundation, (Docket No.18-364) and Presbyterian Church in Morristown v. Freedom From Religion Foundation, (Docket No. 18-365) (certiorari denied 3/4/2019). (Order List [scroll to pg. 9]).  In the case, the New Jersey Supreme Court held that historic preservation grants to 12 churches (totaling $4.6 million) violate the Religious Aid Clause of the New Jersey Constitution.  That clause (Art. I, Sec. 3) provides that no person shall be obliged to pay taxes for building or repairing any church. The New Jersey Supreme Court concluded that there is no implied exception to this prohibition for historical preservation, and that this is consistent with the Free Exercise Clause of the U.S. Constitution. (See prior posting.)  In the U.S. Supreme Court today, Justice Kavanaugh, joined by Justices Alito and Gorsuch, filed a statement concurring in the denial of review, but contending that:

the decision of the New Jersey Supreme Court is in serious tension with this Court’s religious equality precedents.

However they agreed that certiorari should be denied in this case both because of unclear factual details and because

there is not yet a robust post-Trinity Lutheran body of case law in the lower courts on the question whether governments may exclude religious organizations from general historic preservation grants programs.

City Settles Firefighter's Religious Discrimination Suit

The city of Utica, New York has settled a religious accommodation lawsuit that was filed against it by a firefighter who refuses to cut his hair after taking a Nazirite vow.  Under the settlement announced Friday, firefighter John Brooks has been granted a religious accommodation from the fire department's grooming policy. A press release from First Liberty announced the settlement. First Liberty's website has more on the case.

Recent Articles of Interest

From SSRN:

• Caroline Mala Corbin, Christian Legislative Prayers and Christian Nationalism, (Washington and Lee Law Review, Vol. 75, 2019).
• Nathan B. Oman, Civil Disobedience in Latter-Day Saint Thought, (William & Mary Law School Research Paper No. 09-388, 2019).
• William Nichol Eskridge, Robin Fretwell Wilson & Andrew M. Koppelman, The Joys of Mutual Contempt, (Chapter 9 in: Religious Freedom, LGBT Rights and the Prospects for Common Ground, (William N. Eskridge & Robin Fretwell Wilson 2018)).
• William Nichol Eskridge, Robin Fretwell Wilson & Alan Edward Brownstein, Choosing among Non-Negotiated Surrender, Negotiated Protection of Liberty and Equality, or Learning and Earning Empathy, (Chapter 9 of Religious Freedom, LGBT Rights and the Propects for Common Ground, (William N. Eskridge & Robin Fretwell Wilson 2018)).
• Scott R. Bauries, The Logic of Speech and Religion Rights in the Public Workplace, 19 Marquette Benefits and Social Welfare Law Review 137 (2018).
• Barry Sullivan, Prophesy, Public Theology, and Questions of Justice: Some Modest Reflections, (February 11, 2019).
• Mark Leeming, Injunctions Restraining Enforcement of 'Muslim Ban' Executive Orders, (Australian Law Journal, Vol. 91, 2017, pp 443-447).
• William Nichol Eskridge, Robin Fretwell Wilson & David Saperstein, Masterpiece Cakeshop: Impact on the Search for Common Ground, (Chapter 34 in: Religious Freedom, LGBT Rights and the Prospects for Common Ground (William N. Eskridge & Robin Fretwell Wilson 2018).

From SSRN (International and Comparative Law):

• Asli U. Bali & Hanna Lerner, Religion and Constitution Making in Comparative Perspective, (Chapter written for: Handbook on Comparative Constitution Making, Edited by David Landau and Hanna Lerner, Edward Elgar (2019 Forthcoming).
• Craig B. Mousin, ‘Can One Still Call It Ignorance or Bias? Nexus Test Modified, but Courts Still Fail to Address International Law Under the International Religious Freedom Act’, (Migration and Religious Freedom, Essays on the Interaction Between Religious Duty and Immigration Law, Carolus Grütters & Dario Dzananovic (eds), (Wolf Legal Publishers, Nijmegen, the Netherlands, 2018).
• Beth A. Simmons & Anton Strezhnev, Human Rights and Human Welfare: Looking for a ‘Dark Side’ to International Human Rights Law, (In: The Future of Human Rights 60-87 (Jack Snyder et al. eds., Cambridge University Press, 2018).
• Stijn Smet, Free Speech versus Religious Feelings, the Sequel: Defamation of the Prophet Muhammad in E.S. v Austria, (European Constitutional Law Review, Forthcoming).

From SmartCILP;

• Theresa Finley & Mark Koyama, Plague, Politics, and Pogroms: The Black Death, the Rule of Law, and the Persecution of Jews in the Holy Roman Empire, [Abstract], 61 Journal of Law & Economics 253-277 (2018).
• David Nimmer, Miriam's Oasis, 34 Touro Law Review 983-993 (2018).
• Alexander B. Traum, Applied Anti-Semitism: The BDS Movement and the Abuse of Corporate Social Responsibility, 34 Touro Law Review 1025-1060 (2018).
• Donald L. Beschle, Are Two Clauses Really Better Than One? Rethinking the Religion Clause(s), 80 University of Pittsburgh Law Review 1-32 (2018).
• Kristen Stilt, Salma Waheedi & Swathi Gandhavadi Griffin, The Ambitions of Muslim Family Law Reform, 41 Harvard Journal of Law & Gender 301-342 (2018).
• Allan W. Vestal, Religious State Constitution Preambles, 123 Pennsylvania State Law Review 151-190 (2018).

Recent Prisoner Free Exercise Cases

In Ollie v. Atchison, 2019 U.S. App. LEXIS 5439 (7th Cir., Feb. 25, 2019), the 7th Circuit affirmed dismissal of an inmate's claim that he was denied access to congregative religious services.

In Franklin v. Arguello, 2019 U.S. Dist. LEXIS 24469 (D NV, Jan. 14, 2019), a Nevada federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 25065, Jan. 7, 2019) and refused to dismiss an inmate's complaint that he was not allowed to participate in group Christian worship services and receive communion.

In Missouri v. Vansickle, 2019 U.S. Dist. LEXIS 23246 (WD MI, Feb. 13, 2019), a Michigan federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 25071, Jan. 23, 2019) and denied injunctive relief but permitted a Nation of Islam inmate to move ahead with his damages claim for refusal to accept his late sign-up for Ramadan meals.

In Stewart v. Richardson, 2019 U.S. Dist. LEXIS 26893 (SD NY, Feb. 19, 2019), a New York federal district court dismissed an inmate's complaint that his Arabic texts and his "Complete Book of Witchcraft" were confiscated.

In Cary v. Mox, 2019 U.S. Dist. LEXIS 26578 (ED MI, Feb. 20, 2019), a Michigan federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 27531, Jan. 22, 2019) and denied summary judgment, dismissing some of the claims, to a former inmate now on parole who asserted that his Native American medicine bag was desecrated in a search.

In Petersen v. Fresno County Sheriff's Office, 2019 U.S. Dist. LEXIS 27928 (ED CA, Feb. 20, 2019), a California federal magistrate judge recommended dismissing an inmate's complaint that his Sikh head covering was confiscated on two occasions.

In Dewitt v. Johnson, 2019 U.S. Dist. LEXIS 28493 (ND OH, Feb. 22, 2019), an Ohio federal district court dismissed an inmate's complaint that as a member of Disciple of Akrah he was discriminated against and denied a headband and scroll bag.

In Lane v. Tavares, 2019 U.S. Dist. LEXIS 28511 (MD PA, Feb. 21, 2019), a Pennsylvania federal magistrate judge recommended allowing a Muslim inmate to move ahead with his complaint that he was denied accommodation for his medical condition that he sought so he could access Friday prayers that were on a different floor of the prison.

In Love v. Price, 2019 U.S. Dist. LEXIS 29287 (ED MO, Feb. 25, 2019), a Missouri federal district court dismissed an inmate's claim that for two months he was forced to eat food that violated his religious diet.

In Ha'Keem v. Mesojedec, 2019 U.S. Dist. LEXIS 30328 (D MN, Feb. 26, 2019), a Minnesota federal district court rejected in part a magistrate's recommendation (2019 U.S. Dist. LEXIS 31083, Jan. 16, 2019) and allowed Muslim civil sex-offender detainees to move ahead on their claim that their facility's prayer oil policy violates their free exercise rights. However the court adopted other parts of the magistrate's recommendation and dismissed claims regarding religious discussions, cross-gender pat down searches, prayer rugs, prayer space and access to religious services.

Anti-Muslim Display In West Virginia Capitol Sparks Controversy

WV News and NBC News report on an anti-Muslim display and pamphlets set up in the West Virginia Capitol Rotunda as part of "WVGOP Day" by the organization ACT for America. According to NBC:

The display featured a picture of the World Trade Center in New York City as a fireball exploded from the one of the Twin Towers, set above a picture of Democratic Rep. Ilhan Omar, who is Muslim.

"'Never forget' - you said. . ." read a caption on the first picture. "I am the proof - you have forgotten," read the caption under the picture of Omar, who is wearing a hijab....

Several Democrats strongly objected to the display, and got into an argument with the House's sergeant at arms, Anne Lieberman, who allegedly remarked that "All Muslims are terrorists." Lieberman resigned Friday night.  Republican House speaker Roger Hanshaw issued a statement saying in part:

The West Virginia House of Delegates unequivocally rejects hate in all of its forms.

Pence To CPAC On Religious Liberty

On Friday, Vice President Pence addressed the 2019 CPAC Convention (full text of remarks). A portion of his 30-minute speech addressed religious liberty.  The Vice President said in part:

You know, the freedom of religion is not just enshrined in our Constitution; it’s enshrined in the hearts of the American people.  But make no mistake about it: Freedom of religion is under attack in our country.  Lately, it’s actually become fashionable for media elites and Hollywood liberals to mock religious belief.

My own family recently came under attack just because my wife Karen went back to teach art to children at a Christian school....

But let me be clear on this point: This is not about us.  It’s about all of you.  It’s about the sincerely held belief of millions of Americans who cherish their Christian faith and Christian education.  And so I’ll make you a promise: Under this President and this administration, we will always stand with people of faith.  We will always defend the freedom of religion of every American of every faith, so help us God.  (Applause.)

And as we reflect on our God-given liberties, I got to tell you, I couldn’t be more proud to serve as Vice President to the most pro-life President in American history.  (Applause.)

Since the first days of this administration, President Donald Trump has stood without apology for the sanctity of human life.  In one of his very first acts, the President reinstated the Mexico City Policy, preventing taxpayer dollars from funding abortion or abortion providers around the world.  And here at home, President Trump signed a law to allow all 50 states to defund Planned Parenthood.  (Applause.)  Life is winning in America once again.

But for all the progress we’re making — tragically, at the very moment that more Americans than ever before are embracing the right to life, leading members of the Democratic Party are embracing a radical agenda of abortion on demand.

Reporting On Cardinal Pell Conviction Is Examined

Get Religion published a piece today examining media coverage of the child sex abuse charges against Australia's Cardinal George Pell, as well as the outcome of his trial.  Reporter Julia Duin begins her report as follows:

I hadn’t been following the child abuse charges against Australian Cardinal Pell all that much because I assumed, based on the evidence, that they were somewhat plimsy and would never stick.

But they did — in a series of trials that are as odd as they come. At the heart of the proceedings there was a single witness and what appeared to be “recovered memories” of abuse. 

The end result? A cardinal is now in jail and a bunch of journalists have been handed the Aussie equivalent of contempt-of-court charges.

(See prior related posting.) Perth Now reports on Pell's appeal of his conviction.

Challenge To Treatment of Hinduism In California Curriculum Fails

In California Parents for the Equalization of Educational Materials v. Torlakson, (ND CA, Feb. 28, 2019), a California federal district court dismissed the claim that California public schools' History-Social Science Content Standards adopted in 1998 and its History-Social Science Framework adopted in 2016 violate the Establishment Clause by demonstrating hostility toward Hinduism.  Plaintiffs contended that the discussion of Hinduism only from a secular perspective, over-emphasis on the caste system, adoption of the Aryan Invasion Theory and the description of Hinduism's treatment of women all denigrate Hinduism. They also object to the input of SAFG, a group of academics who they describe as anti-Hindu. The court concluded however:

[E]ven if there is some evidence by which a reasonable person could infer a disapproval of Hindu religious beliefs—an excessive discussion of caste, for example, or a failure to be fully transparent about coordination with SAFG—that is not enough to conclude that the primary message of the Standards and Framework is disparagement.

Courthouse News Service reports on the decision.

Canadian Suit Challenges Failure of Hasidic Schools To Follow Provincial Curriculum

CBC reports that a trial date has been set for a year from now in a case filed in 2015 challenging the failure of Hasidic Jewish schools to comply with the curriculum set by education authorities in the Canadian province of Quebec. Plaintiff Yohanen Lowen and his wife Shifra allege that when Yohanen graduated high school at age 18, he could barely add and subtract, he could not read and write in English or French, and he was unequipped to find employment. The lawsuit was brought against both the Quebec Education Ministry and Hasidic schools in a secluded ultra-Orthodox community near Montreal.

9th Circuit: Suit Against FBI For Anti-Muslim Surveillance May Move Ahead

In Fazaga v. Federal Bureau of Investigation, (9th Cir., Feb. 28, 2019), the U.S. 9th Circuit Court of Appeals in a 103-page opinion held that three Muslim plaintiffs may move ahead with many of their claims growing out of an FBI investigation that they allege involved unlawful searches and anti-Muslim discrimination. The court in a lengthy summary of its holdings said in part:

Addressing plaintiffs’ claims arising from their allegations that they were targeted for surveillance solely because of their religion, the panel first held that the First Amendment and Fifth Amendment injunctive relief claims against the official-capacity defendants may go forward. Second, concerning plaintiffs’ Bivens claims seeking monetary damages directly under the First Amendment’s Establishment and Free Exercise Clauses and the equal protection component of the Fifth Amendment’s Due Process Clause, the panel concluded that the Privacy Act and the Religious Freedom and Restoration Act (“RFRA”), taken together, provided an alternative remedial scheme for some, but not all, of their Bivens claims....  Fourth, concerning plaintiffs’ claims that Agent Defendants and Government Defendants violated RFRA by substantially burdening plaintiffs’ exercise of religion, and did so without a compelling government interest without the least restrictive means, the panel held that it was not clearly established in 2006 or 2007 that defendants’ covert surveillance violated plaintiffs’ freedom of religion protected by RFRA. The panel affirmed the district court’s dismissal of the RFRA claim as to the Agent Defendants because they were not on notice of a possible RFRA violation.

UPDATE: Los Angeles Times reports on the decision.

EU Court of Justice: Halal and Kosher Meat Cannot Be Sold As Organic Without Pre-Slaughter Stunning

In Œuvre d’assistance aux bêtes d’abattoirs (OABA) v. Ministre de l’Agriculture et de l’Alimentation, the Court of Justice of the European Union in a Grand Chamber opinion held that under EU regulations, the EU Organic logo cannot be used for animals which have been slaughtered in accordance with Halal or kosher religious rites without first being stunned.  A ruling by the Court of Justice had been requested by French authorities in a case involving a challenge to the marketing of Halal beef products as organic. The Court also issued a press release summarizing the decision.  The Independent, reporting on the decision, says that 88% of the animals slaughtered as Halal in Britain are stunned before slaughter. Kosher slaughter cannot use pre-slaughter stunning.

Missouri Bill Would Bar Anonymous Plaintiffs In Church-State Cases

Friendly Atheist reports on an interesting bill that has been introduced in the Missouri legislature.  House Bill 728 (full text) provides:

Except if the party in interest is a minor, in any action involving the separation of church and state, such action shall be prosecuted in the name of the real party in interest.

If enacted, the bill would prevent "John Doe" or "Jane Doe" plaintiffs in Establishment Clause challenges in state courts where the plaintiff is an adult. Suits are often filed under such pseudonyms when the plaintiff fears harassment from those who disagree with his or her position. A hearing has been held in the House on the bill, but it is not yet calendared for a vote.

SCOTUS Oral Argument Transcript In Bladensburg Cross Case Now Available

The transcript of today's full oral arguments in the Supreme Court in American Legion v. American Humanist Association is now available.

Missouri Supreme Court Rules On Transgender and Sex Stereotyping Discrimination

In R.M.A. v. Blue Springs R-IV School District, (MO Sup. Ct., Feb. 26, 2019), the Missouri Supreme Court in a 4-2 decision held that a transgender male middle-school student stated a claim for sex discrimination under Missouri's Human Rights Act when he alleged that he was not permitted to use the boys' restrooms or locker room.

In Lampley v. Frost, (MO Sup. Ct., Feb. 26, 2019), a case involving complicated procedural issues, the Missouri Supreme Court reversed and remanded a lower court's dismissal of a case in which a gay man claims harassment and retaliation at work.  As summarized in a Court press release:

Five judges agree the circuit court’s judgment should be reversed and the case remanded. Five judges agree the employees sufficiently stated a claim for sex discrimination under the state’s human rights act. Three agree the claims here were based on sex stereotyping rather than sexual orientation; two believe the Court should not have considered whether sex discrimination can be proved by evidence of sex stereotyping. Six judges agree it is unnecessary to reach the issue of whether the state’s act covers claims of discrimination based on sexual orientation; one would hold the act does not extend to discrimination based on sexual orientation.

St. Louis Post Dispatch reports on the decision.

United Methodist Church Risks Split Over Position On LBTQ Ordination and Marriage

HuffPost reports that the United Methodist Church will likely break apart after a close vote yesterday at its 2019 General Conference on LGBTQ roles in the Church. As reported by United Methodist News Service, the delegates adopted the so-called "Traditional Plan" by a vote of 438 to 384.  This plan continues the Church's ban on ordaining LGBTQ clergy and the prohibition on officiating at or hosting same-sex weddings. The opposing "One Church Plan" was defeated by a vote of  449 to 374.  It would have allowed ordination LGBTQ pastors, and allowed, but not required, churches to host and pastors to officiate at same-sex marriages.  Later, by a vote of 405 to 395, the Conference asked the Church's Judicial Council to rule on the constitutionality of the Traditional Plan at its scheduled April meeting.

In South Africa, Funeral Homes Sue Church Over Fake Resurrection

In Johannesburg, South Africa, three funeral parlors have filed suit for reputational damage against Alleluia Ministries International leader Prophet Alph Lukau claiming that he used their hearse to carry out a hoax in which he purported to resurrect a dead person. According to news reports yesterday, church representative tricked the funeral homes into providing a coffin and transportation for the supposed body.  Video of the purported resurrection went viral after it was placed on the church's social media sites. The Star further reports:

Lukau had claimed that a man, whom he referred to as Elliot, died on Friday, and was on his way to Zimbabwe on Sunday before the pastor brought him back to life.

Meanwhile, snaking queues of people from as far as the US and the Caribbean waited to buy “holy oil” and “prophetic salt”....

The funeral parlors have also filed police complaints.

Buffalo Diocese Sued By Sex Abuse Victim For $300 Million

WGRZ News reported Monday that the Catholic Diocese of Buffalo, New York has been sued for $300 million by a woman who says that she was sexually abused between 1978 and 1981 by the priest who was her high school science teacher.  The accused abuser, Rev. Mark Andrzejczuk, who died in 2011 was a member of a Franciscan order which is also named as a defendant.  New York's recently passed Child Victims Act opened the way for Gail Holler-Kennedy to file the suit.

Supreme Court Will Hear Oral Arguments Today In Bladensburg Cross Case

This morning the U.S. Supreme Court will hear oral arguments in American Legion v. American Humanist Association.  In the case, the U.S. 4th Circuit Court of Appeal, in a 2-1 decision, held that the 40-foot high Bladensburg Cross that has stood for over 90 years as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting.) The Circuit Court, by a vote of 8-6, then denied en banc review. (See prior posting). Some 47 amicus briefs have been filed in the case. Here is the SCOTUS blog case page for the case, with links to the briefs, other filings and commentary.  I will post the full transcript of today's oral arguments when it becomes available, probably this afternoon.

Australian Court Convicts Cardinal Pell On Child Sex Abuse Charges

With the lifting today of a gag order that had been imposed by Australian courts,  NPR reports on the conviction last December of Australian Catholic Cardinal George Pell on five counts of historical child sexual offenses dating back decades.  Pell, now 77, once served as Archbishop in Melbourne. Pell had been a top advisor on the Vatican's budget to Pope Francis. He was removed from the College of Cardinals last October. Pell will be sentenced tomorrow. (Reports had surfaced outside of Australia last December of the conviction.)  [Thanks to Steven H. Sholk for the lead.]

Egypt Will Build Synagogues For Any Resurgent Jewish Community

Jerusalem Post and JTA report that Egypt's President Abdel Fattah el-Sisi told a U.S. delegation last week that if a Jewish community is re-established in Egypt, the government will build synagogues and communal institutions for it. Sisi also promised to clean up the ancient Bassatine  Jewish Cemetery in Cairo.  The U.S. delegation was comprised of members of the Anwar Sadat Congressional Gold Medal Commission, which had obtained passage of a law to posthumously grant the late Egyptian President Anway Sadat the Congressional Gold Medal.  The delegation invited Sisi to attend the award ceremony this fall.  Earlier this month the United Arab Emirates formally recognized its small Jewish community.

European Court: Romania's Conviction of Dismissed Clergy For Conducting Services Violated Religious Protections

Law & Religion UK reports at length on the decision of the European Court of Human Rights  In Tothpal and Szabo v Romania, (ECHR, Feb. 19, 2019) (full text of opinion in French).  In the case, the Court held that Romania had violated Art. 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) when it convicted a Lutheran pastor and a Reformed Church minister of acting as clerics without authorization of their respective churches.  In each case, the clergyman had been dismissed from his position with his congregation, but continued to conduct religious services for some of the congregation members who disagreed with their dismissals.  The Court issued an English language press release summarizing the decision.

HHS Issues Final Rule Changes For Title X Family Planning Programs

In a 312-page release (full text) issued on Friday, the Department of Health and Human Services issued final rules revising regulation of its Title X family planning program. The new rules are scheduled to take effect 60 days after their publication in the Federal Register.  According to the release:

This rule ... will ensure compliance with, and enhance implementation of, the statutory requirement that none of the funds appropriated for Title X may be used in programs where abortion is a method of family planning, as well as related statutory requirements.....  The rule also clarifies that provision of family planning services under Title X may be available under the good reason exception at the discretion of the project director for women denied coverage for contraceptives if the sponsor of their health plan exercises a religious or moral exemption recognized by the Department.

The new rules, according to Politico:

could effectively cut off tens of millions of federal family planning dollars to Planned Parenthood and steer some of that funding towards anti-abortion, faith-based care providers....

It would ... bar Planned Parenthood and other health care providers that accept the funding from making any abortion referrals or performing abortions — regardless of the funding source — at the same facilities where they provide Title X services like birth control, mammograms and cancer screenings.

One of the rule changes eliminates the requirement that Title X programs provide abortion referral if requested.  The release says that this requirement conflicted with statutes protecting conscience in health care. [Thanks to Scott Mange for the lead.]

Recent Articles of Interest

From SSRN:

• Ronald J. Rychlak, Book Review: András Fejérdy, Editor, the Vatican “Ostpolitik” 1958–1978: Responsibility and Witness During John XXIII and Paul VI, (22 Catholic Social Science Review).
• Michael O. Leavitt, Shared Spaces and Brave Gambles, in Religious Freedom, (Chapter 33 in Religious Freedom, LGBT Rights and the Prospects for Common Ground (William N. Eskridge & Robin Fretwell Wilson, eds.), 2018).
• J. Stuart Adams, Cultivating Common Ground: Lessons from Utah for Living With Our Differences, (Chapter 32,Religious Freedom, LGBT Rights and the Prospects for Common Ground (William N. Eskridge & Robin Fretwell Wilson, eds., 2018).
• Elder Von G. Keetch, Toward Collaboration: A Perspective from The Church of Jesus Christ of Latter-day Saints, (Chapter 14 in Religious Freedom, LGBT Rights and the Prospects for Common Ground(William N. Eskridge & Robin Fretwell Wilson,eds. 2018).
• Adrienne Stone, Viewpoint Discrimination, Hate Speech Law and the Double-Sided Nature of Freedom of Speech, (Constitutional Commentary, Vol. 32, No. 3, 2017, 687-696).
• Tarunabh Khaitan, The Point of Discrimination Law, (The Empire of Disgust: Prejudice, Discrimination, and Policy in India and the US (Martha Nussbaum, Zoya Hasan, Aziz Huq, Vidhu Verma eds, OUP 2018)).

Pope Francis Addresses Bishops' Summit On Protection of Minors

New York Times reports today:

Pope Francis ended a landmark Vatican meeting on clerical sexual abuse with an appeal “for an all-out battle against the abuse of minors,” which he compared to human sacrifice, but his speech did not offer concrete policy remedies demanded by many of the faithful.

Zenit has both extensive excerpts and the full text of the Pope's remarks ending the Summit on the Protection of Minors in the Church, Feb. 21-24, 2019 attended by some 190 bishops.

Recent Prisoner Free Exercise Cases

In Maye v. Klee, (6th Cir., Feb. 14, 2019), the 6th Circuit denied qualified immunity to prison officials who refused to allow Nation of Islam members participate in the prison's Eid al-Fitr celebration.

In Whitney v. Furgerson, 2019 U.S. Dist. LEXIS 21818 (MD PA, Feb. 8, 2019), a Pennsylvania federal magistrate judge recommended that an inmate's complaint that he was not allowed to purchase or carry beads or cowry shells should be dismissed without prejudice for improper joinder with other claims and of defendants.

In Hall v. Hamilton, 2019 U.S. Dist. LEXIS 22238 (WD NC, Feb. 11, 2019), a North Carolina federal district court allowed a Muslim inmate to move ahead with his complaint that inmates are required to go to the showers only in boxers while his religion requires him to be clad from waist to ankles.

In Rodriguez v. Dzurenda, 2019 U.S. Dist. LEXIS 23164 (D NV, Feb. 13, 2019), a Nevada federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 221326, Dec. 17, 2018) and refused to issue a preliminary injunction to require prison authorities to formally recognize Satanism and allow practice of the faith.

In Collins v. Brockbridge Correctional Facility, 2019 U.S. Dist. LEXIS 23207 (D MD, Feb. 12, 2019), a Maryland federal district court dismissed for failure to exhaust administrative remedies an inmate's claim that strip searches violated his religious freedom rights.

In Shields v. Khan, 2019 U.S. Dist. LEXIS 23761 (SD CA, Feb. 13, 2019), a California federal magistrate judge recommended that a Muslim inmate be allowed to move ahead with his complaint that his name was removed from the Ramadan list.

In Tatum v. Lucas, 2019 U.S. Dist. LEXIS 25020 (ED WI, Feb. 15, 2019), a Wisconsin federal district court dismissed a Nation of Islam inmate's complaint that he did not receive a meatless diet and that correctional officers mocked his religious beliefs.

Christian School May Use Oregon's Religious Exemption To Reject Jewish Faculty Applicant

In King v. Warner Pacific College, (OR App, Feb. 21, 2019), an Oregon state appellate court held that a Christian college's refusal to hire a Jewish applicant for a position as adjunct professor of psychology falls within the religious preference exemption to Oregon's non-discrimination law.  ORS 659A.006(4)provides:

It is not an unlawful employment practice for a bona fide ... religious institution, including ... a school... to prefer an employee, or an applicant for employment, of one religious sect or persuasion over another if:  (a) The religious sect or persuasion to which the employee or applicant belongs is the same as that of the ... institution; ... [and]  (c) The employment involved is closely connected with or related to the primary purposes of the ... institution....

The court held that the exemption allows the school to reject a non-Christian applicant and await a later hiring cycle to fill the position, or to assign the work to an existing Christian employee.  A majority of the judges also held that this particular faculty position met the requirement of being closely connected to the school's religious purpose.

Federal District Court Rejects Satanic Temple Follower's Challenge to Missouri Abortion Restrictions

In Doe v. Parson, (ED MO, Feb. 21, 2019), a Missouri federal district court rejected both Establishment Clause and free exercise challenges to Missouri's abortion law.  The suit, filed by a member of the Satanic Temple, challenges the requirement that health care providers furnish women seeking an abortion in Missouri a state-prepared booklet that states, in part, that life begins at conception.  The woman must also be given an opportunity to view an active ultrasound, must sign a certification that she has received the booklet and ultrasound opportunity, and must wait 72 hours before the procedure can be performed.  The court held that

Even though [statements in the booklet] are harmonious with some religious beliefs, they are a permissible expression of the State’s secular interest in protecting the unborn.

The court went on to reject plaintiff's free exercise claim, holding that the Missouri requirements are neutral laws of general applicability.  Earlier this month, the Missouri Supreme Court rejected a similar challenge to Missouri's requirements. (See prior posting.)

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.