Cert. Filed In Montana Scholarship Tax Credit Challenge

A petition for certiorari (full text) was filed with the U.S. Supreme Court on March 12 in Espinoza v. Montana Department of Revenue.  In the case the Montana Supreme Court held that Montana's tax credit program for contributions to student scholarship organizations is unconstitutional under Montana Constitution Art. X, Sec, 6 which prohibits state aid to sectarian schools. (See prior posting.)  The petition for review asks the U.S. Supreme Court to decide whether it violates the 1st or 14th Amendments for a state court to invalidate a generally available and religiously neutral student-aid program because the program includes students attending religious schools.  Institute for Justice issued a press release announcing the filing of the cert. petition.

DOD Issues Memo Implementing New Policy on Transgender Service In Military

On March 12, the Department of Defense issued Memorandum (DTM)-19-004 - Military Service by Transgender Persons and Persons with Gender Dysphoria  implementing the military's new policy limiting service in the military by transgender persons.  The new policy is effective April 12, 2019.  While there are special transition provisions for individuals who have enlisted before the effective date of the new policy, for future recruits, the following policy applies:

(1) A history or diagnosis of gender dysphoria is disqualifying unless:

(a) As certified by a licensed mental health provider, the applicant demonstrates 36 consecutive months of stability in the applicant’s biological sex immediately preceding submission of the application without clinically significant distress or impairment in social, occupational, or other important areas of functioning; and

(b) The applicant demonstrates that the applicant has not transitioned to his or her preferred gender and a licensed medical provider has determined that gender transition is not medically necessary to protect the health of the individual; and

(c) The applicant is willing and able to adhere to all applicable standards, including the standards associated with the applicant’s biological sex.

(2) A history of cross-sex hormone therapy or a history of sex reassignment or genital reconstruction surgery is disqualifying.

The DOD has created a special website explaining in clear language and diagrams the new policy. Washington Post reports on the new policy.

Cardinal Pell Sentenced By Australian Court To 6 Years In Prison On Sex Abuse Charges

As previously reported, last December a court in Australia convicted Catholic Cardinal George Pell on five counts of child sexual offenses dating back decades. As reported by CNN, yesterday the 77-year old Cardinal who was a top Vatican advisor was sentenced by the court to six years in prison.

6th Circuit En Banc Upholds Planned Parenthood Funding Cut-Off

In Planned Parenthood of Greater Ohio v. Hodges, (6th Cir., March 12, 2019), the U.S. 6th Circuit Court of Appeals, sitting en banc, by a vote of 11-6 upheld an Ohio law which cuts off state funding for Planned Parenthood. At issue was the cut-off of funding for two Planned Parenthood health centers because they are affiliated with an "entity that performs or promotes nontherapeutic abortions." The majority explained, in part:

As the district court saw it, the Ohio law imposes two unconstitutional conditions on Planned Parenthood. It denies the organization funding if it continues to perform abortions— what the court perceived to be a due process violation. And the law denies the organization funding if it continues to promote abortion—what the court perceived to be a free speech violation. To prevail, Planned Parenthood must show that both limitations—the conduct and speech requirements—violate the U.S. Constitution. Ohio may deny funding to Planned Parenthood in other words if either limitation satisfies the Constitution. Because the conduct component of the Ohio law does not impose an unconstitutional condition in violation of due process, we need not reach the free speech claim.

Judge White's dissent (joined by 5 others) argued:

The majority avoids this straightforward application of the unconstitutional-conditions doctrine primarily by adopting an unprecedented rule that abortion providers—entities that are necessary to ensure a woman’s right to safe abortions—cannot prevail in challenging the Statute. An abortion provider’s constitutional right may be derivative of the patient’s right—but it is a right nonetheless.

Politico reports on the decision. [Thanks to Tom Rutledge for the lead.]

False Light Invasion of Privacy Suit By Pastor Is Dismissed

In Byrd v. DeVeaux, (D MD, March 4, 2019), a Maryland federal district court dismissed on ecclesiastical abstention and ministerial exception grounds a false light invasion of privacy suit brought by Alicia Byrd, a pastor at an African Methodist Episcopal Church. Byrd sought over $14 million in damages for a report issued by the parent AME Church's Ministerial Efficiency Committee saying that she collateralized church property to build a non-profit facility without proper approval and for a letter alleging that she co-mingled church funds.  The court said in part:

Some of the independent  statements Plaintiff relies on are obviously fused with concepts of church law, polity, or doctrine, while others appear secular.... As a whole, the reports and letter constitute a matter of internal church discipline, and the statements contained within the documents are incapable of extrapolation from the overall ecclesiastical nature of the documents. Thus, Plaintiff's false light claim is barred by the ecclesiastical abstention doctrine....

Here, Plaintiff's claim is rooted in the MEC's disciplinary review of Plaintiff and decision that Plaintiff should be placed on administrative leave.... [T]he ministerial exception would apply to Plaintiff's false light claim and would provide an additional reason to grant summary judgment to Defendants.

DOE Will Not Enforce Ban On Religious Organizations As Contractors For "Equitable Services" Under Federal Grants

The Elementary and Secondary Education Act requires local educational agencies to include private schools in their federally funded programs to provide supplemental educational services to provide equitable, high-quality education for students from low-income families. School districts may contract with outside providers for various educational services, however under ESSA, the provider must be independent of any religious organization.  In a press release yesterday, the U.S. Department of Education announced that this restriction would no longer be enforced, saying in part:

The U.S. Department of Education, in consultation with the U.S. Department of Justice, determined the statutory provisions in Section 1117(d)(2)(B) and 8501(d)(2)(B) of the Elementary and Secondary Education Act (ESEA) that require an equitable services provider to “be independent of … any religious organization” are unconstitutional because they categorically exclude religious organizations based solely on their religious identity.

These provisions run counter to the U.S. Supreme Court decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) that, under the Free Exercise Clause of the First Amendment of the U.S. Constitution, otherwise eligible recipients cannot be disqualified from a public benefit solely because of their religious character.

The Department will, however, continue to enforce the statutory requirement that the outside services being provided are "secular, neutral and non-ideological."

Cert. Filed In Universal Church Trademark Case

A petition for certiorari was filed on March 4 in Universal Church, Inc. v. Toellner. (Full text of petition at 2019 U.S. S. Ct. Briefs LEXIS 831). In the case, the U.S. Second Circuit Court of Appeals rejected a claim that the Universal Life Church had infringed the trademark of the Universal Church.  In Universal Church, Inc. v. Toellner, (2d Cir. Nov. 2, 2018), the court held that the term  "Universal Church" is generic in referring to religious counseling and evangelistic and ministerial services.

Suit Challenges Vaccination Order

The Rockland Westchester Journal News reports that a federal court lawsuit has been filed by parents of 44 students who attend Green Meadow Waldorf School in Chestnut Ridge, New York challenging the Rockland County Health Commissioner's order excluding unvaccinated children from schools. According to the paper:

The lawsuit states that Commissioner Dr. Patricia Schnabel Ruppert's order, imposed during the county's continuing measles outbreak, violates the families' religious objections to vaccinations and is unnecessary because the cases have been largely confined to insular Hasidic Jewish communities.

UPDATE: On March 12, a federal judge denied a temporary injunction that would have allowed the 44 students to return to classes. (Rockland Westchester Journal News).

Recent Articles and Books of Interest

From SSRN:

• Pauline Ridge, Not-for-Profit Law and Freedom of Religion, (Matthew Harding (ed), Research Handbook on Not-for-Profit Law (Edward Elgar, Cheltenham, 2018) 284-303).
• Avishalom Westreich, Present-Day Posthumous Reproduction and Traditional Levirate Marriage: Two Types of Interactions, (Journal of Law and the Biosciences, Forthcoming).
• Howard Kislowicz, Religious Communications Privilege, (Forthcoming, Perspectives on Evidential Privileges, Dr. Christopher D.L. Hunt, ed (Toronto: Thomson Reuters, 2019)).
• Nathan B. Oman, 'We, The People of the Kingdom of God': Constitution Writing in the Council of Fifty, (The Council of Fifty: What the Records Reveal About Mormon History 55-72 (Matthew J. Grow & R. Eric Smith, eds. (2017)).
• Eric Heinze, No-Platforming and Safe Spaces: Should Universities Censor More (Or Less) Speech than the Law Requires?, (Croatian Political Science Review (December, 2018)).
• Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade's Whiplash, (Texas Law Review, Forthcoming).
• Eric Heinze, Review of: Alex Brown, Hate Speech Law: A Philosophical Examination, (International Dialogue, A Multidisciplinary Journal of World Affairs (2018)).
• Ihsan Yilmaz, Erdoğan’s Political Islamist Narrative and Radicalization of the Turkish Muslim Diaspora, (November 18, 2018).
• Nathan J. Brown, Who or What Is the Wali al-Amr: The Unposed Question, (Oñati Socio-Legal Series, Forthcoming).

Recent Books:

• Ellis M. West, The Free Exercise of Religion in America: Its Original Constitutional Meaning, (Palgrave Macmillan, 2019).
•  Anver M. Emon and Rumee Ahmed, eds., The Oxford Handbook of Islamic Law, (Oxford Univ. Press, Jan. 2019).
• Duncan Ryūken Williams, American Sutra: A Story of Faith and Freedom in the Second World War, (Harvard Univ. Press, Feb. 2019).

Suit Challenges Washington State's Required Abortion Coverage

Last week, a church in Washington state filed suit in federal district court challenging the constitutionality of Washington Senate Bill 6219 signed into law last March which requires all health care plans in the state to cover contraceptives and sterilization, and to cover abortion to the same extent as they cover maternity care.  The complaint (full text) in Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, filed 3/8/2019), alleges in part:

52. ... [T]his law targets organizations that have religious and moral beliefs against abortion. Washington State has a history of targeting religious and moral pro-life organizations and individuals.

53. The strong statutory language, lack of any church exception, and anticipated evidence that pro-abortion groups assisted in drafting and enacting SB 6219, indicates that Washington and its officials deliberately targeted religious organizations and intentionally violated those organizations’ religious beliefs.

The suit alleges violations of the Free Exercise, Equal Protection and Establishment Clauses. ADF issued a press release announcing the filing of the lawsuit.

Recent Prisoner Free Exercise Cases

In Hill v. Palmer, 2019 U.S. Dist. LEXIS 30851 (WD NC, Feb. 26, 2019), a North Carolina federal district court dismissed an inmate's complaint that he was denied daily devotionals and religious materials from various ministries.

In Miller v. Acosta, 2019 U.S. Dist. LEXIS 30547 (CD CA, Feb. 26, 2019), a California federal magistrate judge dismissed with leave to amend a Wiccan inmate's complaint regarding his removal from the religious meal program.

In Whitely v. CDCR, 2019 U.S. Dist. LEXIS 30672 (ED CA, Feb. 25, 2019), a California federal magistrate judge recommended dismissing a suit by a Muslim inmate alleging denial of access to Islamic services and delay of religious services.

In Parson v. Pierce, 2019 U.S. Dist. LEXIS 31757 (D DE, Feb. 28, 2019), a Delaware federal district court dismissed Muslim inmates' complaints about the ban on possessing razors and inadequate Ramadan diets. Other claims were dismissed for failure to exhaust administrative remedies.

In Blast v. Fischer, 2019 U.S. Dist. LEXIS 32336 (WD NY, Feb. 28, 2019), a New York federal magistrate judge denied a motion for civil contempt brought by an inmate who practices Santeria alleging loss of religious property for which she had a religious permit by reason of a prior court order.

In Townsend v. Georgia, 2019 U.S. Dist. LEXIS 33080 (SD GA, March 1, 2019), a Georgia federal district court agreed with a magistrate's recommendation (2019 U.S. Dist. LEXIS 33205, Feb. 11, 2019) and dismissed as frivolous an inmate's incoherent complaint that, invoking "sovereign citizen" theory, argued that his religious rights as a Rastafarian have been violated.

Churches' Challenge To Required Abortion Health Care Coverage Rejected

In Foothill Church v. Rouillard, (ED CA, March 7, 2019). a California federal district court dismissed a suit brought by three churches challenging a ruling by the California Department of Managed Health Care that requires health insurance companies to include coverage for abortion services in all health insurance policies.  Rejecting the churches' Free Exercise claim, the court held that the churches have not alleged sufficient facts to call into question the defense that the ruling is a neutral law of general applicability. It also rejected the churches' equal protection claim saying that there was no showing that the state acted with the intent to adversely affect plaintiffs' religious beliefs.

Ministerial Exception Defense Rejected In Suit To Apply Labor Code To Preschool Teachers

In Su v. Stephen S. Wise Temple, (CA App., March 8, 2019), a California state appellate court held that teachers in a Reform Jewish Temple's preschool are not covered by the ministerial exception rule.  In the case, California's Labor Commissioner sued on behalf of 40 teachers alleging that the school violated the state's Labor Code by failing to provide rest breaks, uninterrupted meal breaks, and overtime pay.In rejecting the Temple's ministerial exception defense, the majority said in part:

Although the Temple’s preschool curriculum has both secular and religious content, its teachers are not required to have any formal Jewish education, to be knowledgeable about Jewish belief and practice, or to adhere to the Temple’s theology.  Further, the Temple does not refer to its teachers as “ministers” or the equivalent, nor do the teachers refer to themselves as such. Accordingly, we conclude the teachers are not “ministers” for purposes of the ministerial exception.

Presiding Judge Edmon filed a concurring opinion contending that the court need not reach the question of whether the teachers held "ministerial" positions, saying in part:

I would conclude that the Temple has not demonstrated that the ministerial exception has any application to the present dispute, which does not touch on the Temple’s freedom to choose its ministers or to practice its beliefs....

[T]he constitutional imperative against encroaching on a church’s selection of its ministers does not, as a logical matter, suggest that churches must be exempted from all laws that would regulate the employment relationship between a religious institution and its ministers. Given the number and variety of federal and state employment laws, it stands to reason that some laws will impose a greater burden on religious interests than will others. Accordingly, courts can, without doctrinal inconsistency, exempt churches from the application of some employment laws without exempting churches from all such laws.

French Cardinal Convicted of Covering Up Child Abuse Reports

In France on Thursday, Cardinal Philippe Barbarin, the Archbishop of Lyon, was convicted of failing to report child abuse to authorities.  As reported by the New York Times, in 2014 and 2015 parishioners told the Archbishop of abuse of dozens of Boy Scouts that took place in the late 1980's and early 1990's by one of his priests, Rev. Bernard Preynat. The Archbishop was given a 6-month suspended sentence and fined 45,000 Euros (over $50,000 U.S.). Five other church officials and employees tried with Cardinal Barbarin were acquitted. (Full text of judgment in French).

Yeshivas Sue In Challenge To New York's "Substantial Equivalency" Guidelines

Yesterday, a group of yeshivas, parents and other Orthodox Jewish organizations filed a state-court lawsuit challenging the New York State Education Department's recently adopted Substantial Equivalency Review and Determination Process. The new regulations are aimed at assuring that yeshivas, as well as other non-public religious and independent schools, comply with state law requiring them to offer an education substantially equivalent to that of public schools.  (See prior posting.)  The 50-page complaint (full text) in Parents for Educational and Religious Liberty In Schools, (Sup. Ct. Albany Cty. NY, filed 3/7/2019), alleges in part:

the NYSED’s New Guidelines would effectively frustrate the Petitioners’ constitutionally protected right to the free exercise of religion through a series of onerous requirements; would effectively frustrate the Petitioners’ constitutionally protected free speech rights by dictating what can and cannot be taught in yeshivas; would effectively frustrate the Petitioners’ constitutionally protected due process right to control the upbringing and the education of their children, as recognized by Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923); and would hamper and inhibit the educational system that is central to Petitioners’ way of life, raising issues similar, and relevantly indistinguishable, to those addressed by the United States Supreme Court in Wisconsin v. Yoder, 406 U.S. 205 (1972).

The suit challenges the Guidelines on other state law grounds as well. Yeshiva World reports on the lawsuit.

A Few Iranian Christian Refugees Admitted To U.S.; Many Others Await Visas

NBC News reports that U.S. authorities have recently allowed about a dozen Armenian Christian refugees from Iran admission under the Lautenberg-Specter law that provides for visas for persecuted religious minorities from the former Soviet Union and Iran.  The refugees were admitted after a federal judge last July ordered the Department of Homeland Security to provide the reasons for denial of applications from 87 Iranian refugees waiting in Vienna for their visas to be processed. (See prior posting.) NBC reports in part:

Under Trump, the Lautenberg-Specter program has virtually ground to a halt for Iranians. The program includes what used to be a short processing stay in Vienna, but more than 70 Iranian applicants, mostly Christians, have been stuck in Austria for more than two years, their lawyers said. In the past, applicants would be granted U.S. visas after a period of few months in Austria, according to the lawyers and former U.S. officials.

Applicants in Ukraine and other former Soviet states have been admitted without major delays, humanitarian groups said....

 "The increased denial rate was not due to the president’s executive orders but to changes in vetting implemented in 2016," the [State Department] spokesperson said in an email, adding that new applications were still being accepted....

The number of Christian refugees admitted to the United States declined by about 36 percent in fiscal year 2018 compared to the previous year.... The drop is part of a broader decline in overall refugee admissions.

Utah Legislature Repeals Ban On Fornication

On Wednesday, the Utah state legislature gave final passage to S.B.43 (full text) and sent it to the governor for his signature. The bill, which enacts several amendments to the state's Criminal Code includes a repeal of Sec. 76-7-104, Utah's prohibition on fornication.  Fox 13 News reports on the legislature's action. [Thanks to Scott Mange for the lead.]

House Passes Resolution Condemning Anti-Semitism, Islamophobia and Other Bigotry

Yesterday, the U.S. House of Representatives by a vote of 407-23 passed House Resolution 183 (full text) condemning anti-Semitism, anti-Muslim discrimination and bigotry against other minorities as contrary to the values that define the people of the United States. New York Times reports on the complicated history of the 7-page resolution, saying in part:

It started as a resolution condemning anti-Semitism. Then, anti-Muslim bias was added in. After that came white supremacy. And by the end, it cited “African-Americans, Native Americans, and other people of color, Jews, Muslims, Hindus, Sikhs, immigrants and others” victimized by bigotry.

The resolution condemning “hateful expressions of intolerance,” which passed the House by an overwhelming 407-to-23 vote Thursday afternoon, was as much a statement of Democrats’ values as their factionalism. Caught in the middle was Speaker Nancy Pelosi, who worked for days to quell the internal uproar that erupted after a freshman Democrat, Representative Ilhan Omar of Minnesota, insinuated that backers of Israel exhibit dual loyalty....

Republicans mocked its all-inclusive approach....  Some veteran Jewish Democrats, who had pushed for a measure that would solely condemn anti-Semitism, were equally dismayed.

Challenge to Florida City's Conversion Therapy Ban May Move Forward

In Vazzo v. City of Tampa, (MD FL, March 5, 2019), a Florida federal district court adopted a magistrate's recommendations (Jan. 30, 2019) concluding that plaintiffs had stated plausible free speech challenges, but dismissed plaintiffs' free exercise challenges, to Tampa, Florida's ban on providing conversion therapy to minors.  The court allowed plaintiffs to move ahead with claims that the ordinance is content-based, amounts to viewpoint discrimination and a prior restraint, and that it is unconstitutionally vague and overbroad.  It also allowed plaintiffs to move ahead with claims that the ordinance violates the right of their minor clients and constituents to receive information.  Plaintiffs also stated a plausible implied pre-emption claim under state law.

Ilhan Omar's Anti-Semitic Tropes Focus Debate

Vox yesterday posted a lengthy analysis of the growing expressions of anti-Semitism in the United States in an article titled The Ilhan Omar Anti-Semitism Controversy, Explained, saying in part:

It’s true that Omar’s comments on Israel keep falling into well-worn anti-Semitic tropes — and her defenders often prove too willing to paper this over and dismiss criticism from even progressive Jews as “smears.”

It’s also the case that Republican officials frequently call on anti-Semitic tropes and say worse about other minority groups without nearly so much bipartisan condemnation. Pushing for a House vote on anti-Semitism really did feel like unfairly singling out Omar — and whitewashing the GOP’s record in the process. That’s why progressives rallied to Omar’s defense, and why the Democratic leadership has been forced to reconsider its initial resolution.

In short, the entire situation is a mess — and an example of how difficult it is for Democrats to carry on an important conversation about anti-Semitism on the left without downplaying the far more pressing problem of anti-Semitism on the right.

3rd Circuit Hears Oral Arguments In Fair Housing Act Challenge To Sex-Segregated Pool Hours

On Tuesday, the U.S. 3rd Circuit Court of Appeals heard oral arguments in Curto v. Country Place Condominium Association, Inc. (audio of full oral arguments). As reported by Courthouse News Service, at issue is whether a New Jersey condominium association's sex-segregated swimming pool hours, instituted to accommodate the condos' large Orthodox Jewish population, violate the federal Fair Housing Act.

Canadian Court Certifies Class In Sex Abuse Suit Against Jehovah's Witnesses

In Canada in a class action lawsuit against two Jehovah's Witness entities, a Quebec Superior Court has approved the certification of a class consisting of current or former Jehovah's Witnesses who allege they were sexually assaulted as minors in Quebec by either an elder of the religious group or a fellow member. As reported by CTV News, plaintiffs allege failure to protect and efforts to dissuade reporting to police authorities. A Jehovah's Witnesses spokesman said that the organization reports abuse allegations to authorities as required by the Youth Protection Act.

Convicted War Criminal Stripped of U.S. Naturalized Citizenship

In a press release issued yesterday, the Department of Justice announced that an Oregon federal district court last week revoked the naturalized U.S. citizenship of  Sammy Rasema Yetisen who had previously pleaded guilty in a Bosnian court to war crimes.  She returned to the United States after serving her five and a half year prison sentence in Bosnia.  According to DOJ:

Yetisen, 46, was part of an elite unit of the Army of the Republic of Bosnia and Herzegovina that attacked the village of Trusina in April 1993, in what is known as the Trusina massacre. The unit targeted Bosnian Croats who resided in the village because of their Christian religion and Croat ethnicity, killing 22 unarmed individuals including women and the elderly. Yetisen played a key role in the massacre, serving as part of a firing squad that lined up and executed six unarmed prisoners of war and civilians. Yetisen was admitted to the United States as a refugee before naturalizing in 2002. In her naturalization application, Yetisen indicated that she had never had any military service “in the United States or in any other place.”

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.