Recent Articles of Interest

From SSRN:

• Micah Schwartzman, Must Laws Be Motivated by Public Reason? (Public Reason and Courts (Silje Langvatn, et al. eds., Cambridge University Press, Forthcoming).
• Oana Horhogea, Law and Religion. The Mystical Link, (June 30, 2019).
• Cecile Laborde, Abortion, Marriage and Cognate Problems, (American Journal of Jurisprudence (July 2018)).
• Matthew Segal, America’s Conscience: The Rise of Civil Society Groups Under President Trump, (UCLA Law Review, Vol. 65, No. 6, 2018).
• Charles A. Sullivan, Making Too Much of Too Little?: Why 'Motivating Factor' Liability Did Not Revolutionize Title VII, (August 2, 2019).
• Eric Steven Smith, Exploiting the Charitable Contribution Deduction's Hypersalience, (Utah Law Review, Forthcoming).

From SSRN (Non-US Law):

• Leah Bornstein-Makovetsky, The Welfare of the Minor As a Fundamental Principle Guiding Guardianship and Custody Issues in Ottoman Jewish Society, (Forthcoming, International Journal of the Jurisprudence of the Family).
• Harlan Grant Cohen, The Primitive Lawyer Speaks!: Thoughts on the Concepts of International and Rabbinic Laws, (Villanova Law Review, Forthcoming).
• Avishalom Westreich, Surrogacy and Egg Donation in Israel: Legal Arrangements, Difficulties, and Challenges, (Fundamental Legal Problems of Surrogate Motherhood - Global Perspective (Piotr Mostowik, ed., Warsaw, 2019)).
• Sujit Choudhry, Postcolonial Proportionality: Johar, Transformative Constitutionalism and Same Sex Rights in India, (Philipp Dann, ed., The Global South and Comparative Constitutional Law (Oxford University Press, Forthcoming)).
• Ayesha Umar, Assessing Social Inclusion through Transgender Legal Reforms in Pakistan, (October 7, 2018).
• Erum Sattar, Property Rights for Landless Agricultural Workers and the Flexibility of Hanafi Land Law Jurisprudence: A Solution for Rural Displacement?, (August 1, 2019).

From SmartCILP:

• Michael Arthur Vacca, Education and Religious Freedom in the Toledo Guiding Principles: A Comparative Analysis Between the Holy See and the United States, 36 Arizona Journal of International & Comparative Law 111-132 (2019).
• Daniel Altaras, Separation of Synagogue and State in Israel, 36 Arizona Journal of International & Comparative Law 133-163 (2019).
• James D. Nelson, Corporate Disestablishment, 105 Virginia Law Review 595-654 (2019).
• Samuel W. Calhoun, Inappropriate for Establishment Clause Scrutiny: Reflections on Mary Nobles Hancock's Note. God Save the United States and this Honorable County Board of Commissioners: Lund, Bormuth, and the Fight Over Legislative Prayer, 76 Washington & Lee Law Review 485-508 (2019).

Court Rejects School's Transgender Bathroom Restrictions

In Grimm v. Gloucester County School Board, (ED VA, Aug. 9, 2019). a Virginia federal district court held that a school system violated Title IX and the equal protection clause of the 14th Amendment when it prevented a transgender male student from using rest rooms that correspond with his gender identity. The court rejected the school's argument that its policy is substantially related to protection of student privacy.  The court also issued a permanent injunction requiring the school to update the student's school records to reflect the male gender listed on the student's updated birth certificate. Washington Post reports on the decision.

Hajj Is Underway In Saudi Arabia

As reported by Time, in Saudi Arabia yesterday (Friday, Aug. 9) more than 2 million Muslims gathered at Mecca to begin the Hajj. The Conversation has a detailed explanation of each of the five days' rituals.

7th Circuit Clarifies Application of Ministerial Exception Doctrine

In Sterlinski v. Catholic Bishop of Chicago, (7th Cir., Aug.8, 2019), the U.S. 7th Circuit Court of Appeals in an opinion by Judge Easterbrook held employment discrimination allegations brought by an organist in a Catholic church must be dismissed under the "ministerial exception" doctrine.  In deciding the case, the court clarified the 7th Circuit's approach to determining when the ministerial exception doctrine will apply:

If the Roman Catholic Church believes that organ music is vital to its religious services, and that to advance its faith it needs the ability to select organists, who are we judges to disagree? Only by subjecting religious doctrine to discovery and, if necessary, jury trial, could the judiciary reject a church’s characterization of its own theology and internal organization. Yet it is precisely to avoid such judicial entanglement in, and second-guessing of, religious matters that the Justices established the rule of Hosanna-Tabor....

It is easy to see a potential problem with a completely hands-off approach. Suppose a church insists that everyone on its payroll, down to custodians and school-bus drivers, is a minister. That is not fanciful—it is what one religious group did assert in Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985)....

The answer lies in separating pretextual justifications from honest ones....  Once the defendant raises a justification for an adverse employment action, the plaintiff can attempt to show that it is pretextual. The defense bears the burden of articulating the justification, but the plaintiff bears the burden of showing that the justification is a pretext.

Near the end of his opinion, Judge Easterbrook adds an interesting tangential discussion of the history of music in the Catholic Church:

Even Hieronymus von Colloredo, the Prince-Archbishop of Salzburg who sacked Wolfgang Mozart, understood that music has a vital role in the Roman Catholic faith. After Colloredo decided that the mass, including its music, must not  exceed 45 minutes, Mozart asked for leave to travel. Colloredo refused and fired him.... Colloredo thought that lesser (and less demanding) musicians would suffice; he did not remove music from the mass. In 1782 he abolished instrumental music in church and severely limited accompanied music, but the organ remained. The rest of the world gained from Colloredo’s decisions, as Mozart moved to Vienna and went on to produce secular masterpieces such as the Marriage of Figaro and the Jupiter Symphony, as well as two glorious masses in which the music alone exceeds 45 minutes (the Mass in C minor, K. 427/417a, and the Requiem, K. 626).

3rd Circuit Upholds Cross On County Seal

In one of the first cases to rely on the U.S. Supreme Court's decision in June rejecting an Establishment Clause challenge to the 94-year old Bladensburg Cross, the U.S. 3rd Circuit Court of Appeals yesterday rejected a challenge to a Latin cross on the 75-year old official seal of Lehigh County, Pennsylvania. In Freedom From Religion Foundation, Inc. v. County of Lehigh, (3d Cir., Aug. 8, 2019), the 3rd Circuit said in part:

American Legion confirms that Lemon does not apply to “religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.”... Instead, informed by four considerations, the Court adopted “a strong presumption of constitutionality” for “established, religiously expressive monuments, symbols, and practices.”...

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

Seventh Day Adventist Tennis Players Sue Over Tournament Scheduling

Suit was filed this week in a Washington federal district court by two high school tennis players who are Seventh Day Adventists and were precluded from participating in state championship tournaments because matches were scheduled on their Sabbath (Friday night/ Saturday).  The complaint (full text) and motion for preliminary injunction (full text) in J.G.C. v. Washington Interscholastic Activities Association, (WD WA, filed 8/6/2019) allege that plaintiffs' free exercise and equal protection rights were infringed, and that the anti-discrimination provisions of Washington law and the Establishment Clause were violated in two respects.  Plaintiffs object to tournament scheduling that includes Friday evening/ Saturday games. They also object to tournament rules that require players participate in all events, except in case of injury, illness or unforeseen events.  Religious accommodation is not permitted. Becket issued a press release announcing the filing of the lawsuit.

Religious Activist Fined For Burning Library's LGBTQ Children's Books

In Orange City, Iowa yesterday, religious activist Paul Robert Dorr was found guilty of criminal mischief and fined $125 for burning four children's books that he checked out of the public library. As reported by the Des Moines Register, the books had LGBTQ themes. Dorr posted a video to Facebook showing him throwing the books into a burning barrel after he denounced the Orange City library for having the books.

Israel's Election Laws Require Advertising Companies to Sell Space For Objectionable Ads

In Israel yesterday, the Central Elections Committee, the body within the Knesset that enforces election laws, ruled that two major advertising companies in Israel cannot refuse to sell advertising space to Noam-- a far-right religious conservative party known for its opposition to gay rights.  As reported by the Times of Israel, the advertising companies-- which control large amounts of the billboard and bus advertising space-- objected to ads targeting gays and Reform Jews.  The ads read:

[Gay] pride and the buying of children, or having my son marry a woman – Israel chooses to be normal.

Reform [Judaism] or my grandson remains Jewish – Israel chooses to be normal.

Israel's 1959 Election Law (Publicizing Methods) prohibit companies selling election advertising from discriminating between political parties in any way. The Elections Committee's decision was handed down by Supreme Court Justice Neal Hendel.

Suit Charges Mormon Church With Intentional Misrepresentation of Its History

A former member of the Mormon Church filed suit this week in a Utah federal district court accusing the "Mormon Corporate Empire" of fraud, breach of fiduciary duty, RICO violations and intentional infliction of emotional distress. The 75-page complaint (full text) in Gaddy v. Corporation of the President of the
Church of Jesus Christ of Latter-day Saints, (D UT, filed 8/5/2019), asks for certification as a class action and contends:

2. This is not a claim for propagating false religious beliefs as part of the Mormon Church. Rather, it is a claim that the material facts upon which Mormonism is based have been manipulated through intentional concealment, misrepresentation, distortion and or obfuscation by the COP to contrive an inducement to faith in Mormonism’s core beliefs.

3. For almost 200 years, the COP, through its agent leaders, has represented Mormonism to be the restoration of the gospel of Jesus Christ, claiming that the divine authority essential to that gospel (Melchizedek and Aaronic priesthoods) was taken from the Earth after Christ’s crucifixion. It was purportedly restored hundreds of years later to Joseph Smith, Jr....

4. When the true facts are substituted for the longstanding false orthodox narrative, the story that emerges has shocked devoted Mormons who have made life-altering decisions based upon a scheme of lies.

Courthouse News Service reports on the filing of the lawsuit.

Factional Dispute In Church Dismissed

In In re Torres, (TX App., July 30, 2019), a Texas appellate court ordered dismissal of a suit between two factions of a church known as Templo Bautista.  According to the court:

Ramirez and Herrera complain about the removal of a pastor, his replacement by another, the manner in which that was done, whether it complied with the church procedures, the removal of parishioners as church members, and the way Torres and those aligned with him came to govern their church.

The court held that these "are controversies insulated from judicial interference under the neutral principles methodology. Thus, the trial court lacked subject-matter jurisdiction to address or regulate them."

State Has Compelling Interest In Licensing of Medical and Naturopathy Practice

In Jimenez v. Washington State Department of Health, (WA App., Aug. 5, 2019), a Washington state appellate court affirmed a finding by the health department that a marriage and family therapist engaged in the unlicensed practice of medicine and naturopathy. The court rejected Arely Jiminez's claim that the health department violated her free exercise rights protected by the U.S. and Washington state constitutions.  The court said in art:

Here, even assuming that the Department’s actions have infringed on Jimenez’s right to freedom of religion, the Department has a compelling public health and welfare interest in limiting the practice of medicine and naturopathy to individuals licensed by the Department. To the extent that Jimenez’s practice of Medicine without a Washington license burdened her exercise of religion, the Department’s interest in public health and safety justified any infringement of her constitutional rights.

11th Circuit: Board of Immigration Appeals Failed to Consider Evidence of Ahmadi Persecution In Pakistan

In Ali v. U.S. Attorney General, (11th Cir., Aug. 5, 2019), the U.S. 11th Circuit Court of Appeals vacated and remanded for further consideration a decision of the Board of Immigration Appeals (BIA) denying asylum, withholding of removal and Convention Against Torture claims by a Pakistani immigrant who practices Ahmadiyya Islam. The Appeals court concluded that the BIA ignored numerous de jure and de facto elements of harassment and abuse of Ahmadis that might lead to a conclusion of religious persecution.  The court said in part:

[T]he Board wields wide discretion on how to proceed on remand, and we today express no opinion on the merits. We simply hold that the Board’s decision, read alongside the record, considered alongside our religious persecution cases, is so puzzling that we cannot be sure the Board afforded Ali the consideration of his claims that the law requires. 

EEOC Wins Settlement For Jehovah's Witness Employee

In a July 31 press release, the EEOC announced that American Medical Response of Tennessee, Inc., a medical transportation service company, has settled a religious discrimination lawsuit filed against it by the EEOC. The company will pay $40,000 in damages for refusing to continue accommodating a Jehovah's Witness employee's request for Sundays off for worship.  The company also entered a 2-year consent decree requiring it to develop a religious accommodation policy and train its employees regarding Title VII.

European Court Says Russia Violated Rights of LGBT Organizations

Last month, in Zhdanov and Others v. Russia, (ECHR, July 16, 2019), the European Court of Human Rights in a Chamber Judgment held that Russia had violated Article 6 (access to courts), Article 11 (freedom of association) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights in refusing to register three organizations that promote LGBT rights.  Russia had denied registration on various grounds, including the contention that the organizations could destroy the moral values of society, decrease Russian population, jeopardize the institutions of family and marriage, and incite social or religious hatred. The Court issued a press release announcing the decision.

Challenge To Florida Abortion Waiting Period Law Remains In Play

In State of Florida v. Gainesville Woman Care, LLC, (FL App., Aug. 1, 2019), a Florida state appellate court refused to grant summary judgment in a facial challenge to Florida's 24-hour waiting period for abortions. Even though Florida's Supreme Court upheld a temporary injunction against the law's enforcement, the appeals court, in a 2-1 decision, concluded:

Since the temporary injunction phase of this case ... the State has built a case that raises genuine issues of material fact. Among the remaining unresolved issues is the parties’ dispute about the informed consent medical standard of care.

Judge Wolf dissented, saying in part:

Uniquely treating abortions differently from other medical procedures and failing to present evidence that the statute is the least restrictive means to accomplish the purported goals of section 390.0111(3) renders the law unconstitutional. Discouraging people from exercising a constitutionally protected right does not constitute a compelling state interest.

Miami Herald reports on the decision.

Recent Articles of Interest

From SSRN:

• James J. Friedberg, International Law, Settlements and the Two-State Solution, (WVU College of Law Research Paper, No. 2019-021 (2019)).
• Intisar A. Rabb, Conscience Claims in Islamic Law, (Religious Freedom, LGBT Rights, and the Prospects for Common Ground, 2019).
• Chai Feldblum, Religious Liberty and LGBTQI Rights: Finding the Right Balance-- Ruth Bader Ginsburg Lecture, (Thomas Jefferson Law Review, Vol. 41, No. 2, 2019).
• Mattheus Stephens, Connecting the Dots; What Feminists, Lesbians, Gays, and Bisexuals Should Learn From the Transgender and Intersex Communities About Challenging Gender and Sexual Orientation Discrimination, Thomas Jefferson Law Review, Vol. 41, No. 2, 2019.
• Michele Goodwin & Erwin Chemerinsky, The Transgender Military Ban: Preservation of Discrimination Through Transformation, (Northwestern University Law Review, Vol. 114, No. 3, 2019, Forthcoming).
• Michael J. Higdon, While They Waited: Pre- Obergefell Lives and the Law of Nonmarriage, (Yale Law Journal Forum, Vol. 129, p. 1, July 2019).
• Pamuela Halliwell, The Psychological & Emotional Effects of Discrimination Within the LGBTQ, Transgender, & Non-binary Communities, (Thomas Jefferson Law Review, Vol. 41, No. 2, 2019).
• Julie A. Greenberg, Beyond the Binary: Constitutional Challenges to Male/Female Sex Classification Systems, (Thomas Jefferson Law Review, Vol. 41, No. 2, 2019).
• Mark Austin Walters, Jennifer Paterson, Rupert Brown & Liz McDonnell, Hate Crimes Against Trans People: Assessing Emotions, Behaviors and Attitudes Towards Criminal Justice Agencies, (Journal of Interpersonal Violence, 2017).
• Mark Austin Walters & Alex Krasodomski-Jones, Patterns of Hate Crime: Who, What, When and Where?, (Project Report. DEMOS, 2018).
• Intisar A. Rabb, The Curious Case of Bughaybigha, 661–883: Land and Leadership in Early Islamic Societies, (Justice and Leadership in Early Islamic Courts, 2017).
• Ahmed Ahmed Elamer, Collins G. Ntim, Hussein Abdou & Chris Pyke, Sharia Supervisory Boards, Governance Structures and Operational Risk Disclosures: Evidence from Islamic Banks in MENA Countries, (Global Finance Journal, Forthcoming).
• Nafiseh Ghafournia & Patricia L. Easteal, Help-Seeking Experiences of Immigrant Domestic Violence Survivors in Australia: A Snapshot of Muslim Survivors, (Journal of Interpersonal Violence, 2019).

From SmartCILP:

• Bruce N. Cameron & Blaine L. Hutchison, Thinking Slow About Abercombie & Fitch: Straightening Out the Judicial Confusion in the Lower Courts, 46 Pepperdine Law Review 471-510 (2019).
• Barak D. Richman, Religious Freedom Through Market Freedom: The Sherman Act and the Marketplace for Religion, 60 William & Mary Law Review 1523-1543 (2019).

Preliminary Injunction Denied In Challenge To Conscience Provisions In Insurance Law

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, Aug. 2, 2019), a Washington federal district court denied a preliminary injunction against a group of Washington state provisions that plaintiff claims requires it to pay for abortifacient contraceptive coverage for individuals in its health insurance plan. At issue is an Attorney General's Opinion that says the insurance commissioner may require insurance companies to to include the cost of prescription contraceptives in the rate setting actuarial analysis where an employer raises a conscientious objection to paying these costs directly as a part of it benefit package. The court found that plaintiff lacks standing to assert the claim at this point because:

Cedar Park has not provided evidence that insurance costs are in fact calculated or charged in a manner to which it has a religious objection...

The court also dismissed on ripeness grounds, saying that plaintiff "cites no communications from or statements of the State which could form the basis of Cedar Park’s belief that it will be subject to enforcement..." The court however allowed plaintiff to file an amended complaint contending that it is treated less favorably than religious organizations which are health care providers, carriers, and facilities.

Australian Rugby Star Sues Over His Firing For Instagram Post

In April, star Australian Rugby player Israel Folau was fired for breaching the Professional Players' Code of Conduct which requires players to "to treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability". The firing follows Folau's posting on Instagram a banner reading: "Drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolators - Hell awaits you." (Background.) Now, according to BBC News, Folau has filed suit against Rugby Australia seeking $10 million in damages and reinstatement. He alleges that he is the victim of religious discrimination for expressing his Christian religious views.  It is expected that the case will set important precedent for the balance between religious freedom and the interest in banning hate speech in Australia.

Court in Burma Dismisses Blasphemy Suit Against U.S. Ambassador

Yesterday in Myanmar, a township court dismissed a lawsuit that had been filed against the U.S. Ambassador and two others, charging that a picture posted on Facebook defamed Buddhism. Irawaddy reports:

Nationalist monk U Parmaukha filed the lawsuit against US Ambassador Scott Marciel, the artist who painted the picture and the person who posted the picture on the official Facebook page of the US Embassy in Yangon. The image was of a painting done for an environmentally themed art exhibit the embassy hosted in July.

The US Embassy in Yangon on Friday promoted the “Insight Out Art Exhibition” of young artists on its Facebook page with a painting that depicts a silhouette of Buddha wearing a gas mask in the foreground while factories belching smoke are seen in the background.

Chapter XV of the Myanmar Penal Code outlaws various offenses against religious feelings.

Consulting Firm Challenges City's Ban On Discrimination Based on Political Belief

A suit was filed in a Michigan federal district court this week challenging the constitutionality of the Ann Arbor (MI) non-discrimination ordinance that, among other things, bars discrimination based on political belief. The complaint (full text) in ThinkRight Strategies, LLC v. City of Ann Arbor, (ED MI, filed 7/29/2019), alleges that plaintiffs are political conservatives whose political views are religiously motivated. Their consulting business develops websites and content for speeches, guides canvassing, promotes events and handles media relations. I will not, however, accept requests for service that involve promoting messages or policies contrary to their conservative or religious principles. The suit contends that Ann Arbor's ordinance bars this client selectivity in violation of plaintiffs' free speech rights and is unconstitutionally vague. ADF issued a press release announcing the filing of the lawsuit.

Myanmar Body Outlaws Ultra-nationalist Buddhist Organization

Radio Free Asia reports that in Myanmar (Burma), the 47-member government appointed council that regulates Buddhist clergy has declared the ultranationalist (and anti-Muslim) Buddha Dhamma Parahita Foundation (BDPF) to be illegal.  The Sangha Maha Nayaka (Mahana) declared the BDPF an illegal association and ordered the removal of all of its signage by Sept. 13.  The action was taken against BDPF after it publicly criticized the ruling National League for Democracy government.

Indian Parliament Outlaws Triple Talaq

India's Parliament yesterday gave final passage to The Muslim Women (Protection of Rights on Marriage) Bill, 2019 (full text) (bill summary). The bill now goes to the President for his assent. The new law outlaws "triple talaq", the procedure under which a Muslim husband divorces his wife by uttering the word "talaq" three times to her.  The law makes talaq (including in written and electronic form) illegal and provides for a fine and up to three years in prison for anyone declaring talaq. It also allows award of child custody and subsistence to a wife against whom talaq has been invoked. The bill replaces a presidential Ordinance issued earlier this year.  In 2017, India's Supreme Court held that triple talaq is invalid and ordered the government to consider appropriate legislation on the mater. (See prior posting.)  Rediff and Reuters report on the bill. [Thanks to Scott Mange for the lead.]

TRO Issued Against Arkansas Abortion Restrictions

In a 159-page opinion in Little Rock Family Planning Services v. Rutledge, (ED AR, July 23, 2019), and Arkansas federal district court granted a 14-day temporary restraining order against enforcement of recent Arkansas laws that severely restrict abortions.  The laws at issue ban abortions after 18 weeks of pregnancy, ban abortions when the reason is a pre-natal diagnosis of Down's Syndrome, and bans abortions being performed by anyone other than board-certified OB-GYN physicians. CNA reports on the decision.

Canadian Court Says West Bank Wines Cannot Be Labeled "Products of Israel"

In Kattenburg v. Attorney General of Canada, (Federal Ct. Canada, July 29, 2019), a judge of Canada's Federal Court held that labeling wine produced by wineries in the West Bank settlements of Shiloh and Psagot as "Products of Israel" is false, misleading and deceptive in violation of § 7(1) of Canada's Consumer Packaging and Labelling Act and § 5(1) of Canada's Food and Drugs Act. The court said in part:

Both parties and both interveners agree that, whatever the legal status of the settlements may be, the fact is that they are not within the territorial boundaries of the State of Israel.

The court added:

[S]ome individuals opposed to the creation of Israeli Settlements in the West Bank express their opposition to the settlements and their support for the Palestinian cause through their purchasing choices, boycotting products produced in the Settlements. In order to be able to express their political views in this manner, however, consumers need to have accurate information as to the origin of the products under consideration. Identifying Settlement Wines incorrectly as “Products of Israel” inhibits the ability of such individuals to express their political views through their purchasing choices, thereby limiting their Charter-protected right to freedom of expression.

The Globe and Mail reports on the decision.

New Report On Muslim Inmates In State Prisons In U.S.

In a press release last week, Muslim Advocates announced the release of a report documenting the size of the Muslim population in state prisons in the U.S. and the extent to which their religious rights are accommodated. The 68-page report (full text) titled Fulfilling the Promise of Free Exercise for All: Muslim Prisoner Accommodation in State Prisons concluded in part:

[O]ur research shows that within the 34 states that provided data in response to our requests, Muslims are overrepresented in state prisons by a factor of eight relative to the general population. In some state systems, Muslims are overrepresented by a factor of closer to eighteen, with more than 20 percent of prisoners identifying as Muslim. The absolute number of Muslim prisoners has also increased over time, even as prison populations in many states have tended to decrease in the last few years. Despite Muslims constituting a significant and growing share of prisoners, many state departments of correction still have policies that are outdated, under-accommodating, or non-accommodating of Muslim prisoners.

The Appeal discusses the report.

Court Refuses To Order Return of WWII Remains To Supposed Next-of-Kin

In Patterson v. Defense POW/ MIA Accounting Agency, (WD TX, July 29, 2019), a Texas federal district court refused to order return to plaintiffs of the remains of seven servicemen who were killed or perished as POW's in the Philippines in World War II.  The court explains:

The parties dispute the extent to which the remains are identified. Plaintiffs argue that they have a property interest in these remains and that Defendants’ retention of these remains impinges on Plaintiffs’ religious practices and Plaintiffs’ interest in securing proper burial.

The court rejected plaintiffs' due process, 4th Amendment, free exercise and RFRA claims to the remains at issue, saying in part:

They state “the facts alleged in the Amended Complaint show that the Government has placed a substantial burden on the Families’ exercise of religion.”... 

The record reveals nothing further about Plaintiffs’ religious beliefs or how Defendants have burdened them. Plaintiffs do not indicate the nature, substance, or contours of their beliefs, or even whether all Plaintiffs share the same religious beliefs. In the complaint, Plaintiffs allege that a “proper burial is essential for many practicing Christians,” but they produce no declarations or other evidence outlining these beliefs. Defendants thus contest whether Plaintiffs’ beliefs are sincerely held. 

The Court is inclined to grant summary judgment on the sincerity grounds ... given Plaintiffs’ total lack of evidence. Courts have cautioned, however, that “[t]hough the sincerity inquiry is important, it must be handled with a light touch.... 

In keeping with this tradition ... the Court assumes Plaintiffs show sincerely held beliefs and concludes alternatively that Plaintiffs do not show a substantial interference with these beliefs. As Defendants note, Plaintiffs allege only that their beliefs require a “proper burial,” but without any explanation of what makes a “proper burial in accordance with each respective family’s religious beliefs,” the Court cannot assess the alleged interference.... Thus, Plaintiffs do not meet their initial burden for either their RFRA or Free Exercise claims.

Medical Center's Retirement Plan Is A "Church Plan" Exempt From ERISA

In Boden v. St. Elizabeth Medical Center, Inc., (ED KY, July 25, 2019), a Kentucky federal district court held that the employee retirement plan of a Catholic-affiliated health care provider is exempt from ERISA as a "church plan."  The case was initially stayed pending the Supreme Court's 2017 decision in Advocate Health Care Network v. Stapleton. (See prior posting.)  The case then proceeded under an amended complaint.  The court here, among other things, rejected plaintiffs' contention that the Pension Plan Administrative Committee is not "organization" that "maintained" St. Elizabeth's retirement plan, as required by the statute defining a "church plan." [Thanks to Tom Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• Zainab Ramahi, Veiled Muslim Women: Challenging Patriarchy in the Legal System, (Berkeley Journal of Gender, Law & Justice, Vol. 33, 2018).
• Sumit Sonkar, From Shah Bano to Shayara Bano: Itinerary of Gender Equality of Muslim Woman in India, (Indian Bar Review, Vol.45 (1) 2018).
• Satang Nabaneh & A.S. Muula, Female Genital Mutilation/Cutting in Africa: A Complex Legal and Ethical Landscape, (International Journal of Gynecology and Obstetrics, 2019; 145: 253–257).
• Andrew M. Koppelman, LGBT Discrimination and the Subtractive Moves, (July 21, 2019).
• Ihsan Yilmaz, Muslims and Sacred Texts and Laws, (January 15, 2019).
• Jehanzaib Waqas, Financial Reforms for Social Development by Holy Prophet in Medinian Society (Peace and Blessings Be Upon Him) , (Pakistan Journal of Islamic Research, 2017 Special Issue).
• Edana Richardson, Responsible Finance Sukuk — Can They Bring Societal Value to a Value-Neutral Market?, ((2019) 14(3) Capital Markets Law Journal 394)).

From SmartCILP and elsewhere:

• Journal of Law & Religion, Vol. 34, Issue 1 (April 2019).
• Gordon T. Butler, John the Theologian: Toward Integrating Law and Religion, 14 Intercultural Human Rights Law Review 41-65 (2019).
• David F. Forte, The Faith and Morals of Justice Antonin Scalia, 14 Intercultural Human Rights Law Review 67-92 (2019).
• Marc-Tizoc Gonzalez, John Makdisi On the Intercultural Origins of the Common Law, 14 Intercultural Human Rights Law Review 167-191 (2019).
• Ali Rod Khadem, Why Should Law and Policy Makers Understand Extremist Beliefs? The Islamic State (ISIS) As a Case Study: Past, Present, and Future, 23 Lewis & Clark Law Review 101-203 (2019).
• Helen M. Alvare, A Perfect Storm: Religion, Sex and Administrative Law, 92 St. John's Law Review 697-753 (2018).

Nigerian Court Bars Shiite Group as Terrorists

Legit reported today that the Nigerian federal government has obtained a court order banning the Shiite group Islamic Movement in Nigeria on the ground that it is a terrorist group. A Federal High Court justice, Nkeonye Maha, issued the order and designated the activities of the Shiite movement in any part of Nigeria "as acts of terrorism and illegality".

Gay Couple Sue Over Citizenship of Child Born Through Surrogacy Abroad

A same-sex married couple has filed suit in a Georgia federal district court challenging the State Department's refusal to recognize their daughter as a U.S. citizen.  The complaint (full text) in Mize v. Pompeo, (MD GA, filed 7/23/2019), alleges that the due process and equal protection rights of James Mize and Jonathan Gregg were violated when the U.S. Embassy in Britain refused to issue a Consular Report of Birth Abroad and passport to their daughter who was born through assisted reproductive technology in Britain. It also contends that the State Department has misinterpreted the Immigration and Nationality Act (INA). The couple used the sperm of Mr. Gregg, an anonymous egg donor, and a surrogate who lives in Britain. Both fathers are U.S. citizens.  Mr. Gregg is a U.S. citizen by reason of birth in Britain to a U.S. citizen. He has lived in the U.S. less than five years. Mize and Gregg are listed as the only parents on the child's birth certificate.

Under Sec. 301 of the INA, a person born outside the United States to two married U.S. citizens is a U.S. citizen if at least one of the parents has resided in the U.S. at any time. However the State Department applies this provision only if the child has a biological relationship with both married parents. Otherwise it applies Sections 309 and 301(g) of the INA that govern when a child born out of wedlock is a citizen. In that case, the father must have lived in the U.S. for 5 years for the child to be a citizen.

The complaint alleges:

On information and belief, State Department officials are highly unlikely to ask different-sex parents who are identified as legal parents (e.g., on a child’s birth certificate) if their child is, in fact, biologically related to both legal parents. In contrast, same-sex parents will always trigger an investigation, and consular officials routinely ask same-sex parents for specific evidence of a biological tie and/or about the use of assisted reproductive technology.

CNN reports on the lawsuit.

Canadian Court Orders Reconsideration of Election Date That Conflicts With Jewish Holiday

In Aryeh-Bain v. Canada (Attorney General), (Canada Fed. Ct., July 23, 2019), a judge of Canada's Federal Court ordered Canada's Chief Electoral Officer to reconsider his decision that refused to reschedule the October 21 Canadian federal election that conflicts with the Jewish holiday of Shemini Atzeret.  According to the court:

If the election is held on Shemini Atzeret, Ms. Aryeh-Bain, who is a candidate for the Conservative Party in her riding, must refrain from voting and campaigning during that period. Similarly, Mr. Walfish and other Orthodox Jewish voters (estimated to be 75,000 nationwide) will be unable to vote on election day or otherwise be involved in the election on that day.

In addition to polling day being on Shemini Atzeret, two of the advanced polling days  conflict with either the Sabbath (October 12) or the festival of Sukkot (October 14), both of which are also Jewish holidays. The last day to obtain a special ballot (October 15) also falls on Sukkot.

The court held that administrative decision makers are required to balance rights under the Charter of Rights and Freedoms with statutory objectives when making administrative decisions. It went on:

The record does not indicate how or if the CEO “balanced” these considerations against the Charter values of Orthodox Jewish voters and candidates to ensure their rights to “meaningful participation” are respected.  The CEO’s efforts were focused on advance polling and special ballot options.  No consideration appears to have been given to recommending a date change.

Canadian Press reports on the decision.

Challenge To Attempted Search of Church Is Dismissed

In Aguilera v. City of Colorado Springs, (D CO, July 23, 2019), a Colorado federal district court dismissed a suit brought by plaintiff who leases two rooms to the Green Faith Ministry. The suit grew out of an attempt by city authorities to conduct an occupancy check of the building leased by the Ministry, apparently suspecting that it was a retail marijuana outlet. Authorities took photos of license plates, but never gained access to the building. The court held that plaintiff lacks standing to bring most of her claims:

Plaintiff complains that Defendants ... deterred others from entering the building... She alleges that Defendant Vargason attempted a warrantless entry of the Green Faith Ministry building.... She contends that the City of Colorado Springs is entangled financially with many Christian organizations and targeted Green Faith Ministry.... Plaintiff fails to allege how this conduct, directed to other individuals and to the Green Faith Ministry entity, harmed her.

The court went on to find a few actions that did impact plaintiff, including one of the defendants telling her "to Praise the Lord." The court concluded that this did not violate the Establishment Clause or plaintiff's free exercise rights.

County Sued Over Zoning Denial To Faith-Based Recovery Program

Suit was filed in a Georgia federal district court last week by a ministry offering a faith-based residential program for men recovering from addiction alleging discriminatory action by a county zoning board. the complaint (full text) in Vision Warriors Church, Inc. v. Cherokee County Board of Commissioners, (ND GA, filed 7/15/2019) alleges that the county's denial of zoning approval for operation of plaintiff's recovery program violates the federal Fair Housing Act, the ADA, RLUIPA and the 14th Amendment's Equal Protection clause. ACLJ issued a press release announcing the filing of the lawsuit.

Cert. Filed: Do Parents Have Due Process Rights In Emancipation of Teen?

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Calgaro v. St. Louis County. The petition frames the question presented as:

Whether parents’ Due Process Clause rights apply to local governments and medical providers ending parental rights, responsibilities or duties over their minor children’s welfare, educational, and medical care decisions without a court order of emancipation.

As described by the U.S. 8th Circuit Court of Appeals in its March 25, 2019 decision below (full text):

In May 2015, E.J.K. moved out of Calgaro’s home in St. Louis County, Minnesota. Calgaro never surrendered her parental rights, but E.J.K. obtained a letter from Mid-Minnesota Legal Aid describing E.J.K.’s father and Calgaro as “hav[ing] given up control and custody of their child.” The letter concluded that E.J.K. was therefore “legally emancipated under Minnesota law.”... Based on E.J.K.’s claims of emancipation, St. Louis County provided E.J.K. with funding for medical services and other living expenses, and E.J.K. obtained gender transition care from Park Nicollet Health Services.

Thomas More Society issued a press release announcing the filing of the petition for review.

6th Circuit: Street Near Planned Parenthood Clinic Is Traditional Public Forum

In Brindley v. City of Memphis, (6th Cir., July 24, 2019), the U.S. 6th Circuit Court of Appeals held that a street adjacent to a Planned Parenthood clinic is a traditional public forum even though the street was originally privately owned.  The court said it is enough that the street looks and functions like a public street. Also the street was dedicated as a public right of way. Thus the court reversed and remanded a district court's denial of a preliminary injunction to a pro-life activist who wanted access to the street. [Thanks to Tom Rutledge for the lead.]

Judge Urges Plaintiffs To File New Religious Discrimination Suit

In TAL Properties of Pomona, LLC v. Village of Pomona, (SD NY, July 22, 2019), a New York federal district court refused to vacate its earlier judgment and reopen a religious discrimination case brought by a Jewish building developer against a New York village. Plaintiffs argued that a subsequent New York State Division of Human Rights report revealed new evidence of discrimination against Orthodox Jewish residents of the village.  The court, while ruling against plaintiffs, said:

Defendants should take little comfort in this outcome. The allegations presented on this motion, if even half true, are disturbing. I am obliged to stay within the confines of Rule 60(b), which in my judgment does not allow for this lawsuit to be reopened, but should Plaintiffs commence a new lawsuit, they may well be able to state a claim. And I do not see how Defendants will “suffer immense prejudice,” ... if they have to defend themselves on the merits. They may well be able to do so; I have no opinion as to the what the outcome of such a case would be, nor could I at this stage. But should Plaintiffs find it in their interest to pursue a case, airing the allegations and getting to the truth would hardly be a bad thing.

Copyright Infringement Counterclaims Not Dismissed

In Holy Spirit Association for the Unification of World Christianity v. World Peace & Unification Sanctuary, Inc., (MD PA, July 22, 2019), a Pennsylvania federal district court refused to dismiss counterclaims or strike defenses in a copyright infringement suit between two religious organizations.  At issue is the "Twelve Gates" mark which defendant claims is not a valid trademark, and the Tongil symbol which defendant claims is available to be used by all followers of Rev. Sun Myung Moon.

11th Circuit: Inmate's Complaint About Halal-Compliant Food Can Move Ahead

In Robbins v. Robertson, (11th Cir., July 23, 2019), the U.S. 11th Circuit Court of Appeals held that a Muslim inmate's 1st Amendment claim regarding the adequacy of his religious diet should not be dismissed, saying in part:

Plaintiff also made some non-conclusory allegations that plausibly supported his claim that the Islamic-compliant vegan meals were so nutritionally deficient that he was forced to choose between abandoning his religious precepts (by eating religiously non-compliant food that was nutritionally adequate) or suffering serious health consequences (by eating nutritionally inadequate food that was religiously compliant).

Cert Filed In Challenge To Exclusion of Foster Care Agencies That Reject Same-Sex Couples

A petition for certiorari (full text) was filed this week in Fulton v. City of Philadelphia, (cert. filed 7/22/2019).  In the case, the U.S. 3rd Circuit Court of Appeals upheld against 1st Amendment challenges the City of Philadelphia's policy of refusing to contract with foster care agencies, such as Catholic Social Services, that will not place children with same-sex married couples. (See prior posting.)  Becket issued a press release announcing the filing of the petition.

Settlement Reached In Christian School's Zoning Fight

A settlement has been reached in Englewood Church of the Nazarene, Inc. v. Sarasota County, Florida. The suit filed in a Florida federal district court in March alleged violations of RLUIPA, the 1st and 14th Amendments and Florida's Religious Freedom Restoration Act. After the school had been operating in a church's building for more than three years, the county demanded that it seek a special exception to continue its operation and levied daily fines on the school. The school spent $10,000 to complete the application, only to have the special exception denied. (See prior posting.)  According to a press release from ADF, in settling the case the county has approved the church's use of its property. A joint stipulation of dismissal (full text) was filed in Florida federal district court on July 22.

DOJ Summit On Combating Anti-Semitism Held Last Week

Last Monday, the Department of Justice held a Summit on Combating Antisemitism.  Deputy Attorney General Jeffrey A. Rosen delivered Introductory Remarks (full text) and Attorney General William Barr delivered the keynote speech opening the Summit (full text). He said in part:

The first panel will focus on combatting anti-Semitism while respecting the First Amendment. Hate-crime and civil-rights prosecutions are important tools but they cannot solve the problem on their own. Hearts and minds must be changed, but that is not always a task to which the government is particularly well-suited. We have a legal obligation to respect the free speech rights of even despicable speakers and our harshest critics. But lines can be drawn by our society, sometimes easily and sometimes not so easily, between that commitment and repudiation of anti-Semitism.

Another panel will focus on the problem of anti-Semitism on campus. On college campuses today, Jewish students who support Israel are frequently targeted for harassment, Jewish student organizations are marginalized, and progressive Jewish students are told they must denounce their beliefs and their heritage in order be part of "intersectional" causes. We must ensure – for the future of our country and our society – that college campuses remain open to ideological diversity and respectful of people of all faiths.

The DOJ website contains photos of the Summit. JTA reports on additional speakers at the Summit.

Recent Articles of Interest

From SSRN:

• William E. Thro, Embracing Constitutionalism: The Court and the Future of Higher Education Law, (University of Daytona Law Review, Vol. 44, No. 147, 2019).
• Richard W. Garnett, Religious Freedom and the Churches: Contemporary Challenges in the United States Today, (Studies in Christian Ethics, Vol. 32, Issue 4 (2019)).
• Stephen Mark Bainbridge, Bob Cochran on Law and Lawyering: A Catholic Perspective , (UCLA School of Law, Public Law Research Paper No. 19-21 (2019)).
• Stephen Mark Bainbridge, Enhanced Accountability: The Catholic Church’s Unfinished Business, (53 University of San Francisco Law Review 165 (2019)).
• Allen R. Kamp, Right Rights, (January 29, 2019).
• Erik Baldwin, et. al., The Burqa Ban: Legal Precursors for Denmark, American Experiences and Experiments, and Philosophical and Critical Examinations,(International Studies Journal, vol. 15, no. 1, Summer 2018).
• Laura T. Kessler, Reynolds v. United States, Rewritten, (July 18, 2019).
• John Witte, 'John Calvin,' (in Olivier Descampes and Rafael Domingo, eds., Great Christian Jurists in French History (Cambridge University Press, 2019), 117-33).
• John Witte, Church, State, and Sex Crimes: What Place for Traditional Sexual Morality in Modern Liberal Societies?, (Emory Law Journal 68 (2019): 837-865).

Court Expands Injunction On Prayer At High School Graduations

In American Humanist Association v. Greenville County School District, (D SC, July 18, 2019), a South Carolina federal district court expanded its May 2015 order relating to prayer at high school graduation ceremonies in a South Carolina school district. It issued a permanent injunction that includes the following provisions:

(1) The district shall not include a prayer ... as part of the official program for a graduation ceremony. The district also shall not include an obviously religious piece of music as part of the official program for a graduation ceremony.

(2) The district and/or school officials shall not encourage, promote, advance, endorse, or participate in causing prayers during any graduation ceremony....

(4) The district and/or school officials shall not provide copies of student remarks from any prior year’s graduation ceremony to any students selected to make remarks during an upcoming graduation ceremony.

(5) ... No program or flier may direct the audience or participants to stand for any student’s remarks at a graduation ceremony.

(6) If school officials review, revise, or edit a student’s remarks in any way prior to the graduation ceremony, then school officials shall ensure that the student’s remarks do not include prayer.

(7) If school officials do not review, revise, or edit a student’s remarks ..., then a student’s remarks may include prayer, provided that no other persons may be asked to participate or join in the prayer, for example, by being asked to stand or bow one’s head. Moreover, in the event that a student’s remarks contain prayer, no school officials shall join in or otherwise participate in the prayer.

(8) Any program or flier for a graduation ceremony must include the following disclaimer if the ceremony includes a student’s remarks: “The views or opinions expressed by students during this program are their own and do not reflect the policy or position of the school district.”

Greenville News reports on the decision.

FOIA Lawsuit Seeks Information On International Religious Freedom Press Briefing

A Freedom of Information Act lawsuit was filed this week seeking State Department records relating to a March 18 press briefing on international religious freedom. The complaint (full text) in Reporters Committee for Freedom of the Press v. U.S. Department of State, (D DC, filed 7/17/2019), alleges that the State Department press corps was excluded from the briefing, and they were denied a transcript of the briefing,  a list of faith-based media that were invited, and the criteria used to determine those who were invited. Reporters Committee issued a press release announcing the filing of the lawsuit.

Quebec Court Refuses To Enjoin Law Barring Officials From Wearing Religious Symbols

In Hak v. National Council of Canadian Muslims, (Quebec Super. Ct.., July 9, 2019) [opinion in French], a Quebec trial court refused to issue a temporary injunction against enforcement of the province's new law that prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. (See prior posting.) According to CBC News:

The government hoped to shield the law from constitutional challenges by invoking the notwithstanding clause; meaning critics can't appeal to the fundamental freedoms section of the Charter of Rights and Freedoms to get it struck down....

At several points in his decision, [Judge] Yergeau said the injunction request had a steeper hill to climb because the civil society groups couldn't argue the law violated fundamental freedoms protected by the charter.

"The plaintiffs had no other choice for success than to base themselves on purely constitutional arguments, as opposed to Charter arguments, whose validity remains uncertain," the decision reads....

He noted, in particular, the arguments that the law trampled on federal jurisdiction and violated minority rights had enough merit to warrant further consideration by the courts.

But he also said claims that the law had caused irreparable harm were "purely hypothetical and often speculative" given the motion filed so quickly after it was passed.

Catholic Schools Can Challenge Athletic Competition Rule Change

The Ohio Supreme Court in a 5-2 decision in Ohio High School Athletic Association v. Ruehlman, (OH Sup. Ct., July 16, 2019), allowed a trial court judge to move ahead with a challenge brought by Catholic high schools to a rule change by the Ohio High School Athletic Association.  The rule change which relates to the division to which a school is assigned for post-season competition is designed to adjust for the purported advantage that private schools have by reason of their ability to enroll students from wider geographic areas than public schools.  A Catholic school and the athletic conference to which it belongs sought to enjoin application of the new rule. The Ohio High School Athletic Association here sought unsuccessfully to prevent the suit from moving forward.  AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

State Department Hosts Second Ministerial To Advance Religious Freedom

Secretary of State Mike Pompeo is hosting the second Ministerial to Advance Religious Freedom. The 3-day event ends today.  The State Department's website outlines each day's agenda.  The website also has videos of all the speeches and workshops presented during the three days. Secretary Pompeo offered opening remarks at the event. The State Department's website describes the conference:

The Ministerial will reaffirm international commitments to promote religious freedom for all and focus on concrete outcomes that produce durable, positive change. A broad range of stakeholders will convene to discuss challenges, identify concrete ways to combat religious persecution and discrimination, and ensure greater respect for freedom of religion or belief.

The State Department has also chosen 5 recipients of the 2019 International Religious Freedom Awards.

Conservatives Oppose Trump's 5th Circuit Nominee Because of His Contraceptive Mandate Decision

The Washington Times yesterday reported that federal district court judge Halil Suleyman Ozerden, who has been nominated by President Trump for a seat on the U.S. 5th Circuit Court of Appeals is facing opposition from some Republican members of the Senate Judiciary Committee. They have questioned Ozerden's record on religious liberty because of an opinion he wrote in 2012 in Catholic Diocese of Biloxi, Inc. v. Sebelius, (SD MS, Dec. 20, 2012). In that case he dismissed on ripeness grounds a Catholic diocese's challenge to the Affordable Care Act contraceptive coverage mandate.  Conservative advocacy groups such as the American Family Association and the First Liberty Institute are opposing his selection.

U.S. Sanctions Top Burmese Military Leaders For Ethnic Cleansing of Rohingya

Yesterday U.S. Secretary of State Mike Pompeo announced that four top Burmese military leaders and their immediate families will be barred from entry into the United States "for gross human rights violations, including in extrajudicial killings in northern Rakhine State, Burma, during the ethnic cleansing of Rohingya." This made the United States the first government to publicly take action against the most senior leadership of the Burmese (Myanmar) military. The announcement was followed by an official briefing on the action by State Department officials. AlJazeera reports on the State Department's action.

New Report Released On Religious Restrictions Around the World

On Monday, the Pew Research Center released its tenth annual report on governmental restrictions and social hostility to religion in 198 countries and territories around the world. The 126-page report titled A Closer Look At How Religious Restrictions Have Risen Around the World, concludes:

Over the decade from 2007 to 2017, government restrictions on religion — laws, policies and actions by state officials that restrict religious beliefs and practices — increased markedly around the world. And social hostilities involving religion – including violence and harassment by private individuals, organizations or groups – also have risen since 2007, the year Pew Research Center began tracking the issue.

Indeed, the latest data shows that 52 governments – including some in very populous countries like China, Indonesia and Russia – impose either “high” or “very high”levels of restrictions on religion, up from 40 in 2007. And the number of countries where people are experiencing the highest levels of social hostilities involving religion has risen from 39 to 56 over the course of the study.

EEOC Sues McDonald's Franchisee For Failure To Compromise On Grooming Policy

The EEOC announced yesterday that it has filed a lawsuit in a Florida federal district court charging the owner of several McDonald's restaurant franchises in central Florida with religious discrimination.  McDonald's grooming policy requires all employees to be clean shaven.  The restaurant refused to grant an accommodation to a Hasidic Jew who was applying for a part-time maintenance position. The job applicant offered to wear a beard net, but said his religious beliefs preclude shaving.

UPDATE: Here is the full text of the complaint in EEOC v. Chalfont & Associates Group, Inc., (MD FL, filed 7/16/2019). [Thanks to Tom Rutledge.]

9th Circuit Rejects Free Exercise Challenge To Tax Injunction Act

In Samaj v. County of Riverside, (9th Cir., July 15, 2019), the U.S. 9th Circuit Court of Appeals rejected petitioner's free exercise challenge to the federal Tax Injunction Act ("TIA"). The court said in part:

Samaj contends that by stripping the district court of its ability to entertain First Amendment challenges to state taxes, the TIA amounts to a law prohibiting the free exercise of religion. We disagree.... Although a more difficult question would be presented if Samaj were altogether precluded from suing to enjoin an allegedly unconstitutional tax, that is not the case here. The TIA only withdraws federal jurisdiction where the party has a “plain, speedy, and efficient remedy” under state law.

Christian Group Settles Harassment Suit

Last week, a Minnesota state trial court entered a mediated settlement agreement in a case in which a lawyer had obtained a temporary restraining order against the Christian Action League of Minnesota.  As related by a press release from the Thomas More Society:

A local lawyer complained about postcards and emails the group sent to her because she advertises in City Pages. The correspondence informed advertisers that the metro Minneapolis-St. Paul alternative newspaper also promoted the adult sex trade and invited advertisers to reconsider supporting a media outlet that did so.

In R. Leigh Frost Law, Ltd. v. Christian Action League of Minnesota, (MN Dist. Ct., July 11, 2019), the court entered a mediated order dismissing the harassment restraining order, but requiring that for the next two years, Christian Action League may not contact petitioner by any means, including e-mail, social media, post cards, regular mail, phone or in person, nor may it encourage others to contact her or her employer.

Britain Announces Next Steps For Opposite-Sex Civil Partnerships

In a press release last week, Britain's Government Equalities Office announced the release of its report titled Implementing Opposite-Sex Civil Partnerships: Next Steps.  It announces detailed plans for extending civil partnerships to opposite sex couples, and to ask for views of the public on whether conversion of marriages to civil partnerships should be permitted. The report says in part:

Broadly, we intend to provide protections to ensure that faith or religious organisations are not compelled to act in a way that would be in contravention of their beliefs.

...We are aware that for many religious groups, the preferred union for opposite-sex couples is marriage and those groups would not wish to host civil partnerships for opposite-sex couples on their premises, or in any way participate in the formation of opposite-sex civil partnerships. They may also have religious objections to employing individuals, including ministers, who are in a civil partnership as opposed to a marriage.

Law & Religion UK has an extensive discussion of the report.

Justice John Paul Stevens Dies At Age 99

New York Times reports that Justice John Paul Stevens who served on the U.S. Supreme Court for 35 years (1975- 2010) died on Tuesday at the age of 99.  The First Amendment Encyclopedia summarizes Justice Stevens' church-state jurisprudence:

Stevens was a consistent defender of church-state separation in freedom of religion cases.  He wrote the Court’s decision in Wallace v. Jaffree (1985), invalidating an Alabama moment of silence law.  Stevens reasoned that the Alabama legislature had a clear religious purpose of bring prayer back into the public schools. Stevens also authored the Court’s decision in Santa Fe Independent School District v. Doe (2000), invalidating a Texas high school district’s practice of announcing prayers over the loudspeakers at football games. 

For lengthier discussions of Justice Stevens views on 1st Amendment religion issues, see:

• Andrew M. Koppelman, Justice Stevens, Religious Enthusiast, (2012).
• Gregory P. Magarian, Justice Stevens, Religion, and Civil Society, (2011).
• Michael Kessler, The Religious Neutrality of Justice John Paul Stevens, (2010).
• Christopher L. Eisgruber, Justice Stevens, Religious Freedom, and the Value of Equal Membership (2006).
• Robert F. Nagel, Justice Stevens' Religion Problem, (2003).

Court Refuses To Dismiss Loss of Sepulcher Claims

In Gutnick v Hebrew Free Burial Society for the Poor of the City of Brooklyn, (Kings Cty.. NY Sup Ct., June 28, 2019), a New York trial court refused to dismiss common law loss of sepulcher claims by the daughter of an Orthodox Jewish man who died. According to the court:

On April 13, 2014, at an open grave site, plaintiff and other mourners gathered around a coffin believed to be the decedent. During the funeral service, plaintiff noticed a handwritten sticker on the coffin with a name that was not the decedent. Plaintiff alerted the Rabbi performing the ritual and was advised that Orthodox Jewish law forbids the opening of a casket once it has been closed. However, cemetery representatives later opened the casket, in plaintiff's presence and discovered the body of an unknown woman. It is further alleged that the location of the decedent was unknown for several hours. Later, Capitol, HFBA, Mount Richmond Cemetery, and Pyramid representatives informed plaintiff that her father may have been buried in another grave. Upon identifying the grave, the representatives disinterred the coffin and opened it to discover the decedent's body, which plaintiff identified.

Suit Challenges Limits On Sharing Religious Message At Gay Pride Events

Suit was filed in a Tennessee federal district court last month challenging the manner in which the Special Events Policy of Johnson City (TN) is interpreted and applied. The complaint (full text) in Waldrop v. City of Johnson City, Tennessee, (ED TN, June 19, 2019) contends that the city's policy unconstitutionally prevents plaintiffs from sharing their Christian message during gay pride parades and events. It alleges:

123. As applied, the Policy unconstitutionally attempts to convert the City’s streets, sidewalks, and parks from traditional public fora into a nonpublic forum during Special Events conducted in the City. 

124. As applied, the Policy unconstitutionally limits Plaintiffs’ freedom of speech by forcing Plaintiffs to move out of a traditional public forum during Special Events....

133. Plaintiffs have a personal belief in the Biblical mandate to spread the Gospel of Jesus Christ, and Plaintiffs engage in activities, for the purpose of spreading the Gospel of Jesus Christ, that are prohibited by the Policy, as interpreted and enforced by Defendants.

WJHL News reports on the lawsuit.

9th Circuit: New Title X Limits Remain In Effect For Now

Earlier this month, the U.S. 9th Circuit Court of Appeals voted to vacate the 3-judge panel's decision in State of California v. Azar, and to grant en banc review of whether the Trump Administration's new regulations on family planning grants may go into effect. The new rules bar recipients of family planning grants under Title X from referring clients for abortions. They also ban clinics that receive Title X funds from sharing office space with abortion providers. Three district courts had enjoined implementation of the new rules, but a 3-judge panel of the 9th Circuit had granted a stay of the injunctions, allowing the new rules to go into effect. (See prior posting.) While it was widely reported that the court's action earlier this month granting en banc review had reinstated the district court injunctions, apparently that was not so because a week later in State of  California v. Azar, (9th Cir., July 11, 2019), the en banc court, in a 7-4 opinion, said:

Pursuant to prior order of the Court upon granting reconsideration en banc, the three-judge panel Order on Motions for Stay Pending Appeal in these cases was ordered not be cited as precedent by or to any court of the Ninth Circuit. However, the order granting reconsideration en banc did not vacate the stay order itself, so it remains in effect. Thus, the motions for administrative stay remain pending and were not mooted by the grant of reconsideration en banc.

After due consideration of the emergency motions, the motions for administrative stay of the three-judge panel order are DENIED.

Liberty Counsel, reporting on the decision, says that the new Title X rules will block $50 to $60 million in grants to Planned Parenthood that would have been used for birth control, testing for sexually transmitted diseases, and cancer screenings.

6th Circuit Affirms Jury's Damage Award To Muslim Inmates

In Heard v. Finco,(6th Cir., July 15, 2019), the U.S. 6th Circuit Court of Appeals affirmed a jury's damage  award totaling $900 to four Nation of Islam inmates whose religious exercise rights were infringed when prison officials reduced the amount of calories they were served in their Ramadan meals. The inmates argued, however, that they suffered spiritual damage in excess of this amount because their hunger made it difficult for them to focus on prayer and Quran readings. The court said:

Here, the jury heard the inmates’ testimony and saw their medical records. The inmates also had two experts—a nutritionist and an Islamic studies scholar—testify about the harms (both physical and spiritual) that the inmates suffered. The jury weighed all this evidence and concluded that each inmate suffered $150 worth of harm for each Ramadan the prison officials disrupted. The district court had no good reason to second-guess this determination, and neither do we.

[Thanks to Tom Rutledge for the lead.] 

3rd Circuit Affirms Injunction Against Expanded Contraceptive Mandate Exemptions

In Commonwealth of Pennsylvania v. President United States of America, (3d Cir., July 12, 2019), the U.S. 3rd Circuit Court of Appeals affirmed a district court's entry of a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding the scope of the exemptions under the Affordable Care Act for employers having religious or moral objections to contraceptive coverage. The court said in part that the agencies involved lacked good cause to dispense with the notice and comment requirements in promulgating the Interim Final Rules expanding the exemptions, and the use of the notice and comment procedure to finalize the rules did not cure the defect.  The court also said:

The Agencies’ effort to cast RFRA as requiring the Religious Exemption is also incorrect. Even assuming that RFRA provides statutory authority for the Agencies to issue regulations to address religious burdens the Contraceptive Mandate may impose on certain individuals, RFRA does not require the enactment of the Religious Exemption to address this burden....

RFRA does not require the broad exemption embodied in the Final Rule nor to make voluntary a notice of the employer’s decision not to provide such coverage to avoid burdening those beliefs.

The Hill reports on the decision and says that an appeal to the Supreme Court is likely.

Recent Articles of Interest

From SSRN:

• Daniel O. Conkle, Equality, Animus, and Expressive and Religious Freedom Under the American Constitution: Masterpiece Cakeshop and Beyond, (Freedom of Expression in Comparative Law, Gilles J. Guglielmi, ed.; Les Editions Panthéon-Assas, 2020, Forthcoming).
• Allen Mendenhall, Review of Patrick J. Deneen's 'Why Liberalism Failed', (20 Journal of Faith and the Academy, Vol. XII, No. 1 (2019)).
• Jacob Bronsther, Torture and Respect, (109 Journal of Criminal Law and Criminology 423 (2019)).
• Grant Frazier, Defusing a Ticking Time Bomb: The Complicated Considerations Underlying Compulsory Human Gene Editing, (Hastings Science & Technology Law Journal, Forthcoming).
• Caleb Acker, Millstones and Ministry: Generational Transmission As the Unifying Factor in Ministerial Exception Jurisprudence for Teachers Post-Hosanna-Tabor, (July 9, 2019).
• Marie-Amelie George, Framing Trans Rights, (Northwestern University Law Review, Forthcoming).
• Christine Chambers Goodman, The Civil Rights Act, (The Marin Lawyer, June 2019, at 19).

From SSRN (Non-U.S. Law):

• Dr. Ahmad Shaikh, The Root of Other Crimes and the Adultery, (April 30, 2019).
• Natti Perelman, Freedom of Expression and the Desecration of Flags and Religious Books in Israeli Law, (University of Milano-Bicocca School of Law Research Paper No. 19--3, July 2019).
• Loveday Enyinnaya Ogbuleke, Democracy and Ethno-Religious Conflicts in Jos, Plateau State, Nigeria (2007-2012), (Irish Interdisciplinary Journal of Science & Research (IIJSR) (Quarterly International Journal) Volume 3, Issue 2, Pages 29-44, April-June 2019).
• Perry Dane, Names and Numbers: A D’var Torah on Parshat Bamidbar,(July 12, 2019).
• Mohammad Fadel & Connell Monette, Introduction to the English Translation of the Muwatta' of Imam Malik b. Anas, Recension of Yahya b. Yahya al-Laythi (Royal Moroccan Edition, 2013), (Harvard Islamic Legal Studies Program, Forthcoming).
• Mohammad Fadel & Connell Monette (translators), Book 20 of the Muwatta -- The Book of Pilgrimage (Ḥajj) (Harvard Islamic Legal Studies Program, Forthcoming).
• Béligh Elbalti, The Recognition and Enforcement of Foreign Filiation Judgments in Arab Countries, (Nadjma Yassari et al. (ed.), Filiation and the Protection of Parentless Children (T.M.C. Asser Press, 2019), 373-402).

From SmartCILP:

• Marie A. Failinger, Islam In the Mind of American State Courts: 1960 to 2001, 28 Southern California Review of Law & Social Justice 21-105 (2019).

Religious Discrimination Claim By Security Guard Is Rejected

In Murphy v. Secretary, U.S. Department of Homeland Security, (ND WV, July 11, 2019), a West Virginia federal district court rejected religious discrimination claims brought plaintiff who was removed as a security guard at a U.S. Customs and Border Protection facility. Plaintiff who is Roman Catholic and whose wife is Buddhist claims he was removed because of a conversation about his religion that he had with a fellow employee. That fellow employee, a Southern Baptist, claimed that plaintiff had created a hostile work environment when plaintiff "placed his hands up, did a short dance, and asked ‘are you the ones that dance with snakes?'" Rejecting plaintiff's Title VII claim, the court said in part:

The Plaintiff fails to present any evidence that the prohibited conduct in which he engaged was comparable in seriousness to misconduct of other employees outside the protected class who received less severe discipline. Accordingly, he has not shown a prima facie case of discrimination.

The court also rejected plaintiff's 1st Amendment claims.

Religious Residential Program Gets Property Tax Exemption

In Aish Hatorah New York v. Passaic City, (NJ Tax Ct., July 10, 2019), the New Jersey Tax Court held that two properties used by the Orthodox Jewish organization Aish Hatorah for its Aish Woman's House are entitled to a property tax exemption as buildings used for "religious purposes" and for "the moral and mental improvement of men, women and children." Aish House is described by the court as "a residential setting for adult unmarried Jewish women to nurture and develop their understanding of, and faith in Orthodox Judaism .... under the supervision and guidance of the 'rabbi-in-residence'...." The city had argued that the two properties were merely a student dormitory and a rabbi's residence, and therefore not exempt from taxation.

USCIRF Issues Fact Sheet On Prosecution of Mass Atrocity Crimes

The U.S. Commission on International Religious Freedom this month issued a Legislation Factsheet on Prosecution of Mass Atrocity Crimes. The document sets out definitions of crimes against humanity, genocide and war crimes, and discusses the courts in which such crimes can be prosecuted.

Teacher Sues Archdiocese For Directing Catholic High School To Fire Him Over Same-Sex Marriage

Catholic Herald reported yesterday on a lawsuit filed against the Archdiocese of Indianapolis by Joshua Payne-Elliott, a former teacher at Cathedral High School. The suit charges interference with the teacher's professional relationship with the school. The Archdiocese directed the high school to terminate Payne-Elliott's contract after he entered a same-sex marriage. The school made it clear it was following the directive in order to avoid the Archdiocese withdrawing recognition of the school as Catholic. One day before filing his lawsuit against the Archdiocese, the teacher reached what was apparently a friendly settlement with Cathedral High School. The school is helping him find a new teaching position. In response to the lawsuit, the Archdiocese issued this statement:

In the Archdiocese of Indianapolis’ Catholic schools, all teachers, school leaders and guidance counselors are ministers and witnesses of the faith, who are expected to uphold the teachings of the Church in their daily lives, both in and out of school. Religious liberty, which is a hallmark of the U.S. Constitution and has been tested in the U.S. Supreme Court, acknowledges that religious organizations may define what conduct is not acceptable and contrary to the teachings of its religion, for its school leaders, guidance counselors, teachers and other ministers of the faith.

Vatican Waives Diplomatic Immunity of Apostolic Nuncio In France

La Croix reports:

The Vatican has officially waived the diplomatic immunity of the Apostolic Nuncio in France, Archbishop Luigi Ventura, allowing him to appear before a civil court where six complainants have accused him of sexual assault.

This decision, unprecedented in the history of modern Vatican diplomacy, was communicated last week to the French authorities by the Secretariat of State of the Vatican.

Man Sentenced To 30 Months For Religiously Motivated Hate Crime

The Department of Justice announced this week that Ohio resident Izmir Koch was sentenced to 30 months in prison after his conviction for carrying out a religiously motivated assault on a Jewish man. Koch was found guilty last December of violating the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, and of lying to the FBI about his role in the assault.

Settlement Reached In Discrimination Suit Against Michigan Chautauqua Village

Petoskey News-Review reports that a settlement has been reached in a lawsuit against the Michigan village of Bay View that was established in 1875 as part of the United Methodist Church's Chautauqua movement.  In 2017, a federal lawsuit was filed challenging provisions in the Bay View Association's rules that limited cottage ownership to practicing Christians, as well as the requirement that a majority of the Association board be Methodists.  (See prior posting.) Later the Justice Department joined the lawsuit.  In 2018, the provision limiting ownership to Christians was eliminated. (See prior posting.) However plaintiffs also objected to other provisions favoring Christians. 

In the settlement reached in May, but which must still be approved by the court, Bay View Association will retain its status as a religious organization, but will need to file for its tax exempt status separately rather than through the United Methodist Church. It will end the requirement that a majority of its board be Methodists.  The Association will also eliminate provisions in its bylaws that require members to "respect the principles of the United Methodist Church" and support Bay View's mission. Instead, the bylaws will be amended to read that members must "respect and preserve the history and values of the Association," which includes acting "in a manner consistent with Christian values." Finally, Bay View, through its insurers, will pay $75,000 in plaintiffs' legal fees.  The Justice Department will monitor compliance with the settlement for five years.

Suit Challenges Repeal Of New York's Religious Exemption From Vaccination

A class action lawsuit was filed yesterday in a New York state trial court seeking to enjoin the state's recently enacted repeal of the religious exemption from requirements for vaccination of school children. The complaint (full text) in F.F. v. State of New York, (Albany Cty. Sup. Ct., filed 7/10/2019), was filed on behalf of 55 families of various religions who previously were granted religious exemptions.  A number of plaintiffs were families sending their children year-around to Orthodox Jewish yeshivas. The complaint alleges that the exemption repeal was enacted based on active hostility to freedom of religion and is not supported by empirical evidence that unvaccinated minors holding religious exemptions played any part in the recent spread of measles in the state. The complaint went on to allege:

the process by which the New York State Legislature adopted the repeal belies any sense that a public health emergency justified this action; that the repeal violates the Equal Protection Clause because the legislature has concurrently retained the medical exemption and the religious exemption for students enrolled in higher education and allowed unvaccinated staff in both public and private schools in New York .... [F]inally the Court should find ... that the repeal compels speech and acts repugnant to plaintiffs’ religious beliefs....

Plaintiffs also filed a brief (full text) in support of their request for a temporary restraining order.  Albany Times Union reports on the lawsuit. Children's Health Defense issued a press release with links to additional pleadings in the case.

Pastor Claims Retaliation For Ministering To Migrants

Rev. Kaji Douša, senior pastor of New York City's Park Avenue Christian Church, has filed suit against the federal government claiming that she has been targeted for ministering to migrants at the southern border and in Mexico.  The complaint (full text) in Dousa v. U.S. Department of Homeland Security, (SD CA, filed 7/8/2019) alleges in part:

11. In New York, regional ICE officials tracked rallies and prayer vigils led by Pastor Dousa on a list that the officials compiled of so-called “Anti-Trump Protests.” These officials marked Pastor Dousa for surveillance because she prayed with and for immigrants, and because she generated publicity about the devastation that ICE’s enforcement activities rain on immigrants and their families.

12. Then, in January, Defendants detained Pastor Dousa as she attempted to re-enter this nation, her nation, after a day in Tijuana ministering to migrants and their advocates. Border agents interrogated Pastor Dousa about her pastoral work.... They revealed to Pastor Dousa that they had collected detailed information about her and her pastoral work. And they revoked the access she had previously been granted to expedited border crossing.

13. Pastor Dousa’s name is included in a secret government database of journalists, attorneys, immigrant-rights activists, and others targeted for their work with and for migrants....

Alleging violations of the First Amendment and RFRA, the complaint explains:

Defendants’ targeting of Pastor Dousa impedes her ministry, through and through. It burdens her ability to continue answering God’s call to minister to migrants and refugees, which cannot happen without confidence in  confidentiality.... Defendants’ targeting of Pastor Dousa has further forced her to take steps contrary to her faith and to forgo activities that her faith requires, including all but ending her ministry of pastoral care at the Southern Border....

Religion News Service reports on the lawsuit.

Trump's Proposed Tariffs On China Will Impact The Cost of Bibles

AP reports that the Trump Administration's proposed 25% tariffs on imports from China will make Bibles more expensive and impact Christian evangelical organizations that give away Bibles as part of their religious activity. Imposition of those tariffs is now on hold as trade negotiations have resumed. Over half of the Bibles printed worldwide come from China where printers have adapted to the specialized printing requirements needed for production. It is estimated that 150 million Bibles are printed in China each year and that some 20 million are sold each year in the United States. Bible publishers have told the U.S. Trade Representative that the printing of books does not involve technology that is at risk of theft by China.