Recent Articles of Interest

From SSRN:

• Laura Underkuffler, Should the Religious Be Exempt? Questions of Justice, Character, and the Maintenance of Norms, (Criminal Justice Ethics, Volume 37, 2018 - Issue 1).
• John Witte & Justin Latterell, The Last American Establishment: Massachusetts, 1780-1833, (Carl H. Esbeck and Jonathan Den Hartog, eds., Religious Dissent and Disestablishment: Church-State Relations in the New American States, 1776-1833 (University of Missouri Press, 2019)).
• Linda C. McClain, Bigotry, Civility, and Reinvigorating Civic Education: Government's Formative Task Amidst Polarization, (John Witte, Jr. et al., eds, The Role of Law in Character Formation, Moral Education, and the Communication of Values in Late Modern Pluralistic Societies (Leipzig: EVA Publishers, 2020, Forthcoming).
• Linda C. McClain, Response to Commentaries on Who's the Bigot?, (Boston University Law Review, Vol. 99, No. 2713, 2020).
• Ashutosh A. Bhagwat, Crossing Doctrines: Conflating Standing and the Merits Under the Establishment Clause, (Washington University Law Review, Forthcoming).
• Samuel D. Brunson, God Is My Roommate? Tax Exemptions for Parsonages Yesterday, Today, and (if Constitutional) Tomorrow, (February 11, 2020).
• Dov Fox, The Legal Challenge of Abortion Stigma and Government Restrictions on Medical Practice, (Hastings Center Report, March 2020).
• Kent Greenfield, Trademarks, Hate Speech, and Solving a Puzzle of Viewpoint Bias, (Supreme Court Review, 2019, Forthcoming).
• Sefa Ozalp, et. al., Antisemitism on Twitter: Collective Efficacy and the Role of Community Organisations in Challenging Online Hate Speech. (Social Media and Society (2019).

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

• Neha Tripathi, Female Genital Mutilation: A Humanistic Approach, (January 28, 2020).
• Juan Pablo Perez Leon Acevedo & Thiago Felipe Alves Pinto, Enforcing Freedom of Religion or Belief in Cases Involving Attacks Against Buildings Dedicated to Religion: The Al Mahdi Case at the International Criminal Court, (Berkeley Journal of International Law (BJIL), Vol. 37, No. 3, 2020).
• Santiago Legarre, Germán José Bidart Campos (1927–2004), (Law and the Christian Tradition in Latin America: Biographies (London, Routledge, 2020, Rafael Domingo and Matthew Mirow eds.).
• Husam Suleiman, Implementation and Advancement of a Collaborative Zakat Management System in Southern California, the United States; A Case Study of a Hybrid Zakat Cooperative Model, (October 4, 2018).
• Saqib Jawad, Anglicization of Islāmic Law in the Sub-Continent and Its Impact on the Legal System of Pakistan, (Ulūm-e-Islāmia Vol. No.26, Issue No. 02, 2019).

High School Football Coach's Complaint Over On-Field Prayer Ban Is Dismissed

In Kennedy v. Bremerton Schoool District, (W WA, March 5, 2020), a Washington federal district court dismissed 1st Amendment and Title VII claims by a high school football coach who was suspended when he insisted on prominently praying at the 50-yard line immediately after football games.  The court said in part:

The ensuing dispute has highlighted a tension in the First Amendment between a public-school educator’s right to free religious expression and their school’s right to restrict that expression when it violates the Establishment Clause....

Given this practical assessment of Kennedy’s duties as a coach, the Court must hold that his prayers at the 50-yard line were not constitutionally protected.... Like the front of a classroom or the center of a stage, the 50-yard line of a football field is an expressive focal point from which school-sanctioned communications regularly emanate. If a teacher lingers at the front of the classroom following a lesson, or a director takes center stage after a performance, a reasonable onlooker would interpret their speech from that location as an extension of the school-sanctioned speech just before it. The same is true for Kennedy’s prayer from the 50-yard line....

Here, Kennedy’s practice of praying at the 50-yard line fails both the endorsement and coercion tests and violates the Establishment Clause. While it may not convey school approval as universally as a public announcement system, speech from the center of the football field immediately after each game also conveys official sanction. This is even more true when Kennedy is joined by students or adults to create a group of worshippers in a place the school controls access to.

The case, at the preliminary injunction stage, has already worked its way to the U.S. Supreme Court where certiorari was denied, but with an unusual 6-page concurring statement by 4 justices. (See prior posting.) Kitsap Sun reports on yesterday's district court decision.

USCIRF Hearing On Citizenship Laws and Religious Freedom

The U.S. Commission on International Religious Freedom held a hearing yesterday on Citizenship Laws and Religious Freedom. The hearing focused on the use of citizenship laws to deny rights to religious minorities, with emphasis on developments in India and past actions in Burma. The written statements submitted in the hearings are available on USCIRF's website.

West Virginia Legislature Enacts Law To Permit Courses On The Bible

The West Virginia legislature yesterday gave final passage to House Bill 4780 (full text) which authorizes public schools to offer elective social studies courses on the Bible in grades 9 and above. Such courses are to:

Teach students knowledge of biblical content, characters, poetry, and narratives that are prerequisites to understanding the development of American society and culture, including literature, art, music, mores, oratory, and public policy....

The bill now goes to Governor Jim Justice for his signature.  WV Metro News reports on the legislation.

Virginia Becomes 20th State To Ban Conversion Therapy

Virginia Governor Ralph Northam this week signed into law House Bill 386 (full text) which bans licensed health professionals from engaging in conversion therapy with anyone under 18 years of age. New York Times reports that this makes Virginia the twentieth state to ban these attempts to change sexual orientation of gender identity. It is the first southern state to do so.

Transcript of Oral Arguments In June Medical Services Case Now Available

Here is the transcript of today's oral arguments in the U.S. Supreme Court in June Medical Services L.L.C. v. Russo -- the constitutional challenge to Louisiana's abortion law. Vox reports on the oral arguments, headlining it "Abortion rights had a surprisingly hopeful day in the Supreme Court". CNN however headlines its report "Supreme Court appears split after hearing first major abortion case with strong conservative majority".

10th Circuit: Inedible Vegan Diet Burdened Buddhist Inmate's Religious Exercise

In Blair v. Raemisch, (10th Cir., March 2, 2020), the U.S. 10th Circuit Court of Appeals held that a Buddhist inmate's complaint about the vegan diet he was served adequately stated a claim under the 1st Amendment's free exercise clause and under RLUIPA. According to plaintiff's complaint, on 19 out of each 28 days, he was served a vegan patty made at the prison from left-over beans, yams, oatmeal, tomato paste, and seasoning combined in a blender and then baked. He alleged that these were inedible, and caused him to vomit. This forced him to go hungry or purchase vegan food from the commissary. The court concluded that, if true, this substantially burdened plaintiff's sincerely held religious beliefs and put pressure on him to abandon them. Colorado Politics reports on the decision.

Supervision of Sex Offender's Church Attendance Upheld

In State of Washington v. Mecham, (WA App., March 2, 2020), a Washington state appellate court rejected a free exercise challenge to a community custody condition imposed on a convicted sex offender. Under a negotiated plea agreement, appellant, among other things, was prohibited from attending church services unless accompanied and supervised by an adult aware of his offenses and approved by his Community Corrections Officer.  In upholding the prohibition, the court said in part:

Mecham’s crime involved abusing an unsupervised child at church. The day of the offense, Mecham was attending church with his mother, father, and older brother. Mecham has failed to show that these members of his family, who presumably know his offense, will be unable to supervise his attendance at church. Thus, from the record, Mecham will be able to continue attending church services in the same manner as before his conviction.

Further, even if the restriction unduly burdened Mecham’s free exercise, the restriction satisfies strict scrutiny....

The State has a compelling interest to protect families who attend church services from Mecham. Mecham committed the offense in a church. He abused a seven-year-old in the church playroom while the congregation enjoyed lunch upstairs....  Mecham needs supervision to prevent this type of contact.

Supreme Court To Hear Arguments Today In High-Profile Abortion Case

Today, the U.S. Supreme Court hears oral arguments in a high profile abortion case-- June Medical Services v. Russo. At issue is the constitutionality of the Louisiana Unsafe Abortion Protection Act which requires any abortion provider to have admitting privileges at a hospital within 30 miles of the location where abortions are performed. In March 2016, the U.S. Supreme Court summarily upheld a preliminary injunction issued by the district court preventing the Act from going into effect. In September 2018, the U.S. 5th Circuit Court of Appeals reversed the district court and upheld the statute. In January 2019, the full 5th Circuit, by a vote of 6-9, denied en banc review. Plaintiff appealed the substantive holding to the Supreme Court. The state cross-appealed the grant of third-party standing to the abortion clinic plaintiff. (See prior posting.) Meanwhile in February 2019 the Supreme Court stayed the 5th Circuit's decision pending appeal to the Supreme Court, with four justices dissenting. The SCOTUS blog case page has links to all the filings (including dozens of amicus briefs) in the case, as well as to commentary on the case.

I will post a link to the transcript of the oral arguments when they become available later today.

Buffalo Catholic Diocese Files For Bankruptcy Reorganization

The Catholic Diocese of Buffalo (NY) announced last week that it has filed for bankruptcy reorganization, saying in part that the petition has:

a primary aim of enabling financial resolution for the most number of individuals who have filed claims under the Child Victims Act - a year-long window that opened on August 14, 2019 that suspends the statute of limitations related to allegations of past sexual abuse.  A further objective of reorganization is that it allows the Diocese to continue uninterrupted its mission throughout Western New York, while working to settle claims with existing Diocesan assets and insurance coverages....

Parishes of the Diocese are separately incorporated under New York State's Religious Corporation Law and not included in today's filing. Similarly, Catholic elementary and secondary schools are also not part of the Chapter 11 case, given that they are owned by parishes or are separately incorporated entities. Catholic Charities of Buffalo, with its extensive ministries that serve residents throughout Western New York, providing critical social services, is also separately incorporated under New York's Not for Profit Corporation Law and will not be part of the filing. This is also true for the Diocese's capital and endowment Campaign - Upon This Rock.

The Bradford Era reports on the filing.

Suit Challenges Tennessee School Voucher Law

Suit was filed yesterday in a Tennessee state trial court challenging the constitutionality under the state constitution of the Tennessee's school voucher law. The funding law applies only to two urban counties (Nashville an Memphis areas). The complaint (full text) in McEwen v. Lee, (TN Chancery Ct., filed 3/2/2020) alleges violations of the state constitution's home rule provision, its education and equal protection clauses, and state provisions on appropriation of public funds. The complaint alleges in part:

The Voucher Law diverts taxpayer dollars to private schools that are not required to adhere to the same academic, accountability, governance, and non-discrimination requirements as Tennessee’s public schools. Diverting limited public education funding to private schools that do not provide students the same standards of education and civil rights protections as public schools violates Tennessee’s Constitution and state law.

The ACLU of Tennessee issued a joint press release announcing the filing of the lawsuit.

House Holds Hearings On Anti-Semitic Domestic Terrorism

On Feb. 26, a subcommittee of the House Homeland Security Committee held a hearing titled Confronting the Rise in Anti-Semitic Domestic Terrorism, Part II. Transcripts of testimony and opening statements, as well as a video of the entire hearing, are available on the Committee's website. Part I of the hearings were held in January. (Transcripts and video of testimony).

Recent Articles of Interest

From SSRN:

• James T. Lindgren, The Religious Beliefs, Practices, and Experiences of Law Professors, (15 University of St. Thomas Law Journal 342 (2019)).
• Faisal Daudpota, An Overview of Pakistan's Jurisprudence on: Free Exercise Clause, and Religious Freedom of Minorities, (February 21, 2020).
• Neil James Foster, Respecting the Dignity of Religious Organisations: When is it Appropriate for Courts to Decide Religious Doctrine?, (University of Western Australia Law Review, Vol. 47, No. 1, 2020).
• Ian Turner, Limits to Terror Speech in the UK and USA: Balancing Freedom of Expression With National Security, (Amicus Curiae, 2020).

From SmartCILP:

• Lalita Moskowitz. God Is a Woman: Feminism as a Religion Protected Under the Free Exercise Clause of the First Amendment, 27 American University Journal of Gender, Social Policy & the Law 399-430 (2019).
• Marian Burchardt, Zeynep Yanasmayan & Matthias Koenig. The Judicial Politics of Burqa Bans in Belgium and Spain--Socio-Legal Field Dynamics and the Standardization of Justificatory Repertoires. 44 Law & Social Inquiry 333-358 (2019).
• Gregory S. Parks & Derek S. Hicks. "How Much a Dollar Cost?" Political Ideology, Religion, and Poverty Policy Through the Lens of Kendrick Lamar's Music, 28 Southern California Review of Law & Social Justice 197-260 (2019).
• Russell Powell, Social Justice and Islamic Jurisprudence, 17 Seattle Journal for Social Justice 1-23 (2018).
• Pamela A. Wilkins. Law School in a Different Voice: Legal Education as a Work of Mercy, 63 St. Louis University Law Journal 401-452 (2019).

British Tribunal Denies Asylum To Disingenuous Iranian Convert To Christianity

Britain's appellate court that reviews decisions on visa and asylum applications and the right to enter or stay in the UK-- the Upper Tribunal (Immigration and Asylum Chamber-- has recently issued an interesting decision on how to treat a citizen of Iran who disingenuously converts from Islam to Christianity in Britain in order to create a basis for an asylum claim. In PS (Iran) v. Secretary of State for the Home Department, (UKUT IAC, Feb. 20, 2020), the court concluded that such aperson does not run a real risk of persecution upon return to Iran, and therefore is not entitled to asylum in the UK. the court said in part:

PS has been out of Iran since 2013; he has claimed asylum on at least two occasions, variously asserting fear as a result of being caught up in the green movement protests, ‘honour’ based violence and latterly on the basis that he had converted to Christianity; he attended church between May 2015 and sometime in 2016 and was baptised after he had been going to that church for about two weeks; he has no known contact with the authorities prior to leaving Iran; he has no known connection with any persons of interest, nor any adverse social media content to be concerned about. He has no known connection with any organisation which could be connected by the Iranian government to the house church movement.  He may be asked to sign an undertaking promising that he will not undertake any Christian activities. There is no reason why PS would refuse. We find that he is likely to be judged to present a negligible risk to the security of Iran. He will be released fairly quickly and we are not satisfied that there is any risk of ill-treatment. PS may be placed under surveillance. Once the authorities are satisfied that he is not attending house church or attempting to contact known Christians he will be of no further interest to the authorities.  Accordingly, we find that PS does not face a real risk of persecution upon return to Iran and his appeal is dismissed. 

The Tribunal also issued a new Country Guidance based on this case. Law & Religion UK reports on the case at greater length.

German Top Court Upholds Hijab Ban For Legal Interns Involved In Official Proceedings

In a decision handed down last month, but not published until yesterday, Germany's Federal Constitutional Court in a 7-1 decision rejected a challenge by a legal intern to the requirement that she remove her hijab when involved in court hearings.  The full decision in German is here. In a press release, the court summarized the decision:

In an order published today, the Second Senate of the Federal Constitutional Court rejected as unfounded the constitutional complaint of a female legal trainee (Rechtsreferendarin) in the Land Hesse; the complaint was directed against the ban on wearing a headscarf when performing certain official tasks. Under constitutional law, the legislature’s decision to establish a duty of neutral conduct with respect to ideological and religious matters for legal trainees must be respected. While this duty amounts to an interference with the complainant’s freedom of faith and other fundamental rights, it is justified. Such an interference can be justified by the constitutional principles of the state’s religious and ideological neutrality and of the proper functioning of the justice system as well as by the negative freedom of religion of others. In the case at hand, none of the conflicting legal interests outweighs the others to such an extent that it would be required under constitutional law to prevent the complainant from wearing religious symbols in the courtroom, or to allow her to do so.

Justice Department Sides With Wedding Photographer In District Court Case

The Department of Justice announced yesterday that it has filed a Statement of Interest (full text) in Chelsey Nelson Photography, LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 2/27/20).  As previously reported, in the case the owner of a wedding photography business seeks a preliminary injunction to prevent enforcement of Louisville's public accommodation ordinance against her. Plaintiff "only accepts requests for services which are consistent with her editorial, artistic, and religious judgment."  This precludes her from providing photography and social media services for same-sex weddings. DOJ sides with the photographer, arguing in part:

Most commercial transactions will not involve requiring an unwilling speaker to participate in someone else’s expressive activity. But where public accommodations laws do intrude on expression in this way, they are subject to heightened scrutiny....

Photography—and particularly the bespoke wedding photography in which Ms. Nelson engages—is inherently expressive.... By ... compelling her to engage in expression promoting and celebrating a ceremony in violation of her conscience, Defendants infringe upon the fundamental “principle of autonomy to control one’s own speech.”

... That is not to say that every application of a public accommodations law to protected expression will violate the Constitution. In particular, laws targeting race-based discrimination may survive heightened First Amendment scrutiny....  The Supreme Court has not similarly held that classifications based on sexual orientation are subject to strict scrutiny or that eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest.

Court Refuses To Order Church Membership Meeting

In Ceglar v. Christ's Harbor Church, (TX App., Feb. 27, 2020), a Texas state appellate court dismissed on ecclesiastical abstention grounds a suit brought by some 25 church members seeking a court order forcing the Church Elders to call a membership meeting.  Two female members of the Church charged its newly-hired senior pastor with inappropriate behavior. Plaintiffs wanted the membership meeting to decide whether the pastor should be disciplined or fired. Under the Church's bylaws, calling a special meeting requires a petition signed by 15% of the Church's members. The court concluded that, given the criteria for Church membership set out in the by-laws, the court cannot determine who is a member without delving into doctrinal matters.

Suit Challenges South Carolina's Anti-LGBTQ Curriculum Law

Three advocacy organizations filed suit yesterday in a South Carolina federal district court challenging the constitutionality of S.C. Code §59-32-30(A)(5) which prohibits public school sex education programs from discussing "alternate sexual lifestyles from heterosexual relationships including, but not limited to, homosexual relationships except in the context of ... sexually transmitted diseases." The complaint (full text) in Gender and Sexuality Alliance v. Spearman, (D SC, filed 2/26/2020)contends that the law violates the equal protection clause, saying in part:

The Anti-LGBTQ Curriculum Law harms LGBTQ students. It stigmatizes them by creating a state-sanctioned climate of discrimination in schools and denies LGBTQ students health education opportunities equal to those of their heterosexual peers.

WCSC reports on the lawsuit.

Trump Praises Modi's Efforts On Religious Freedom In India

At his press conference (full text) in New Delhi, India yesterday, President Donald Trump responded to a question about religious freedom in India:

Q    While you’ve been here in the country, in the capital, the northeast part of Delhi, there have been violent clashes.  Police have been killed, some demonstrators.  Nine deaths so far, we hear, and about 100-plus injured.  What did Prime Minister Modi say to you about this amended citizenship law?  And how concerned are you about this kind of religious violence in India?

THE PRESIDENT:  So, we did talk about religious freedom.  And I will say that the Prime Minister was incredible on what he told me.  He wants people to have religious freedom, and very strongly.  And he said that in India they have — they have worked very hard to have great and open religious freedom.  And if you look back and look at what’s going on, relative to other places especially, but they have really worked hard on religious freedom.

I asked that question in front of a very large group of people today.  And he talked about it; we talked about it for a long time.  And I really believe that’s what he wants.

As far as the individual attack, I heard about it but I didn’t discuss that with him.  That’s up to India.

The Hill reports on these remarks.

Religious Discrimination Suit Dismissed As Moot

In Fiedor v. Florida Department of Financial Services, (ND FL, Feb. 24, 2020), a Florida federal district court dismissed a state government employee's lawsuit alleging religious discrimination.  The court describes the facts of the case:

This case arises from a state agency’s regional manager’s mistaken view that agency policy prohibited employees from discussing religion at work or posting church-related materials on an office bulletin board. After the mistake came to light as a result of this lawsuit, the agency issued an unequivocal correction.  Employees of the regional office now may discuss religion and post church-related materials on the bulletin board. Following a bench trial, this opinion holds moot the plaintiff employee’s challenge to the manager’s now-abandoned position.

2nd Circuit: Chinese Christian Convert Does Not Have Reasonable Fear of Persecution Upon Deportation

In Wang v. Barr, (2d Cir., Feb. 24, 2020), the U.S. 2nd Circuit Court of Appeals upheld the denial of asylum to a Chinese citizen who had converted to Christianity. It held that she failed to prove a well-founded fear of future persecution. The court said in part:

Wang argues that there is a reasonable possibility that the Chinese government will become aware of her religious practice because she intends to attend an underground church, and that there is a reasonable possibility that she will be persecuted as a result because the government has a pattern or practice of persecuting similarly situated Christians. ....

The State Department’s 2015 International Religious Freedom Report states that there are approximately 45 million Christians practicing in unregistered churches in China and that authorities in some areas of the country allow unregistered churches to hold services “provided they remained small in scale,” although authorities in other areas target and close such churches.... The news reports in the record concern abuses against people who are not similarly situated to Wang—who testified that she would attend services at an unregistered church, but not that she would take a leadership role, proselytize, or engage in other activism—or concern areas of China other than Wang’s native Fujian province.

9th Circuit Upholds HHS Family Planning Grant Rules

In a 7-4 en banc decision yesterday, the U.S. 9th Circuit Court of Appeals upheld the Trump Administration's rules that apply to recipients of family planning grants under Title X. In State of California v. Azar, (9th Cir., Feb. 24, 2020),  the majority in an 82-page opinion vacated injunctions that had been entered by three district courts.  The court described the major provisions of the challenged rules:

While referrals for abortion as a method of family planning are not allowed, the Title X project may give a pregnant client a “list of licensed, qualified, comprehensive primary health care providers,” which may include “providers of prenatal care[], some, but not the majority, of which also provide abortion as part of their comprehensive health care services.” .... The Title X project may also provide referrals for abortion when such a procedure is medically necessary....

... [T]he Final Rule ... requires that a Title X project be organized “so that it is physically and financially separate . . . from activities that are prohibited under section 1008 of the Public Health Service Act..... [in order to avoid] the appearance and perception that Title X funds being used in a given program may also be supporting that program’s abortion activities.... 

The dissenters argued that the HHS rules violate Congressional mandates, saying in part:

The majority would return us to an older world, one in which a government bureaucrat could restrict a medical professional from informing a patient of the full range of health care options available to her. Fortunately, Congress has ensured such federal intrusion is no longer the law of the land.

ABC News reports on the decision.

Supreme Court Denies Cert. In Title VII Religious Accommodation Case

The U.S. Supreme Court today denied review in Patterson v. Walgreen Co., (Docket No. 18-349. certiorari denied 2/24/2020). In the case, the U.S. 11th Circuit Court of Appeals, in a suit alleging religious discrimination and retaliation, held that Walgreen had offered reasonable accommodations for the religious needs of a Seventh Day Adventist employee whose beliefs did not permit him to work on Saturday. (See prior posting). In a concurring opinion (full text) accompanying the denial of cert, Justice Alito, joined by Justices Thomas and Gorsuch, said that in an appropriate case the Court should reconsider its holding in the Hardison case that an employer need accommodate an employee's religious observance only if it imposes no more than a de minimis hardship on the employer. They concluded however that "this case does not present a good vehicle for revisiting Hardison."

Supreme Court GVRs Puerto Rico Decision On Pension Liability of Catholic Church

Th U.S. Supreme Court today issued opinions granting certiorari, vacating the judgment of the Puerto Rico Supreme Court and remanding for further proceedings the case of Roman Catholic Archdiocese of San Juan v. Feliciano, (US Sup. Ct., Feb. 24, 2020). At issue was whether the Roman Catholic and Apostolic Church in Puerto Rico was liable for pension benefits of Catholic School employees in Puerto Rico.  The petition for certiorari argued that civil courts must respect the Church's own views on its internal structure. The Supreme Court in a per curiam opinion concluded, however, that it need not reach that issue because Puerto Rican courts lost jurisdiction over the case when it was removed to federal court and had not yet been remanded. Justice Alito, joined by Justice Thomas, wrote to note important issues that may arise on remand. They said in part:

[T]he Free Exercise Clause of the First Amendment at a minimum demands that all jurisdictions use neutral rules in determining whether particular entities that are associated in some way with a religious body may be held responsible for debts incurred by other associated entities....

Beyond this lurk more difficult questions, including (1) the degree to which the First Amendment permits civil authorities to question a religious body’s own understanding of its structure and the relationship between associated entities and (2) whether, and if so to what degree, the First Amendment places limits on rules on civil liability that seriously threaten the right of Americans to the free exercise of religion as members of a religious body.

Supreme Court Grants Review Of City's Refusal To Contract With Catholic Social Services

The U.S. Supreme Court today granted review in Fulton v. City of Philadelphia, (Docket No. 19-323, certiorari granted 2/24/2020) (Order List). The case will be argued next term. In the case, the U.S. 3rd Circuit Court of Appeals upheld held 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.)  Links to filings with the Supreme Court in the case are available from SCOTUSblog's case page.

European Court Finds That Azerbaijan Violated Rights of Jehovah's Witnesses

On February 20, 2020, the European Court of Human Right issued two chamber judgments finding violation of religious freedom rights by Azerbaijan. In Nasirov and Others v. Azerbaijan (application no. 58717/10), the court held that the detention of several Jehovah’s Witnesses for door to-door preaching and distribution of literature violated their rights to freedom of religion (Art. 9) and liberty of person (Art. 5) under the European Convention on Human Rights.

In Religious Community of Jehovah’s Witnesses v. Azerbaijan (no. 52884/09), the Court concluded that Azerbaijan's ban on the importation of specified religious books violated Jehovah's Witnesses freedom of expression under the European Convention on Human Rights (Art. 10) considered in connection with their right to freedom of religion (Art. 9), saying in part:

Cases which involve prior restraint call for special scrutiny by the Court.

Azerbaijan had argued that the three titles in question contained disparaging remarks about the Christian and Jewish communities, contending:

[T]he books in question implied religious superiority and incited religious discord and could therefore damage the peaceful coexistence of several religious communities in a multireligious society...

The court concluded however that Azerbaijani courts "did not carry out careful balancing exercise in conformity with the criteria laid down in its case-law and did not provide “relevant and sufficient” reasons for the interference."

Recent Articles of Interest

From SSRN:

• Phil Lord, Case Comment: Garcia v Church of Scientology Flag Service Organization, (86:2 Arbitration __ (Forthcoming)).
• Richard H. Weisberg, Binaries: Remarks on Chaim N. Saiman's 'Halakhah', (Villanova Law Review, Vol. 64, No. 5, 2019).
• Micah Schwartzman & Nelson Tebbe, Establishment Clause Appeasement, (Virginia Public Law and Legal Theory Research Paper No. 2020-17 (2020)).
• Sahar F. Aziz, The Social Construction of the Racial Muslim, (Rethinking Orientalism (ed. Tamara Sonn) (Oxford University Press), Forthcoming).
• Melissa Were, The Right to Emergency Medical Treatment in the Context of Abortion in Kenya, (October 2019).
• Kaiponanea T. Matsumura, The Integrity of Marriage, (William & Mary Law Review, Vol. 61, No. 2, 2019).

New Chinese Regulations For Religious Groups Took Effect This Month

A Fact Sheet issued last week by the U.S. Commission on International Religious Freedom summarizes China's 2019 Administrative Measures for Religious Groups which became effective on February 1, 2020. Bitter Winter magazine provides a full translation of the Measures. Among the provisions are the following:

Religious organizations must support the leadership of the Communist Party of China, abide by the Constitution, laws, regulations, rules and policies, adhere to the principles of self-support and self-governance, adhere to the direction of Sinicization of religions in China, embody the core values ​​of socialism, and maintain national unity, ethnic unity, religious harmony and social stability.

... Religious organizations shall accept professional guidance and supervision by the religious affairs department of the people’s government.

No 1st Amendment Violation In Requiring Parolee To Live At Christian Homeless Shelter

In Janny v. Gamez, (D CO, Feb. 21, 2020), a Colorado federal district court dismissed an inmate's First Amendment challenge to his arrest for parole violations. Mark Janny's parole officer directed him to stay at a Christian homeless shelter in order to meet the parole requirement that he establish a residence of record. Janny was expelled from the shelter's program when he refused to attend chapel religious services. The court held that plaintiff's Establishment Clause rights were not infringed because there was a secular purpose for the homeless shelter requirement. The court also accepted defendant's qualified immunity defense to an assertion of free exercise violations, saying that it was not clearly established that a parole officer violates a parolee’s rights by requiring him to reside at a facility that provides religious programming.

Swiss Court Says Company's Logo Is Not Offensive To Christians

Swiss Info reports that Switzerland's Federal Administrative Court has ruled against the Swiss Federal Institute of Intellectual Property's attempt to prevent the company Jägermeister from expanding the use of its logo (a stag with a glowing cross between it antlers) beyond liquor and clothing items. The Institute argued that the logo was offensive to the religious views of some consumers. According to Swiss Info:

The court ... said ...: although the story behind the logo indeed stems from an old Christian tale, today the average consumer associates it clearly with the Jägermeister liqueur rather than revelation....

For the Swiss federal judges, ... the “intensive” use of the image by Jägermeister had “weakened its religious character” over time, and nobody was likely to be offended. 

The company is thus free to use it for all promotional activities and products in Switzerland including cosmetics, mobile phones, or telecommunications services.

[Thanks to Tom Rutledge for the lead.]

DOJ Sues Nebraska Village For Refusing Building Permits To Church

The Justice Department announced yesterday that it has filed suit in a Nebraska federal district court against the village of Walthill, Nebraska alleging violations of the "substantial burden" and "equal terms" provisions of the Religious Land Use and Institutionalized Persons Act.  The complaint (full text) in United States v. Village of Walthill, Nebraska, (D NE, filed 2/20/2020), alleges in part:

This civil action is based on the Village’s unlawful refusal to allow Light of the World Gospel Ministries, Inc...., a non-denominational Christian church, to construct a new place of worship on property it owns in a commercial (“C-1”) district of the Village by denying the Church necessary permits. 

... Since 2007, LOTW has operated religious services out of a small, 1,250 sq. ft. building ... on another lot in the C-1 district. The space is no longer adequate to serve its religious needs, and the unstable condition of a dilapidated building next to the church on the property made the space unsafe. The Village refused to permit LOTW to build its noncommercial religious property in the C-1 district, but has permitted noncommercial nonreligious entities to construct buildings in the C-1 district during the same time period.

Court Says Student Evangelists May Preach In Chicago's Millennium Park

In Swart v. City of Chicago, (ND IL, Feb. 20. 2020), an Illinois federal district court granted a preliminary injunction to four Wheaton College students who were part of an outreach ministry to prevent the city of Chicago from enforcing its regulations limiting speech and handbilling activities in the downtown Millennium Park. The court held that the park is a traditional public forum, that the regulations, as enforced, are not content neutral and unconstitutionally vague.  The court also granted a preliminary injunction to intervenors who engage in other kinds of speech activities in the park. Chicago Sun Times reports on the decision.

Jewish School Sues Town For Religious Discrimination

A religious discrimination suit was filed in a New York federal district court this week by an Orthodox Jewish girl's school against the Town of Clarkstown, New York charging it with wrongfully preventing the school from purchasing a Baptist Church property.  The complaint (full text) in Ateres Bais Yaakov Academy of Rockland v. Town of Clarkston, (SDNY, filed 2/18/2020), alleges in part:

In early January 2019, in reaction to ABY’s pending permit application following its entry into a contract for the purchase of the Property, Clarkstown Supervisor George Hoehmann, other Clarkstown officials and members of a Rockland County political party, members of CUPON, and CUPON’s counsel met to concoct a plan to prevent ABY’s purchase of the Property.

... In parallel to the manufactured public pressure from CUPON, the Town denied ABY’s permit application through a blatant misapplication of its zoning laws....

Following its knowing interference with and evisceration of ABY’s contract topurchase the  Property and months of delay, the Town purchased the Property for itself. For the Town, this is but the latest example in a demonstrable pattern of wreaking havoc on religious property applicants to prevent their engagement in the Clarkstown community. 

Lower Hudson News reports on the lawsuit.

Harrisburg Catholic Diocese Files For Bankruptcy Reorganization

Yesterday, the Catholic Diocese of Harrisburg (PA) filed for bankruptcy reorganization in federal bankruptcy court. In announcing the move, Bishop Robert Gainer said in part:

Over the past few years, our Diocese has been forced to confront our horrific past regarding clergy sexual abuse. Today, we are facing some difficult financial realities. Despite making every attempt to scale back operations and reduce overhead, we are currently unable to meet our financial obligations.

... Our current financial situation, coupled with changes in the law both here and in New Jersey, where we are already named in one lawsuit and where we anticipate more to follow, left us with no other path forward to ensure the future of our Diocese. Despite the success of the Survivor Compensation Program, which helped 111 survivors of clergy child sexual abuse, or 96% of those who participated in the Program, we already are in receipt of half a dozen new lawsuits, any one of which could severely cripple the Diocese.

As Bishop, I must ensure the Diocese’s core mission is upheld, which is to remain focused on Christ’s mandate to preach, teach, sanctify, and to serve those in need. We must work to bring the Chapter 11 process to a conclusion, as soon as is reasonably possible and in a way that allows us to be present to the community, as we have been for the past 152 years.

Links to all the pleadings and other documents in the case are available here.  Reporting on the filling, AP says that the diocese joins at least 20 others across the country that have filed for bankruptcy. The diocese says it has assets of less than $10 million with liabilities between $50 and $100 million.

Parents Sue School District Over Its Transgender Policy

A group of parent filed suit this week against the Madison, Wisconsin school district challenging the district's policy on transgender students.  The complaint (full text) in Doe I v. Madison Metropolitan School District, (WI Cir. Ct., filed 2/18/2020) contends that the district's policy violates state constitutional provisions protecting parental rights and their free exercise of religion. The complaint describes the district's policy as follows:

The policy enables children, of any age, to socially transition to a different gender identity at school without parental notice or consent, requires all teachers to enable this transition, and then prohibits teachers from communicating with parents about this potentially life-altering choice without the child’s consent. Even more, the Madison School District directs its teachers and staff to deceive parents by reverting to the child’s birth name and corresponding pronouns whenever the child’s parents are nearby.

The complaint goes on to allege:

As a direct result of their religious beliefs, if these Plaintiffs’ children ever experience gender dysphoria, they would not i mmediately “affirm” whatever beliefs their children might have about their gender, but would instead remind them that they were “fearfully and wonderfully made,” see Psalm 139:14, and seek to help them identify and address the underlying causes of the dysphoria and learn to accept and embrace their God-given sex.

... At the same time, Plaintiffs w ill never stop loving their children, or love them any less, no matter what they believe about their gender.

LGBTQ Nation reports on the lawsuit.

11th Circuit: Pensacola Cross May Stay

In Kondrat'yev v. City of Pensacola, Florida, (11th Cir., Feb. 19, 2020), the U.S. 11th Circuit Court of Appeals, in a case with a complicated procedural history, held that a 34-foot cross in Pensacola's Bayview Park does not violate the Establishment Clause. Originally a 3-judge panel of the 11th Circuit, relying on past precedent, reluctantly ordered the cross removed. (See prior posting.)  The case was appealed to the Supreme Court which summarily vacated the judgment and remanded the case to the 11th Circuit for further consideration in light of its decision in American Legion v. American Humanist Assn. (See prior posting).  Now the 11th Circuit has decided that the cross may stay.  However, two of the judges filed a concurring opinion questioning the circuit's precedent on when plaintiffs have standing to bring an Establishment Clause challenge, saying in part:

we should—whether in this case or some other— convene en banc in order to bring our own Establishment Clause standing precedent into line with the Supreme Court’s and to clarify that  offen[se],”“affront[],” and “exclu[sion]” fail to satisfy Article III’s injury-in-fact requirement.

Pensacola News Journal reports on the decision.

3rd Circuit: Employee's Flu Vaccine Objections Were Not Religious

In Brown v. Children's Hospital of Philadelphia, (3rd Cir., Feb. 14, 2020), the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of a religious discrimination claim brought by a hospital employee who was fired for refusing to obtain a flu vaccination.  The court held that Naija Brown's objections were not "religious". She practiced an "African Holistic Heath" lifestyle. She claimed that while she did not have a pastor to validate her beliefs, she filed an "advance vaccine directive" prepared by Natural Solutions Foundation. The court concluded that her opposition to the vaccine were medical, not religious. PennLive reports on the decision.

Recent Articles of Interest

From SSRN:

• Richard Moon, The Law Society of BC v. Trinity Western University: Complicated Answers to a Simple Question, (July 30, 2019).
• Jean Stefancic, Law, Religion, and Racial Justice: A Comment on Derrick Bell's Last Article, (Case Western Reserve Law Review, Vol. 69, No. 2, 2018).
• Greg Walsh, Trinity Western University and the Future of Conservative Religious Education, (2020).
• Lloyd Hitoshi Mayer & Zachary B. Pohlman, What Is Caesar's, What Is God's: Fundamental Public Policy for Churches, (Notre Dame Legal Studies Paper No. 200211 (2020).
• Abhinav Chandrachud, The Many Meanings of Constitutional Morality, (January 18, 2020).
• Muhammad Sohail & Ataullah Khan Mahmood, Islamic Criminal Jurisprudence on the Offence of Trafficking in Persons: An Interpretation of Fasad fil Arz and Hadd Offence, (Pakistan Journal of Islamic Research (2019)).
• Ataullah Khan Mahmood & Ijaz Ali Chishti, Blasphemy Law and Its Interpretation a Pakistan’s Perspective, (Al Tafseer, Vol 34 (2019)).

Parishioners Sue Claiming Wrongful Removal of Priest

An unusual lawsuit was recently filed against the Archdiocese of Detroit by 20 parishioners of a Detroit Roman Catholic parish. The suit filed in a Michigan state trial court claims plaintiffs suffered extreme emotional distress when their priest was falsely accused of sexually abusing a minor and was removed . The complaint (full text) in Dux v. Bugarin, (MI Cir. Ct., filed 1/31/2020), alleges that the Archdiocese, afraid of being attacked by the press for failure to respond to sex abuse charges, twisted allegations and engaged in improper investigatory interrogations to fabricate a rape charge against Fr. Eduard Perrone.  It further alleges that Michael Bugarin, the priest charged with conducting the investigation of Fr. Perrone, is a conservative who was opposed to reforms in the Church advocated by plaintiffs and by Fr. Perrone. The complaint also claims that defendants fraudulently failed to disclose that funds solicited in their annual Catholic Services Appeal would be used for the investigation of Fr. Perrone. Detroit Free Press reports on the lawsuit.

British Court Refuses Financial Support Orders For Non-Complying Religious Marriage Ceremonies

Under Britain's Matrimonial Causes Act, a party to a "void marriage" may obtain a decree of nullity from a family court which entitles the party, among other things, to seek an order for financial support.  In Attorney General v. Akhter, (EWCA, Feb. 14, 2020), Britain's Court of Appeal held that a party to an Islamic marriage ceremony held in a restaurant rather than a building registered as a marriage site and without other required formalities may not obtain a decree of nullity because the original ceremony not was not sufficient to even create a "void marriage."  The husband and wife had planned to follow the religious ceremony with a civil ceremony,  but never followed through on those plans. They remained together for 18 years and had four children before the wife sued for divorce. The court also posted a Media Summary of the decision.

Reporting on the lawsuit, International News quotes a critic of the decision

Today’s judgment will force Muslim and other women to turn to Sharia ‘courts’ that already cause significant harm to women and children for remedies because they are now locked out of the civil justice system.

Air Force Changes Rules To Accommodate Religious Headgear and Beards

As reported by the Air Force Times, the Air Force earlier this month (Feb. 7) amended its Dress and Personal Appearance rules to allow airmen to request a waiver to permit wearing of conservative religious apparel, (Full text of amended Air Force Instruction.) The amended rules specifically address the wearing of hijabs, beards, and turbans or under-turbans/ patkas with uncut beard and uncut hair. The Army issued similar rules in 2017. (See prior posting.) [Thanks to Scott Mange for the lead.]

5th Circuit Dismisses Street Preacher's Suit Over Summons

In Roy v. City of Monroe, (5th Cir., Feb. 13, 2020), the U.S. 5th Circuit Court of Appeals affirmed the dismissal of a suit by a street preacher who was issued a summons, but then acquitted, of disturbing the peace. He then sued the police and the city of Monroe, Louisiana for violation of his free speech and free exercise as well as for other violations.  The 5th Circuit summarized it conclusions:

[T]he city of Monroe’s “disturbing the peace” ordinance is not unconstitutionally vague; that, because Sergeant Booth had probable cause to issue a summons under the ordinance, he was entitled to qualified immunity from Roy’s First Amendment retaliation claim; and that, in the light of these holdings, Roy cannot prevail on his claims under the Fourth Amendment and Due Process Clause.

AP reports on the decision.

International Religious Freedom Alliance Founded

Last week, Secretary of State Mike Pompeo announced that 26 nations have joined the United States to create the International Religious Freedom Alliance.  The nations pledged to uphold a Declaration of Principles committing them to take both proactive and reactive actions to uphold freedom of belief, thought, conscience and religion as protected by international law and United Nations International Covenant on Civil and Political Rights. [Thanks to Law & Religion UK for the lead.]

Prof Loses Fight Against School Rules On Transgender Discrimination

In Meriwether v. Trustees of Shawnee State University, (SD OH, Feb. 12, 2020), an Ohio federal district court judge adopted a magistrate's recommendation and dismissed a lawsuit by a college professor who was disciplined by a university when he refused to abide by the school's non-discrimination policy.  The philosophy professor refused to address a transgender student using the student's preferred gender identity title and pronouns. Instead he used only the student's last name. The court said in part:

[The faculty member's] speech-- the manner by which he addressed a transgender student-- was not protected by the First Amendment.  Further, he did not plead facts sufficient to state a claim for a violation of his right to free exercise of religion ... or for a violation of his rights to due process or equal protection.

Metro Weekly reports on the decision.

Suit Seeks Data On Anti-Semitic Hate Crimes In New York

A New York state Freedom of Information Law lawsuit was filed last week by The Forward newspaper seeking information on the rise in anti-Semitic hate crimes in New York City.  The complaint (full text) in The Forward Association, Inc. v. New York City Police Department asks for an order granting the paper immediate access to the requested records. The Forward reported on its lawsuit.

9th Circuit OK's School's Policy On Transgender Students

In Parents for Privacy v. Barr, (9th Cir., Feb. 12, 2020) the U.S. 9th Circuit Court of Appeals upheld an Oregon school district's policy of allowing transgender students to use school bathrooms, locker rooms and showers that correspond to their gender identity. The court issued a summary along with its full opinion, saying in part:

 [T]here is no Fourteenth Amendment fundamental privacy right to avoid all risk of intimate exposure to or by a transgender person who was assigned the opposite biological sex at birth.....  [T]he Student Safety Plan provided alternative options and privacy protections to those who did not want to share facilities with a transgender student, even though those alternative options admittedly appeared inferior and less convenient....

... [T]the Fourteenth Amendment does not provide a fundamental parental right to determine the bathroom policies of the public schools to which parents may send their children, either independent of the parental right to direct the upbringing and education of their children or encompassed by it.

Texas Sues California In Supreme Court Over Travel Ban To States Allowing LGBTQ Discrimination

This week, the state of Texas filed an original suit in the U.S. Supreme Court against the state of California challenging California's ban on the state paying for travel by its employees to other states that allow discrimination against LGBTQ individuals or families. The complaint (full text of complaint and brief in support) in State  of Texas v. State of California, (US Sup. Ct., filed/2/10/2020) reads in part:

California has enacted and is enforcing economic sanctions against Texas, Texas citizens,and Texas businesses. California has targeted Texas and its residents because To Texas protects the religious freedom of faith-based child welfare providers within its borders....

California’s sanctions against Texas and Texans are born of religious animus and violate the Constitution’s Privileges and Immunities Clause, U.S. Const. art. IV, § 2, cl. 1; Interstate Commerce Clause, id. art. I, § 8, cl. 3; and guarantee of Equal Protection, id. amend. XIV, § 1.

The complaint and brief in support of the state's motion for leave to file a bill of complaint which is attached to the complaint seeks an order forcing California to take down its travel ban or remove Texas from it. Texas Attorney General's office has issued a press release announcing the filing of the suit.

Free Exercise Claim As To Marijuana Use Is Rejected

In State of Ohio v. Cook, (OH App., Feb. 10, 2020), an Ohio state appellate court rejected a defendant's claim that his use of marijuana-- which he claimed was part of his Shamanism religion-- violated his free exercise rights. The court said in part:

Even assuming that Cook’s “religious” beliefs are sincerely held, and even assuming that the law restricts his practice, there is certainly a compelling state interest in regulating the use of Schedule I controlled substances. Moreover, the drug laws are facially religion-neutral, and do not target any specific sect of any religion. Thus we find that they are narrowly tailored.... For these reasons we cannot find that the trial court erred in overruling Cook’s suppression motions. 

Zoning Requirement Violates RLUIPA

In Hunt Valley Baptist Church, Inc. v. Baltimore County, Maryland, (D MD, Feb. 10, 2020), a Maryland federal district court rejected federalism and Establishment Clause challenges to the constitutionality of RLUIPA against federalism and Establishment Clause challenges.The court went on to hold that the county's zoning ordinances that require a special exception process for churches to build in a conservation zone, but does not require this for schools, violate RLUIPA's equal terms provisions.

Recent Articles of Interest

From SSRN:

• Scott D. Gerber, Law and Religion in Plymouth Colony, (8 British Journal of American Legal Studies 167 (2019)).
• Kyriake Topidi, Customary Law, Religion and Legal Pluralism in Israel: Islamic Law and Shari'a Courts in Constant Motion, (Revista General de Derecho Público Comparado 26 (2019)).
• Nicholas Aroney, Christianity, Sovereignty and Global Law, (January 14, 2020).
• Hatim Hussain & Prateek Srivastava, Cryonics in India: Fulfilling the Ardent 'Legal' Desire to Live, (Book on Red Biotechnology (2018), Astral International Publishers).
• Shrutanjaya Bhardwaj, Individual Religious Freedom is Subject to Other Fundamental Rights, ((2019) 7 SCC Part-4 J-29).
• Collton Fehr, Re-Thinking the Process for Administering Oaths and Affirmations, (Dalhousie Law Journal, Forthcoming).
• Richard F. Duncan, Seeing the No-Compelled-Speech Doctrine Clearly Through the Lens of Telescope Media, (Nebraska Law Review, Forthcoming).
• Jay Augustine, And When Does the Black Church Get Political?: Responding in the Era of Trump and Making the Black Church Great Again (January 1, 2020). 17 Hastings Race & Poverty Law Journal 87 (2020).

6th Circuit: Non-Recognition Substantially Burdened Christian Identity Inmates

In Fox v. Washington, (6th Cir., Feb, 6, 2020), the U.S. 6th Circuit Court of Appeals held that the trial court had misapplied RLUIPA in upholding Michigan's refusal to recognize prison inmates' Christian Identity, white separatist religion. The prison system denied Christian Identity adherents the right to group worship and full immersion baptism. The court said in part:

... [P]laintiffs have met their burden ,,, to show that the Department has imposed a substantial burden on their religious exercise with respect to group worship for the Sabbath and holidays....

At step three of RLUIPA, the burden shifts to the Department to make two showings. First, it must prove that the imposition of the substantial burden on plaintiffs’ religious exercise was “in  furtherance of a compelling governmental interest.” ... Second, the Department must establish that it used “the least restrictive means of furthering that compelling governmental interest.”... The district court made no such rulings, and the record is not well developed on these issues. “As ‘a court of review, not of first view,’ we will remand the case to the district court to resolve the point in the first instance.”

"Neutral Principles" Approach Controls Issue of Joining Parent Church

In Korean New Life Methodist Church v. Korean Methodist Church of the Americas,(CO App., Feb. 6, 2020), a Colorado state appellate court held that the neutral principles of law approach should be used in deciding a dispute over whether a local church agreed to be under the authority of a national denomination.  It agreed that the trial court, using that approach, correctly determined that the local church never gave up control to submit to the authority of the parent church body, saying in part:

[W]e conclude that the question of submission does not involve a “religious dispute” covering ecclesiastical matters or involving church doctrine.... Rather, it involves an inquiry into the local church’s organizational intent as evidenced by church documents, testimony, and conduct.

Court Upholds Denial of Invocation Slot For Satanic Temple

In Satanic Temple v. City of Scottsdale, (D AZ, Feb. 6, 2020), an Arizona federal district court held that the Satanic Temple failed to prove by a preponderance of the evidence that the denial of their request to deliver a non-theistic invocation at a City Council meeting was because of their religious beliefs. The court rejected defendants' claims that the beliefs of the Satanic Temple do not constitute a religion. However the court credited the testimony of the Acting City Manager that he based his decision on a long-standing unwritten policy that only organizations that had substantial ties to the city could deliver invocations. This decision followed substantial public opposition to the Satanic Temple's appearance, including the orchestration by a church of 15,000 e-mails in opposition. The blog For Infernal Use Only reports on the decision.

UPDATE: In an April 9 opinion (full text), the court, with one exception, refused to amend its findings of fact or to amend its judgment.

Fruit Company Settles Suit Over Refusal To Accommodate Sevent Day Adventist

The EEOC announced yesterday that the North Carolina-based Cottle Strawberry Nursery has settled a religious discrimination lawsuit filed against it by the agency. The company was charged with firing a Seventh Day Adventist because she refused to work on Saturdays.  In the settlement it agreed to pay $12,500 in damages and develop a religious accommodation policy.

Trump, Pence Speak At National Prayer Breakfast

Both Vice President Pence and President Trump spoke at the National Prayer Breakfast in Washington, D.C. yesterday. Pence (full text of remarks) said in part:

As the President has said many times, in his words, “We are a nation of faith.”  And I can assure you that this President, this Vice President, and our entire administration believe in prayer and we rely on the prayers of the American people every day.

In fact, President Trump has made it a practice of opening every Cabinet meeting in prayer.

President Trump spoke later in the morning (full text of remarks). This passage has probably captured the most press attention:

Weeks ago, and again yesterday, courageous Republican politicians and leaders had the wisdom, the fortitude, and strength to do what everyone knows was right.  I don’t like people who use their faith as justification for doing what they know is wrong.  Nor do I like people who say, “I pray for you,” when they know that that’s not so.

Washington Post reports on the Prayer Breakfast.

VP Pence Promotes New School Choice Scholarship Proposal

Vice President Mike Pence yesterday delivered a 20-minute address on School Choice at Saint Francis DeSales School in Philadelphia, PA. (Full text of remarks.) He particularly focused on the proposal for Education Freedom Scholarships that President Trump promoted in his State of the Union address on Tuesday.

German Court Refuses To Order Removal of Anti-Semitic Church Carving

AFP reports that an intermediate appellate court in the German state of Saxony-Anhalt has refused to order the removal of a 13th century anti-Semitic bas relief on a church in the town of Wittenberg. The court concluded that the carving, known as the Judensau (Jews' sow), did not harm Jews' reputation because it was embedded in a broader memorial and was accompanied by a sign put up in 1988 explaining it in context.

Court Dismisses Challenge To City's Refusal To Fly Christian Flag

In Shurtleff v. City of Boston, (D MA, Feb. 4. 2020), a Massachusetts federal district court dismissed a suit challenging refusal by the city of Boston to fly a Christian themed flag on a flag pole outside city hall for a Constitution Day and Citizenship Day event sponsored by plaintiffs. The court held that the city's flag display constituted government speech that is not subject to the strictures of the First Amendment.  It also held that the city's actions did not violate the Establishment Clause or Equal Protection clause. The 1st Circuit Court of Appeals last June affirmed the denial of a preliminary injunction in the case. (Full text of 1st Circuit opinion).

Noise Restrictions On Sidewalk Abortion Counselors Upheld

In Henderson v. McMurray, (ND AL, Feb. 4, 2020), an Alabama federal district court upheld a Huntsville, Alabama special events ordinance and the provision in a permit allowing plaintiffs, pro-life sidewalk abortion counselors, to use amplification only if they cannot be heard in adjacent buildings. The court concluded that the challenged restrictions do not violate plaintiffs' rights to free speech or free exercise of religion.

Court Accepts RFRA Defenses of Volunteers Feeding Migrants

In United States v. Hoffman, (D AZ, Feb. 3, 2020), an Arizona federal district court reversed the criminal convictions of four volunteers aiding migrants through the faith-based organization No More Deaths/No Más Muertes. A federal magistrate judge had fined and imposed probation on the defendants for violating federal regulations barring entry into a national wildlife refuge without a permit and barring abandoning property there. Summarizing its holding, the court said in part:

Defendants ... appeal from convictions for violations of the regulations governing the Cabeza Prieta National Wildlife Refuge.... The violations were committed in the course of leaving supplies of food and water in an area of desert wilderness where people frequently die of dehydration and exposure. Defendants, who are volunteers with a charitable organization affiliated with the Unitarian Universalist Church, admit the factual allegations made by the Government.... Defendants argue that those actions, taken with the avowed goal of mitigating death and suffering, were sincere exercises of religion and that their prosecution is barred by the Religious Freedom Restoration Act.... The Court finds that Defendants demonstrated that their prosecution for this conduct substantially burdens their exercise of sincerely held religious beliefs, and that the Government failed to demonstrate that prosecuting Defendants is the least restrictive means of furthering any compelling governmental interest.

Law, Rights & Religion Project issued a press release announcing the decision.

Recent Articles of Interest

From SSRN:

• Phil Lord, What Is the True Purpose of Quebec's Bill 21?, ([2020] Directions, (Forthcoming)).
• Manal Cheema, Fill in the Blank: Compelling Student Speech on Religion, (105 Va. L. Rev. Online 175 (2019)).
• Fajri Muhammadin & Mohd Hisham Mohd Kamal, The Western Universalism v. Cultural Relativism Debate on Human Rights and Islam - An ‘Aqidah-Based Approach, (Afkar: Jurnal of Aqidah and Islamic Thought, Vol. 21 (2), 2019, pp.175-216).
• Michael McNally, Native American Religious Freedom as a Collective Right, (2019 BYU L. Rev. 205 (2019)).
• Farrah Ahmed, Arbitrariness, Subordination and Unequal Citizenship, (January 7, 2020).
• Abhinav Chandrachud, Secularism and the Citizenship Amendment Act, (January 4, 2020).
• Samuel D. Brunson, 'I’d Gladly Pay You Tuesday for a [Tax Deduction] Today': Donor-Advised Funds and the Deferral of Charity, (Wake Forest Law Review, Forthcoming).

Orthodox Jewish Family Ejected From Flight Sue American Airlines

An Orthodox Jewish family filed suit in a Texas federal district court last week charging American Airlines with religious, racial and national origin discrimination, as well as defamation, negligence and intentional infliction of emotional distress. The suit comes after the husband, wife and their 19-month old daughter were removed from an American Airlines flight. The complaint (full text) in Adler v. American Airlines, Inc., (SD TX, filed 1/28/2020) alleges that the Adlers were told by an American Airlines agent to deplane. Once off the plane, they were told that they had been ejected on instructions from the pilot because of extremely offensive body odor. In exchanges that followed, the Adlers rejected the claim, but the airline's agent allegedly told the Adlers "that he knew that Orthodox Jews take baths once a week." The complaint goes on to allege that an online search for "body odor" turns up the Adlers' name. Courthouse News Service and Detroit Free Press report on the lawsuit.

Trump Extends Some Travel Ban Restrictions To Six More Countries

In an exceptionally long Presidential Proclamation (full text), President Trump on Friday extended tailored restrictions under his controversial travel ban to immigrants (but not temporary visitors) from six additional countries. As explained by a News Release from the Department of Homeland Security:

.... For four countries – Burma, Eritrea, Kyrgyzstan, and Nigeria – the President has imposed travel restrictions on immigrant visas.

The reason is straightforward – individuals who have entered the U.S. on immigrant visas are challenging to remove even if, after admission into the U.S., the individual is linked to disqualifying information such as terrorist connections, criminal ties, or misrepresented information. 

 And because each of these countries have deficiencies in sharing terrorist, criminal or identity information, it is likely that information reflecting that a visa applicant is a threat may not be available at the time the visa or entry is approved. This is unacceptable.

 Two countries – Sudan and Tanzania – performed marginally better and the President decided to impose travel restrictions on Diversity Visas.  This is a less severe sanction compared to the general restriction on immigrant visas, given the significantly fewer number of aliens affected....

... [T]his Proclamation only restricts entry on certain categories of immigrant visas. Family members can still visit their loved ones, businesses can still employ qualified candidates, and other visits can take place on a temporary basis with a non-immigrant visa.

DHS also issued this shorter news release. Vox has more on the President's action.

Recent Hearings By House Foreign Affairs Committee

The House Foreign Affairs Committee has held two hearings of interest in recent days:

• Ending Global Religious Persecution (Jan. 28, 2020) Video of full hearing. Further coverage at Blog from the Capital.
  
• Resisting Anti-Semitism and Xenophobia in Europe (Jan. 29, 2020). Video of full hearing.

Church Leaders Sentenced To Prison In Scheme To Siphon Off Church Funds

The U.S. Attorney's Office for the District of New Jersey announced this week:

The leader and the main treasurer of the Israelite Church of God in Jesus Christ were sentenced to federal prison today for their respective roles in a scheme in which both men caused the church to pay millions of dollars in personal expenses for the leader that the leader then omitted from his personal tax returns.

The two men had previously pleaded guilty to one count of conspiring to defraud the United States of at least $250,000 in taxes.  Jermaine Grant, the church leader, was sentenced to 18 months in prison. The treasurer, Lincoln Warrington, was sentenced to 12 months and one day.

Court Denies Preliminary Injunction To Pastor Targeted For Ministering To Migrants

In Dousa v. U.S. Department of Homeland Security, (SD CA, Jan. 28, 2020), a California federal district court refused to grant a preliminary injunction to a Christian pastor who claimed that her right to freely exercise her religion was substantially burdened by federal government's surveillance, brief detention and harassment of her. She contended that the government's actions amounted to retaliation for her activities ministering to asylum seekers and migrant on the Mexican side of the U.S. southern border. Denying a preliminary injunction, the court said in part:

Dousa has not shown at this stage that the Government has substantially burdened her Free Exercise rights. The harms she alleges—a “canceled trip to Mexico, refrain[ing] from blessing migrant marriages, hav[ing] her pastoral counseling chilled,” ... are subjective, and the Ninth Circuit is clear that “a subjective chilling effect on free exercise rights is not sufficient to constitute a substantial burden.”

However the court refused to completely dismiss her allegations of 1st Amendment and RFRA violations, saying in part:

It bears repeating that a preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to relief.” ... The conclusion here that Dousa is not entitled to an injunction is simply a finding that she has not made that “clear showing” at this stage; it is not a finding that she cannot make that showing down the line, perhaps with the advantage of additional discovery.

Courthouse News Service reports on the decision.

4th Circuit Hears Arguments In Challenge To Trump's Travel Ban

The U.S. 4th Circuit Court of Appeals yesterday heard oral arguments (audio of full oral arguments) in International Refugee Assistance Project v. Trump.  In the case, a Maryland federal district court refused to dismiss Establishment Clause, due process and equal protection challenges to President Trump's third travel ban Proclamation. (See prior posting.) The case had been remanded by the U.S. Supreme Court in light of its rejection of an Establishment Clause challenge in a parallel case. Brown County Democrat reports on the oral arguments.

DC Circuit Rejects NLRB's Test For Jurisdiction Over Adjunct Faculty At Religiously-Affiliated Colleges

In Duquesne University of the Holy Spirit v. NLRB, (DC Cir., Jan. 28, 2020), the Court of Appeals for the DC Circuit, in a 2-1 decision, held that the National Labor Relations Board lacks jurisdiction over adjunct faculty at Duquesne University.  In doing so, the majority rejected the test developed by the National Labor Relations Board in its 2014 Pacific Lutheran decision. The NLRB took the position that it lacks jurisdiction over adjunct faculty at non-profit religiously-affiliated colleges only if both the school holds itself out to the public as a religious institution and the particular faculty group petitioning performs a specific religious role. The majority held that the role played by the particular faculty may not be considered:

Pacific Lutheran impermissibly intrudes into religious matters. The Board suggests that it can avoid constitutional problems by considering only whether a religious school “holds out” faculty members as playing a specific religious role, ... but such an inquiry would still require the Board to define what counts as a “religious role” or a “religious function.” ... Defining which roles qualify would be far outside the competence of Board members and judges.

Judge Pillard dissenting said in part:

The Board’s approach has several advantages.... It recognizes the significant structural and functional differences between adjuncts and full faculty at many schools, as well as the heterogeneity of schools’ religious exercise. It thereby not only respects precedent and protects religious exercise, but also affords schools leeway to delineate for themselves the scope of the academic teaching corps that embodies their religious mission. In contrast to the automatic presumption of religiosity that the court adopts today, the Board’s approach adds a measure of tailoring at the exemption’s outer edge, eliminating needless sacrifice of adjuncts’ NLRA rights but extending the exemption to them where called for by a religious role the school itself identifies.

Pittsburgh Post-Gazette reports on the decision.

Trump Releases Middle East Peace Plan Including Plans For Jerusalem and Holy Sites

President Trump today released his his 181-page Israeli- Palestinian peace plan titled Peace To Prosperity. (Full text of plan.) The briefer Fact Sheet released by the White House summarizes the plan's provisions on Holy Sites in Jerusalem:

Israel will continue to safeguard Jerusalem’s Holy Sites and will guarantee freedom of worship for Jews, Christians, Muslims, and people of all faiths.

• The status quo at the Temple Mount/Haram al-Sharif will be preserved.

• The special and historic role of the King of Jordan with regard to the Muslim Holy Shrines in Jerusalem will be preserved.

• All Muslims are welcome to peacefully visit al-Aqsa Mosque.

The full plan includes this language as part of its description of arrangements for Jerusalem and its holy sites:

Unlike many previous powers that had ruled Jerusalem, and had destroyed the holy sites of other faiths, the State of Israel is to be commended for safeguarding the religious sites of all and maintaining a religious status quo.

Given this commendable record for more than half a century, as well as the extreme sensitivity regarding some of Jerusalem’s holy sites, we believe that this practice should remain, and that all of Jerusalem’s holy sites should be subject to the same governance regimes that exist today. In particular the status quo at the Temple Mount/Haram al-Sharif should continue uninterrupted.

Jerusalem’s holy sites should remain open and available for peaceful worshippers and tourists of all faiths. People of every faith should be permitted to pray on the Temple Mount/Haram al-Sharif, in a manner that is fully respectful to their religion, taking into account the times of each religion’s prayers and holidays, as well as other religious factors.....

... We believe that returning to a divided Jerusalem, and in particular having two separate security forces in one of the most sensitive areas on earth, would be a grave mistake.

While a physical division of the city must be avoided, a security barrier currently exists that does not follow the municipal boundary and that already separates Arab neighborhoods (i.e., Kafr Aqab, and the eastern part of Shuafat) in Jerusalem from the rest of the neighborhoods in the city.

This physical barrier should remain in place and should serve as a border between the capitals of the two parties.

Jerusalem will remain the sovereign capital of the State of Israel, and it should remain an undivided city. The sovereign capital of the State of Palestine should be in the section of East Jerusalem located in all areas east and north of the existing security barrier, including Kafr Aqab, the eastern part of Shuafat and Abu Dis, and could be named Al Quds or another name as determined by the State of Palestine. 

Presidential Message On International Holocaust Remembrance Day

Yesterday the White House issued a Presidential Message on International Holocaust Remembrance Day, 2020. (Full text). It says in part:

This year’s annual observance of International Holocaust Remembrance Day is especially moving as we commemorate the 75th anniversary of the liberation of Auschwitz....

Unfortunately, there are still Jewish men, women, and children who face persecution and discrimination today.  To fight the rise of anti-Semitism in the United States, I issued an Executive Order in December of 2019 that will help combat racist, anti-Semitic discrimination.  Anti-Semitism will never be tolerated, and this action bolsters my Administration’s efforts to create a culture of respect that deeply values the dignity in every human life.

Jewish Day School May Move Ahead With Some Claims In Dispute With New York Village

A press release from First Liberty describes the claims that gave rise to an opinion by a New York federal district court last week:

The lawsuit, filed in November 2018, alleges that government officials in the Village of Airmont, New York and the Suffern Central School District engaged in a deliberate effort to dissuade Orthodox Jewish residents from staying in or moving to the Village of Airmont. Central UTA owns 21 acres of property within the Village of Airmont that for nearly 20 years served as both a children’s school and day camp. The Village granted multiple approvals for the private, non-Orthodox school to operate. However, since Central UTA purchased the property in 2016 and advised the Village of its plans to build new buildings, Village officials have repeatedly used discriminatory zoning tactics to prevent Central UTA from operating.

In a similar effort, the local school district, Suffern Central, denied Central UTA children transportation and special education services even though it provided these same services to the previous school.

In Central UTA of Monsey v. Village of Airmont, New York, (SD NY, Jan. 23, 2020), the court held that claims growing out of the attempt to obtain approval for building two new school buildings and renovating an existing building should be dismissed for lack of ripeness. However the court allowed plaintiffs to move ahead with their RLUIPA, 1st Amendment and 14th Amendment claims growing out of a Notice of Violation issued as to the operation of a school for 200 to 300 students in an existing building and the failure to provide transportation and special needs services. The Notice of Violation placed the school at risk for over $2 million in fines.