Court Strikes Down Indiana's So-Called Anti-Discrimination Ban on Abortions

In Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Department of Health, (SD IN, June 30, 2016), an Indiana federal district court issued a preliminary injunction against enforcing new regulation of abortions and abortion practices that were scheduled to take effect today.  One new prohibition (the so-called anti-discrimination provisions) bars abortion even before viability if the reason is the sex of the fetus, the fetus has been diagnosed with Down's syndrome or any other disability, or because of the race, color, national origin or ancestry of the fetus. The second provision requires abortion providers to inform their patients of these restrictions. The third provision alters the way in which healthcare providers must dispose of fetal tissue.  The court concluded:

nothing in Roe, Casey, or any other subsequent Supreme Court decisions suggests that a woman’s right to choose an abortion prior to viability can be restricted if exercised for a certain reason. The right to a pre-viability abortion is categorical.

Focusing on the fetal tissue disposal requirements, the court said that it:

can find no legal support for the State’s position that it has a legitimate state interest in “promoting respect for human life by ensuring proper disposal of fetal remains."

Chicago Tribune reports on the decision.

Alien Tort Suit Against Turkish Cleric Dismissed

In Ates v. Gulen, (MD PA, June 29, 2016), a Pennsylvania federal district court dismissed an Alien Tort Statute lawsuit (as well as related state law claims) that had been brought by three residents of Turkey against Fethullah Gulen, a Muslim cleric from Turkey presently living in Pennsylvania. Plaintiffs are followers of a Muslim sect known as the Dogan Movement which is critical of Gulen's Anatolian version of Islam.  Plaintiffs claim that Gulen, using influence he wielded over police, prosecutors and judges in Turkey, engaged in a campaign of persecution against plaintiffs, ultimately having them arrested and detained in Turkey for up to 20 months. The court elaborated;

Plaintiffs' action revolves around their key allegation that, in April of 2009, Golen "in effect issued instructions to his followers illegally to misuse the Turkish law enforcement system against the members of the Dogan Movement...."

The court concluded that it lacks jurisdiction under the Alien Tort Statute because there had been insufficient evidence of conduct that "touches and concerns" the territory of the United States to overcome the presumption that the Alien Tort Statute does not have extraterritorial application. The court found that the action is also barred by the act of state doctrine. Wall Street Journal reports on the decision.

Federal District Court Strikes Down Mississippi's Anti-LGBT Conscience Protection Law

In Barber v. Bryant, (SD MS, June 30, 2016), a Mississippi federal district court in a stinging 60-page opinion, issued a preliminary injunction against enforcement of Mississippi House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act.  The new law protects a wide variety of conduct, or refusals to provide goods and service, based on a religious or moral belief that: (1) marriage is a union of one man and one woman; (2) sexual relations should be reserved to heterosexual marriage; and (3) gender is an immutable characteristic determined by anatomy and genetics at the time of birth.  The court concluded that the law, which would have gone into effect today, violates both the Establishment Clause and the Equal Protection Clause. Summarizing the history of the bill, the court said:

In physics, every action has its equal and opposite reaction. In politics, every action has its predictable overreaction..... Obergefell has led to HB 1523.

The court summarized its conclusions:

HB 1523 grants special rights to citizens who hold one of three “sincerely held religious beliefs or moral convictions” reflecting disapproval of lesbian, gay, transgender, and unmarried persons.... That violates both the guarantee of religious neutrality and the promise of equal protection of the laws.

The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected – the State has put its thumb on the scale to favor some religious beliefs over others. Showing such favor tells “nonadherents that they are outsiders, not full members of the political community, and . . . adherents that they are insiders, favored members of the political community.” ... And the Equal Protection Clause is violated by HB 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons....

Responding to the state's argument that the law "is justified by a compelling government interest in accommodating the free exercise of religion," the court said that the state had "not identified 'even a single instance' in which Obergefell has led to a free exercise problem in Mississippi." The court added:

In this case, moreover, it is difficult to see the compelling government interest in favoring three enumerated religious beliefs over others....  It is not within our tradition to respect one clerk’s religious objection to issuing a same-sex marriage license, but refuse another clerk’s religious objection to issuing a marriage license to a formerly-divorced person. The government is not in a position to referee the validity of Leviticus 18:22 (“Thou shalt not lie with mankind, as with womankind: it is abomination.”) versus Leviticus 21:14 (“A widow, or a divorced woman, or profane, or an harlot, these shall he not take.”).

BuzzFeed and the Washington Post have additional coverage of the opinion.

Denial of Use Permit Did Not Impose "Substantial Burden" Under RLUIPA

In Livingston Christian Schools v. Genoa Charter Township, (ED MI, June 30, 2016), a Michigan federal district court held that a township's denial of a special use permit did not impose a substantial burden on the religious exercise rights of a Christian school.  The school sought to move to a building currently owned by a church and recently leased to the school. The court said in part:

The term “substantial burden” is not defined in the RLUIPA. The Sixth Circuit in Living Water Church of God v. Charter Twp. of Meridian articulated a standard which requires LCS to show that, “ . . . the government action place[s] substantial pressure on [it] to violate its religious beliefs or effectively bar[s] [it] from using its property in the exercise of its religion[.]” ... While it may be less convenient or more expensive for LCS to operate its school from a different location, the circumstances present here do not constitute a substantial burden.... Because LCS has not “proffered evidence showing that it cannot carry out its church missions and ministries due to the Township’s denial,” it has not established a substantial burden on its free exercise of religion.

The court also rejected the school's 1st and 14th Amendment challenges.

British Tribunal: Deportation of Imam Does Not Violate Islamic Center's Religious Freedom

In Hamat v. Secretary of State for the Home Department, (UK UT, June 6, 2016), Britain's Upper Tribunal (Immigration and Asylum Chamber) rejected a claim that the government is unlawfully interfering with the choice of a religious leader by the Afghanistan Islamic Cultural Centre by deporting its imam who was in the country illegally. Britain's Human Rights Act, Sec. 13, which implements provisions of the European Convention on Human Rights, provides in part:

If a court's determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.

The Tribunal held:

Whilst the effect of the appellant's removal inevitably has the effect of depriving the AICC and its membership of the imam of their choice, this was not the motive of the respondent's actions.... [T]he decision had not interfered with the freedom of choice of the Afghan Muslim community because their actions have not been prompted by a wish to favour one imam over another. The personality of the appellant has not influenced the decision....

The Tribunal went on to hold that Art. 9 of the European Convention on Human Rights (Freedom of thought, conscience and religion) would be violated only if the government's action would "make the free exercise of religion a practical impossibility." Here there are numerous options for the religious organization to recruit a replacement. [Thanks to Law & Religion UK for the lead.]

Belgian Council of State Says Proposed Ban On Ritual Slaughter Is Unconstitutional

JTA reported yesterday that in Belgium, the Council of State has issued an advisory opinion that proposed legislation to ban ritual slaughter would be overturned by the country's constitutional court as a violation of religious freedom.  The bill to end halal and kosher techniques in which animals are not stunned before slaughter was filed last month by the Green Party of the Flemish Region and is strongly supported by animal welfare minister, Ben Weyts of the New Flemish Alliance. It is largely a reaction to a legal fight by Muslim leaders in the Flemish region seeking to overturn the region's ban on the mobile temporary slaughtering areas that have been set up in previous years ahead of Eid al-Adha (the Festival of the Sacrifice). (Background.)

Canadian Court OK's Ontario's Refusal To Accredit Christian Law School

In Trinity Western University v. The Law Society of Upper Canada, (CA ON, June 29, 2016), a 3-judge panel of the Court of Appeal for Ontario upheld the decision of the Law Society of Upper Canada to deny accreditation to Trinity Western Law School because its religiously-grounded Community Covenant requires all students to "refrain from sexual intimacy that violates the sacredness of marriage between a man and a woman."  Finding that "the part of TWU’s Community Covenant in issue in this appeal is deeply discriminatory to the LGBTQ community," the Court held that the Law Society "did not violate its duty of state neutrality by concluding that the public interest in ensuring equal access to the profession justified a degree of interference with the appellants’ religious freedoms." In reaching that conclusion, the Court relied in part on the U.S. Supreme Court's 1983 Bob Jones University decision. Similar battles over accreditation of the Christian law school are in progress in the school's home province of British Columbia, as well as in Nova Scotia.  CBC News reports on yesterday's decision. [Thanks to Paul de Mello Jnr. for the lead.]

In Settlement, Good News Clubs Win Equal Access To After-School Facilities

In Cleveland, Ohio, Child Evangelism Fellowship has won equal treatment with non-religious community groups in use of public school facilities for after-school activities.  The consent order (full text) in Child Evangelism Fellowship of Ohio, Inc. v. Cleveland Metropolitan School District, (ND OH, June 28, 2016) provides that the school district will revise its equal access policy for community use of district facilities.  Under the revised policy, the school district will accept the services provided to students by Good News Clubs as in-kind payment of fees for using facilities to the same extent as it accepts services of non-religious groups. The federal court consent order also provides that the school district will pay nominal damages of $100 and attorneys' fees of $149,900 because its prior unequal treatment of Child Evangelism Fellowship violated the 1st and 14th Amendments. Liberty Counsel issued a press release announcing the consent order.

Supreme Court Denies Review In Two Abortion Cases

As reported by the New York Times, yesterday in the wake of its opinion in Whole Women's Health v. Hellerstedt striking down Texas' restrictions on abortion clinics (see prior posting), the Court denied review in cases from Mississippi and Wisconsin in which Courts of Appeal had similarly struck down restrictive state abortion laws.  The Court in its June 28 Order List denied certiorari in Currier v. Jackson Women’s Health Organization, (Docket No. 14-997) (SCOTUSblog case page) and Schimel v. Planned Parenthood of Wisconsin, (Docket No. 15-1200) (SCOTUSblog case page).

Criticism of Religious Scholarship Is Not Religious Discrimination

Hascall v. Duquesne University of the Holy Spirit, (WD PA, June 28, 2016), is a suit by a Duquesne University Law School faculty member, Susan Hascall, who was denied tenure. A Pennsylvania federal district court refused to dismiss her charges of gender discrimination and retaliation. However it did, among others, dismiss her religious discrimination claim, holding that:

Plaintiff's attempts to rely on her scholarship of Islamic law as a sincerely held religious belief are misplaced.... Scholarship in Islamic and Sharia law does not, on its own, create a sincerely held religious belief. Plaintiff has pointed to no evidence that she herself practices Islam as a religion. Indeed, Plaintiff states in her Amended Complaint that she has not converted to Islam.... Without a sincerely held belief in Islam, Plaintiff cannot establish a claim for religious discrimination.... Plaintiff may very well have been subject to ridicule and derision from her colleagues due to the subject matter of her choice of scholarship; however, such conduct is not prohibited by law.

Legal Intelligencer reports on the decision.

India's Supreme Court May Consider Constitutionality of Muslim Divorce Practices

India's Supreme Court today said it will examine whether it has jurisdiction to invalidate Muslim personal laws if they interfere with constitutional rights.  According to NDTV, the move comes in a suit challenging triple talaq, the practice that allows a Muslim husband to divorce his wife by pronouncing three times the phrase "I divorce you." (Background.) One of the cases raising the question was brought by a woman whose husband divorced her through triple talaq delivered by mail. The court will hear arguments on the issue on Sept. 6.

Supreme Court Denies Review In Washington State Pharmacy Case

The U.S. Supreme Court today denied review in Storman's Inc. v. Wiesman,  (Docket No. 15-682, cert. denied 6/28/2016), but over a 15-page dissent to the denial of certiorari written by Justice Alito and joined by Chief Justice Roberts and Justice Thomas. (Order List, scroll to pg. 7). In the case, the 9th Circuit upheld rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require pharmacies to deliver all prescriptions, even if the owner has a religious objection. An individual pharmacist with religious objections may refuse to fill a prescription only if another pharmacist working for the pharmacy does so. (See prior posting.)  In his dissent, Justice Alito argued in part:

there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State.

Washington Post reports on today's action by the Supreme Court. [Thanks to Marty Lederman via Religionlaw for the lead.]

British Court Rejects Challenge To Local Anti-Israel BDS Resolutions

In Britain today, a 2-judge panel of the England and Wales High Court rejected a challenge by a Jewish human rights group to anti-Israel resolutions passed by three local councils.  In Jewish Rights Watch (t/a Jewish Human Rights Watch), R (on the application of) v Leicester City Council, [2016] EWHC 1512 (Admin), June 28, 2016, petitioner challenged three resolutions: one by Leicester calling for a boycott of produce from Israeli West Bank settlements; one by Gwynedd calling for a trade embargo with Israel; and one by Swansea expressing concern that a company involved in building a light railway in Israel was also involved in contracts with Swansea. The court summarized Jewish Human Rights Watch's claims:

It is JHRW's case that the Councils singled out Israel for different treatment than that adopted in respect of other countries and, in particular, failed properly or sufficiently to consider the effect of the resolutions on the Jewish community. JHRW contends that the Councils failed to have due regard to the need to eliminate discrimination and harassment of Jewish people, and the need to foster good relations between those who are Jewish and those who are not; and that in doing so they failed to have any regard to the Public Sector Equality Duty, set out in s.149 of the Equality Act 2010, and their legal duties as public authorities, as set out in s.17 of the Local Government Act 1988.

Section 149 of the Equality Act has been interpreted to require public bodies to give advance consideration to equality issues before making policy decisions.  Section 17 of the Local Government Act bars local governments from considering the country or territory of origin in making contract decisions. The court concluded, however, that qualifying language in, and/or the non-binding nature of, the Resolutions prevented them from being in violation of law:

First, the evidence from each of the Defendant Councils was that the resolutions did not bind the Councils to abide by or act upon them. Leicester, Gwynedd and Swansea each operated through an Executive (which developed and implemented policy); and procurement was a function of the Executive rather than the full Council.

The second point is that two of the resolutions contained qualifying words. In the case of Leicester, the boycott resolution was qualified by the words, 'insofar as legal considerations allow'. In the case of Swansea the exhortation to support the position of the UN in relation to the settlement of East Jerusalem was qualified by the words, 'so long as to do so would not be in breach of any relevant legislation.'

Jewish Chronicle reporting on the decision, quotes JHRW which says it will file an appeal. JHRW's statement reads in part:

The local councils, recognising that such boycotts would be unlawful, insisted that their motions were non-binding and not actually implemented, and that the resolutions were in fact never intended to influence policy. So this was never about investment at all. Instead, it was about councils being able to make offensive and misleading declarations that divide communities for cheap political gain and put Jews in the UK in jeopardy – and all at the ratepayer’s expense.

[Thanks to Paul de Mello, Jnr. for the lead.]

Study Finds Global Restrictions On Religion Are Easing

The Pew Research Center last week released its latest report on Trends in Global Restrictions on Religion. The report covers calendar year 2014.  Summarizing its findings, the report says in part:

Of the 198 countries included in the study, 24% had high or very high levels of government restrictions in 2014 (the most recent year for which data are available), down from 28% in 2013.  There was a similar decline in the share of countries with high or very high social hostilities involving religion, which dropped from 27% to 23%. This is the second year in a row the number of countries with this level of religious restrictions has declined, after three years of steady increases.

Although only about a quarter of the countries included in the study fall into the most religiously restrictive categories, some of the most restrictive countries (such as Indonesia and Pakistan) are very populous. As a result, roughly three-quarters of the world’s 7.2 billion people (74%) were living in countries with high or very high restrictions or hostilities in 2014, down slightly from 77% in 2013.

The modest declines in countries with high restrictions or hostilities took place despite a marked increase in the number of countries that experienced religion-related terrorist activities, including acts carried out by such groups as Boko Haram, al-Qaida and the Islamic State (also known as ISIS or ISIL).

USCIRF Elects Reese As Chair

The U.S. Commission on International Religious Freedom announced last week that it has elected Rev. Thomas J. Reese, S.J., as Chair of the Commission.  Dr. Daniel Mark and Dr. James J. Zogby were elected as Vice-Chairs.

Court Moves To Invalidate Mississippi's Law For Recusal By County Clerks Who Object To Same-Sex Marriage

In a decision issued yesterday, a Mississippi federal district court took the first step toward issuing an injunction that would have the effect of preventing county clerks in Mississippi from relying on the provisions in Mississippi HB 1523 that allow them to recuse themselves from issuing marriage licenses to same-sex couples because of religious or moral objections to same-sex marriage. (See prior posting.)  The decision came in an attempt to reopen and expand the injunction issued by the federal district court in 2015 baring enforcement of Mississippi's statutory and constitutional provisions barring same-sex marriage.

In Campaign for Southern Equality v. Bryant, (SD MS, June 27, 2016), the court explained:

The constitutional violation this case addressed in 2014 and 2015 was whether the Fourteenth Amendment permitted a State to treat same-sex couples differently than opposite-sex couples with respect to the issuance and recognition of marriage licenses.

Today’s motion concerns the same issue. In HB 1523 § 3(8)(a), the State is permitting the differential treatment to be carried out by individual clerks.***

Section 3(8)(a) is a significant change sufficient to reopen this case and reconsider the language of the Permanent Injunction....  The undersigned, though, is not persuaded that the 81 non-party Circuit Clerks are presently bound by the Permanent Injunction.... [T]he better course of action is to ensure that the remaining 81 Circuit Clerks have received actual notice of a Permanent Injunction that binds them before they are held accountable for it. The parties shall confer on an appropriate procedure for providing that notice....

No one has argued that the Permanent Injunction is invalid, but the briefing now suggests that it lacks all necessary parties. Judicial economy may be served by an Amended Permanent Injunction which enjoins § 263A of the Mississippi Constitution and Mississippi Code § 93-1-1(2), incorporates appropriate language from Rule 65, and clarifies that the persons it binds must issue marriage licenses “on the same terms and conditions as opposite-sex couples.” Obergefell, 135 S. Ct. at 2605....

The point of adding Obergefell’s language is simple: the Supreme Court’s ruling will be enforced. Obergefell “is the law of the land and, consequently, the law of this circuit.” 791 F.3d at 627. Mississippi’s elected officials may disagree with Obergefell, of course, and may express that disagreement as they see fit – by advocating for a constitutional amendment to overturn the decision, for example. But the marriage license issue will not be adjudicated anew after every legislative session. And the judiciary will remain vigilant whenever a named party to an injunction is accused of circumventing that injunction, directly or indirectly.

BuzzFeed reports on the decision.

Supreme Court Invalidates Texas Abortion Access Law

In a 5-3 decision today in Whole Women's Health v. Hellerstedt, (Sup. Ct., June 27, 2016), the U.S. Supreme Court struck down key provisions in Texas' controversial statute regulating access to abortions.  The majority opinion, written by Justice Breyer, held that both the requirement for a physician performing an abortion to have admitting privileges in a near-by hospital and for abortion clinics to meet standards that apply to ambulatory surgical centers place a substantial obstacle in the path of women seeking a pre-viability abortion and place an undue, unconstitutional burden on abortion access. Justices Kennedy, Ginsburg, Sotomayor and Kagan joined Justice Breyer's opinion. Justice Ginsburg also filed a concurring opinion. Justice Thomas filed a dissenting opinion. Justice Alito also filed a dissenting opinion which Chief Justice Roberts and Justice Thomas joined.

Religious Tracts Cannot Be Distributed On Arena Plaza

In Ball v. City of Lincoln, Nebraska, (D NE, June 23, 2016), a Nebraska federal district court dismissed an attempt to enjoin authorities from enforcing a policy that, among other things, bars leafleting on a Plaza Area outside the Pinnacle Bank Arena unless requested by a person renting out the Arena or the artists or productions they represent. (Full text of Use Policy.) The Arena was jointly constructed by the city of Lincoln and the University of Nebraska.  Plaintiff Larry Ball handed out religious tracts in the Plaza Area on several occasions, and was cited for trespass.  The court upheld the Arena's policy, finding that the Plaza Area is a non-public forum and that the restrictions on its use are reasonable because they are neutral and do not curtail free speech in nearby areas. Lincoln Journal Star reporting on the decision says that an appeal is planned.

Recent Articles of Interest

From SSRN:

• Patrick McKinley Brennan, A Catholic Way to Cook a Hamburger? The Catholic Case against McLaw, (Villanova Law Review, Forthcoming).
• Corinna Lain, Death Row, Calls for Indifference, and Redemption of the Soul, (77 Ohio St. L.J. Furthermore, Forthcoming).
• Caroline Mala Corbin, Deference to Claims of Substantial Religious Burden, (Illinois Law Review Online, p.10, 2016).
• Danielle Weatherby & Terri Day, LGBT Rights and the Mini RFRA: A Return to Separate But Equal (Draft), (DePaul Law Review, Forthcoming).
• Dwight G. Newman, Judicial Method on Rights Conflicts in the Context of Religious Identity, (June 24, 2016).
• Courtney G. Joslin, Marriage Equality and its Relationship to Family Law, (129 Harv. L. Rev. F. 197 (2016)).

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

• Gabor Halmai, Constitutionalism, Law, and Religion in Israel: A State's Multiple Identities, (J Civil Legal Sci 2016).
• Mohamed Abdelaal, The Paradox of Freedom of Religion in Post-Revolutionary Egypt, (Pieter Coertzen, M. Christian Green, and Len Hansen (eds.) Religious Freedom and Religious Pluralism in Africa: Prospects and Limitations (African Sun Media, 2016)).
• Luke Beck, When is an Office or Public Trust 'Under the Commonwealth' for the Purposes of the Religious Tests Clause of the Australian Constitution?, (Western Sydney University School of Law Research Paper No. 04/2016 (2016)).
• Alfons Aragoneses, Convivencia and Filosefardismo in Spanish Nation-building, (Max Planck Institute for European Legal History Research Paper Series No. 2016-05 (2016)).
• Victor M. Muniz-Fraticelli, The (Im)Possibility of Christian Education, (June 21, 2016).
• Robert W. McGee, The Relationship between Religion and Views Toward Homosexuality: An Empirical Study of 98 Countries, (June 23, 2016).
• Robert W. McGee, Does Religion Influence Views Toward Homosexuality: An Empirical Study of 16 Countries, (June 23, 2016). 
• Peter M. Beattie, Anti-Semitism and Opposition to Israeli Government Policies - The Roles of Prejudice and Information, (June 15, 2016).
• Elen Seymour & Marina Nehme, The ACNC, the Senate, the Commission of Audit and the Not-for-Profit Sector, (Western Sydney University School of Law Research Paper No. 05/2016 (2015)).

Top Religious Leaders React To Brexit

Several top religious leaders have issued statements reacting to Thursday's vote in Britain to exit from the European Union.  Here are links:

• Archbishops of Canterbury and York
• Cardinal Vincent Nichols, Catholic Archbishop of Westminster
• Britain's Chief Rabbi Ephraim Mirvis
• Pope Francis