Egypt Passes Church Construction Law

Egypt's Parliament yesterday approved a new law governing the building and renovation of Christian churches. 10% of Egypt's population is Coptic Christian.  Reuters reports that the law allows provincial governors (instead of the security services) to approve or deny church building and renovation permits. Coptic Church officials see then new law as progress, but Christian activists would have preferred a unified law governing both mosque and church construction. Restrictions in the new law are still more extensive than those which apply to mosque construction.   In the past, suspected Christian church building has led to sectarian riots.

Suit Charges Discriminatory Application of Driver's License Photo Accommodation

The ACLU yesterday filed a federal lawsuit against the Lee County, Alabama officials in charge of issuing drivers' licenses claiming that they are unconstitutionally administering the state's religious accommodation provision allowing head coverings in license photos.  The complaint (full text) in Allen v. English, (MD AL, filed 8/30/2016, alleges that plaintiff Yvonne Allen is a devout Christian who as part of her religious practice covers her hair with a headscarf.  When Allen requested to wear her head covering for her license photo, officials told her that the religious accommodation for head coverings only applies to Muslims.  The suit alleges that this practice violates the religion clauses of the federal and state constitutions. ACLU issued a press release announcing the filing of the lawsuit.

FOIA Suit Seeks All State Department Records On Combating Genocide

Yesterday, a conservative civil rights and religious liberty advocacy group filed a lawsuit seeking to enforce its Freedom of Information Act request for all State Department records and communications reflecting efforts to carry out the terms of the Genocide Convention, to hold ISIS accountable for atrocities it has committed, and to respond to the ISIS genocide of Christians.  The complaint (full text) in American Center for Law & Justice v. U.S. Department of State, (D DC, filed 8/30/2016), sets out in 22 paragraphs the scope of the records sought in its July 18 FOIA request sent to the State Department, and adds that the State Department "has a reputation for flaunting and disregarding its public accountability and FOIA obligations." The lawsuit follows actions by ACLJ in recent weeks pressing the United Nations to take action to respond to ISIS genocide against Christians and others.

So Far, 6 Charged Under Russia's New Law Limiting Missionary Activities

As previously reported, in July Russia's President signed into law new anti-terrorism legislation that, among other things, banned preaching, praying, proselytizing, and disseminating religious materials outside of officially-designated locations.  Last week, Forum 18 reported that so far six people have been charged under the new limits on missionary activity. Two Baptists, and a third person merely identified as Protestant, have had fines imposed on them.  A Hare Krishna adherent was acquitted.  Charges against two others-- a Pentecostal and a Seventh Day Adventist-- are still pending.  The Forum 18 posting has extensive details on each case.

Court Issues Narrow Preliminary Injunction Against North Carolina's Transgender Bathroom Access Law

In an 83-page opinion handed down last week, a North Carolina federal district court issued a narrow preliminary injunction preventing enforcement North Carolina's transgender bathroom access law against two students and one employee of the University of North Carolina.  In Carcano v. McCrory, (MD NC, Aug. 26, 2016), the court concluded that the provisions requiring transgender individuals to use school bathrooms, locker rooms and showers corresponding to the biological sex listed on their birth certificate likely violate Title IX as interpreted by the U.S. Department of Education and upheld by the 4th Circuit.  In reaching its conclusion, the court relied heavily on evidence that the prior practice of dealing with bathroom use by transgender students on a case-by-case basis had worked well.

The court however rejected plaintiffs' contention that the North Carolina law violates the equal protection clause, saying in part:

it appears that the privacy interests that justify the State’s provision of sex-segregated bathrooms, showers, and other similar facilities arise from physiological differences between men and women, rather than differences in gender identity....

The court reserved judgment on plaintiffs' substantive due process claims relating to informational privacy and unwanted medical treatment.  Baptist Press reports on the decision.

According to AP, plaintiffs yesterday filed an appeal with the 4th Circuit on the equal protection issue.

Appeals Court Refuses To Dismiss Suit Over Entitlement To Mosque Property

In United Islamic Society v. Masjed Abubakr Al-Seddiq, Inc., (MN App. Aug. 29, 2016), a Minnesota state appellate court affirmed a trial court's refusal to dismiss a suit over ownership of mosque property because "it is premature to decide that resolution of this case will necessarily involve improper government entanglement with religion."  The suit involves a dispute between two non-profit corporations over which one is is the rightful beneficiary of properties held in trust for the benefit of the Rochester, Minnesota Muslim community.  The court said in part:

A determination of whether this case can be resolved using neutral principles of law depends upon a close reading of UIS’s civil complaint and trust petition. In its civil complaint, UIS makes no mention of any religious doctrine and does not request relief for religious reasons. UIS instead requests a determination that it is the intended beneficiary of the trust based on the lease, warranty deeds, meeting minutes, and MAAS resolution....

Defendants argued that because the transfer of the properties to the North American Islamic Trust included a requirement that the properties are to be held in "waqf," the court will need to interpret the meaning of waqf, a religious term, to resolve the dispute.  The appellate court however disagreed, saying:

If the district court declares the declaration of trust valid, there appears to be no reason to interpret or analyze “waqf.” Similarly, if the district court declares the declaration of trust invalid ... a beneficiary determination likely depends on testimony and the documents in the record regarding the parties’ intent, which may include, among others, the warranty deeds that reference “Waqf (Islamic trust).” ...The limited information in the record about “waqf” simply does not suggest that a doctrinal analysis of “waqf” will be necessary to or dispositive of a beneficiary determination.

The court also rejected the argument that the case should be dismissed because of an arbitration clause in the declaration of trust, saying:

Because appellants did not invoke the arbitration clause in the declaration of trust until MAAS and NAIT’s summary-judgment motion, which was filed more than two years after the start of UIS’s civil action and after extensive litigation in both cases, we conclude that the district court’s finding that appellants waived their right to invoke the arbitration clause is not clearly erroneous.

Recent Articles, Books and Upcoming Conference of Interest

From SSRN:

• Jeffrey Benjamin Meyers, Nietzsche and the Law of the ‘The Other’: The Jew in Refraction, (August 19, 2016).
• Carl J. Minniti, The Lanham Act's Unconstitutional Hodgepodge, (17 Rutgers Journal of Law and Religion 315, 2016).
• Claudia E. Haupt, Unprofessional Advice, (University of Pennsylvania Journal of Constitutional Law, Vol. 19, 2017).
• Evelyn Aswad, The Role of U.S. Technology Companies as Enforcers of Europe's New Internet Hate Speech Ban, (Forthcoming in Columbia Human Rights Law Review Online).
• Dr. R.N. Mangoli &Tanushri Anchan, Honour Based Violence: A Threat to Humanity, (August 23, 2016).
• Eduardo M. Penalver, Laura Spitz, Elizabeth Brundige & Lucia Domínguez Cisneros, U.S. Nonprofit Activity in Cuba: The Cuban Context, (Cornell Legal Studies Research Paper No. 16-31, 2016).

Recent & Forthcoming Books:

• Nelson Tebbe, Religious Freedom in an Egalitarian Age, (Harvard Univ. Press, Jan. 2017).
• Harvey Cox, The Market as God, (Harvard Univ. Press, Sept. 2016).
• Finbarr Curtis, The Production of American Religious Freedom, (NYU Press, Aug. 2016).
• Robert W. Hefner (ed.), Shari'a Law and Modern Muslim Ethics, (Indiana Univ. Press, Aug. 2016).
• Robert Schmuhl, Fifty Years with Father Hesburgh-- On and Off the Record, (Univ. of Notre Dame Press, Aug. 2016).

Upcoming Conference:

• 2016 Conference of Religiously Affiliated Law Schools, Regent University, Sept. 29-30.

Court Upholds California's Removal of Belief Exemption From Vaccination Requirement

In Whitlow v. State of California, (SD CA, Aug. 26, 2016), a California federal district court refused to grant a preliminary injunction against California's recently enacted SB 277 , a law requiring school students (other than those being home-schooled) to be immunized against ten specific diseases, and removing the state's prior exemption for those whose personal beliefs oppose immunization. The court said:

it is clear that the Constitution does not require the provision of a religious exemption to vaccination requirements, much less a PBE.

San Diego Union Tribune reports on the decision. [Thanks to Scott Mange for the lead.]

Recent Prisoner Free Exercise Cases

In Daker v. Warren, (11th Cir., Aug. 22, 2016), the 11th Circuit reversed and remanded the district court's dismissal of a Muslim inmate's free exercise challenge (but not his RLUIPA challenge) to a total ban on hardcover books and the dismissal of his RLUIPA challenge (but not his free exercise challenge) to holding religious services only on Wednesdays.

In Berger v. Burl, 2016 U.S. Dist. LEXIS 111380 (ED AR, Aug. 22, 2016), an Arkansas federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 111559, Aug. 5, 2016) and dismissed an an atheist inmate's claim that his rights were infringed when he was not allowed to grow a beard and long hair for non-religious reasons while others were permitted to do so for religious reasons.  The court allowed him to proceed on his complaint that a Christian group was allowed to line up outside his cell to sing and preach when he was placed in lock down.

In Robertson v. Call, 2016 Kan. App. Unpub. LEXIS 682 (KS App., Aug. 19, 2016), a Kansas appellate court affirmed dismissal of a free exercise challenge by a Messianic Jewish inmate to a rule that prevents prisoners in segregation from having face-to-face meetings with their spiritual advisers.  The court remanded for further findings an Establishment Clause challenge to the rule.

In Martin v. MacLaren, 2016 U.S. Dist. LEXIS 112812 (WD MI, Aug. 24, 2016), a Michigan federal district court adopted a magistrate's recommendation and dismissed an inmate's complaint that he was denied access to his book titled "The Fundamentals of the Yoruba Religion (Orisa Worship)."

In Al-Azim v. Everett, 2016 U.S. Dist. LEXIS 113109 (ED VA, Aug. 23, 2016), a Virginia federal district court allowed an inmate to move ahead with his complaint that he was not receiving meals that complied with Nation of Islam dietary requirements. However the court dismissed his complaints about the need for more time for group religious activities and his inability to purchase CDs of Minister Farrakhan's sermons directly from the Final Call, Inc.

In Blalock v. Smith, 2016 U.S. Dist. LEXIS 114215 (ND NY, Aug. 24, 2016), a New York federal magistrate judge recommended that a Muslim inmate be allowed to proceed with his complaint that he was not permitted to wear his pants hemmed above the top of his ankle as religiously required; but recommended dismissing complaints over his inability to attend two congregate prayer services and over a cell search that confiscated religious books.

In Greene v. County of Durham Office of the Sheriff Department, 2016 U.S. Dist. LEXIS 114425 (MD NC, Aug. 26, 2016), a North Carolina federal district court permitted a Muslim inmate to proceed with a claim that arose when he was a pre-trial detainee that he was denied access to the day room for Islamic studies, but dismissed for failure to exhaust administrative remedies his complaint that his Ramadan meal was thrown away and he was not given a replacement.

Texas Anti-SLAPP Law Does Not Protect Free Exercise Rights

In Davis v. Mount Gilead Baptist Church, (TX App., Aug. 25, 2016), a Texas state appellate court held that Texas' anti-SLAPP statute-- designed to prevent the use of frivolous suits to chill speech rights-- only applies to suits filed in response to defendant's exercise of free speech, right of petition or right of association.  It does not apply to suits that respond to free exercise of religion.

Legislative Scorecard On Issues Important To Non-Theists Released

The Center for Freethought Equality last week released its scorecard for U.S. House members in the 114th Congress on seven votes of importance to secular and non-theistic Americans. In releasing the scorecard, CFE said in part:

Representatives were scored based on their voting records on legislation that either bolstered or weakened the separation of church and state. The scorecard included legislators’ co-sponsorship for the Darwin Day Resolution (H.Res. 548), which would recognize February 12 as a celebration of the accomplishments of naturalist Charles Darwin while opposing the teaching of creationism and intelligent design in public schools....

Of all the legislators ranked, Rep. Judy Chu (CA-27) and Rep. Mike Honda (CA-17) had the highest scores.

Denial of Zoning Variance To Yeshiva Violates RLUIPA

In Yeshiva Gedolah Na'os Yaakov v. Township of Ocean NJ, (D NJ, Aug. 25, 2016), a New Jersey federal district court held that that Ocean, New Jersey's Zoning Board of Adjustment violated RLUIPA when it denied a use variance to allow plaintiffs to operate a Jewish post-high school yeshiva.  Making findings about the school's code of conduct for its students, the court ordered the township to grant approval of use of the building for a school of up to 80 students (less than the 96 the school wanted), subject to a detailed list of improvements and changes to the property. Reporting on the decision, Asbury Park Press quoted plaintiffs' attorney who said in a prepared statement:

Zoning regulation should never be used as a tool to accommodate the unreasonable fears and prejudice of small-minded individuals desperate to keep a certain population out of their neighborhoods.

Top French Court Invalidates Burkini Ban

France's top administrative court-- the Council of State-- today overturned the ban on burkini swim suits imposed by the town of Villeneuve-Loubet.  According to France 24, the court ruled that restrictions on individual liberties are justified only if there is a "proven risk" to public order. Some 30 French towns have adopted similar restrictions on the full-body swimsuit worn by Muslim women, justifying them as a provocation in light of recent terrorist attacks in France.  Today's ruling presumably sets precedent that will invalidate all of these. (See prior related posting.)

UPDATE: Here is the full text (in French) of the Council of State's decision in the case.

Canadian Mounties Approve Hijab As Optional Uniform Choice

Global News reported this week that the Royal Canadian Mounted Police has approved the hijab as a uniform option to encourage Muslim women to consider the RCMP as a career option.  Three types of hijabs were tested before approving one which maximizes officer safety and can be removed quickly if needed. The RCMP since 1990 has allowed Sikh officers to wear a turban. [Thanks to Scott Mange for the lead.]

Atheists Sue Pennsylvania House Over Invocation Policy

Yesterday, American Atheists and Americans United filed a federal lawsuit challenging the practice of the Pennsylvania House of Representatives to allow theists but not non-theists to give opening invocations at daily sessions of the House.  The complaint (full text) in Fields v. Speaker of the Pennsylvania House of Representatives, (MD PA, filed 9/25/2016), contends that the practice violates the Establishment Clause, the free speech and free exercise clauses, and the equal protection clause. American Atheists issued a press release announcing the filing of the lawsuit. AU has an interview with three of the individual plaintiffs in the case.

French Town Official Threatens To Sue Those Circulating Photos of Burkini Ban

In France in recent weeks, a number of seaside towns have barred Muslim women from wearing the "burkini"-- a swimsuit that covers them from knees to chest. (See prior posting.) The bans have variously been supported by reference to the French principle of laïcité (secularism in the public sphere), or by arguments that the burkini represents the "enslavement of women," or that the swimwear is a provocation in light of recent Islamist terrorist attacks in France. Now, photos of police enforcing the ban in Nice which were widely published in European media have become the center of additional controversy as the deputy mayor of Nice yesterday issued a statement (full text in French) threatening to sue anyone who shares the photos online.  He contends that the photos "provoke defamatory remarks and threats" against the police.  As reported by The Verge:

In the image, taken by a French photographer, four male police officers surround the woman and appear to issue a fine. With the men still standing over her, the woman was photographed removing her long tunic top. The agency that released the pictures in the UK said ... that the woman was fined and left the beach, but the office of Nice's mayor denied that she had been forced to remove her clothes, telling AFP that she was only showing the officers that she was wearing a swimsuit under her clothes. Notably, the woman was not wearing a burkini, but a long-sleeved tunic, headscarf, and leggings. The legal basis for Estrosi's lawsuit threats remains unclear.

Investigation Says NYPD Does Not Stick To Guidelines In Surveilling Muslims

The New York Police Department yesterday released an Inspector-General's report titled An Investigation of NYPD’s Compliance with Rules Governing Investigations of Political Activity.  Some 95% of the police investigations reviewed by the IG involved "individuals... predominantly associated with Muslims and/or engaged in political activity that those individuals associated with Islam." Here is an excerpt from the report:

[B]efore NYPD can begin investigating political activity – which could include surveillance within a mosque, church, or synagogue – it must articulate, in writing, the objective basis of need for the investigation and must secure approvals from senior NYPD officials. Further, permission is not open-ended; rather, it runs for a certain period of time, at the end of which NYPD must apply for (and justify) an extension or otherwise end the investigation. The thresholds for obtaining and extending permission in this area are not particularly high. The rules were amended after September 11, 2001, to accommodate the increased threat to the City.

OIG-NYPD’s investigation found that NYPD, while able to articulate a valid basis for commencing investigations, was often non-compliant with a number of the rules governing the conduct of these investigations.

VICE News discusses the NYPD report.

Court Refuses To Dismiss Minister's Suit Saying Ministerial Exception Is Not A Jurisdictional Bar

In McKnight v. Old Ship of Zion Missionary Baptist Church, 2016 Conn. Super. LEXIS 2065 (CT Super., July 28, 2016), a Connecticut appellate court held that it is bound by language in a footnote of the U.S. Supreme Court's Hosanna-Tabor decision that "the [ministerial] exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar."  The Connecticut court thus refused to dismiss for lack of jurisdiction a suit by a minister for lost wages and benefits against the church that previously employed him.

British Report On Islamist Extremism In Prisons

On Monday, Britain's Ministry of Justice released a summary of the main findings of a classified report on Islamist extremism in British prisons. (Full text of Summary).  The study of the issue was commissioned last year and the classified report was presented in March. The study found that Islamist extremism is a growing problem in prisons.  The Summary's section on Muslim Chaplaincy in prisons reports in part:

Throughout the review the team emphasised the importance of faith to prisoners, and its potential to transform lives for the better. Its premise was that Islamism – a politicised, expansionist version of Islam – is more ideology than faith, and is driven by intolerance and anti-Western sentiment.

There are around 69 full time, 65 part-time and 110 sessional Muslim prison chaplains. About two thirds follow the Deobandi denomination, often regarded as a traditional and conservative interpretation.... 

The review concluded that while most chaplains were dedicated members of staff and did good and useful work, there is also evidence of a weak understanding and effective approach to IE.

[Thanks to Law & Religion UK for the lead.] 

Court Enters Findings For Priest As Sanction For SNAP's Refusal To Comply With Discovery Order

Last year, St. Louis Catholic priest Xiu Hui "Joseph" Jiang, who had been charged with abusing a boy, but then had charges dropped, filed a federal lawsuit against a number of defendants, including the boy's parents and the victim advocacy group SNAP.  The suit charged SNAP with conspiracy, defamation and infliction of emotional distress. (See prior postings 1, 2).  As reported by the St. Louis Post-Dispatch, Jiang has been attempting through discovery to obtain information on people who had made complaints against him to SNAP.  The court ordered SNAP to produce that (and other) information, but it has refused.  So Jiang moved for the imposition of sanctions under Rule 37 of the Federal Rules of Civil Procedure.  In Jiang v. Porter, (ED MO, Aug. 22, 2016), a Missouri federal district court judge imposed unusual sanctions:

[T]he Court will direct that the facts alleged supporting elements of plaintiff’s claims against the SNAP defendants have been established for the purpose of this action.... 

[T]he Court will direct that it has been established that the SNAP defendants conspired with one another and others to obtain plaintiff’s conviction on sexual abuse charges and that they entered into this conspiracy due to discriminatory animus against plaintiff based on his religion, religious vocation, race and national origin.