Trump Revives Dakota Pipeline, With Some Ambiguity As To Tribal Objections

As reported by the Washington Post, President Trump yesterday issued a Presidential Memorandum (full text) directing the Secretary of the Army to expedite approval of construction of the controversial Dakota Access Pipeline (DAPL).  One reason DAPL has been controversial is that it was routed to run a half mile from the Standing Rock Sioux reservation, impinged on sacred tribal burial and historical sites and also created oil spill concerns by the tribe. To deal with these concerns, in December the U.S. Army announced that it would not approve an easement for DAPL under Lake Oahe in North Dakota, urging developers to find an alternative route. (See prior posting.)

Yesterday's Presidential Memorandum leaves some ambiguity regarding protection of tribal rights.  The Memorandum broadly calls for the Army to "review and approve in an expedited manner, to the extent permitted by law and as warranted, and with such conditions as are necessary or appropriate, requests for approvals to construct and operate the DAPL, including easements or rights-of-way to cross Federal areas."  However it then appears to qualify this as to the Lake Oahe easement, instructing the Army to:

consider, to the extent permitted by law and as warranted, whether to rescind or modify the memorandum by the Assistant Secretary of the Army for Civil Works dated December 4, 2016 (Proposed Dakota Access Pipeline Crossing at Lake Oahe, North Dakota)....

The Guardian reports that supporters of the Standing Rock Sioux say they will fight the President's action.  Tribal chairman Dave Archambault said: "President Trump is legally required to honor our treaty rights and provide a fair and reasonable pipeline process."

Survivors' Group Sued By Former Employee Charging Kickbacks From Victims' Attorneys

A lawsuit was filed last week in an Illinois state court by a former employee of SNAP (Survivors Network of those Abused by Priests) alleging that SNAP, instead of helping sex abuse survivors, exploits them.  The complaint (full text) in Hammond v. Survivors Network of Those Abused By Priests, (Cook Cty IL Cir. Ct., filed 1/17/2017) alleges that:

SNAP routinely accepts financial kickbacks from attorneys in the form of "donations." In exchange for kickbacks, SNAP refers survivors as potential clients to attorneys, who then file lawsuits on behalf of the survivors against the Catholic Church.

The complaint adds the allegation that "SNAP is motivated largely by the personal animus of its directors and officers against the Catholic Church."  Plaintiff claims retaliatory action was taken against her after she confronted her superiors with the claim that SNAP was colluding with survivors' attorneys. Kansas City Star reports in more detail on the lawsuit. SNAP says that the allegations in the lawsuit are not true.

Meanwhile, RNS reports that long-time Executive Director of SNAP,  David Clohessy, announced yesterday that he had left his position with the organization in December. He says his departure is unrelated to the lawsuit filed last week.

School Bus Driver Wants Religious Exemption From Fingerprints In Background Check

A former bus driver for the company that transports Altoona, Pennsylvania school students has filed a religious discrimination suit in federal district court in Pennsylvania.  According to yesterday's Altoona Mirror, a recently enacted state law required bus driver Bonnie F. Kaite to undergo a criminal background check.  She sought a religious accommodation because of her Christian religious beliefs, seeking a background check that does not require her to be fingerprinted. She says that she cannot be fingerprinted because of  the verse in the Book of Revelation prohibiting the "mark of the devil."

Malaysian Politician Wants Ruling On Sharia Court Conviction

In Malaysia, Parliament member Khalid Abdul Samad last month was fined RM2,900 (the equivalent of $650 (US)) by the lower shariah court for giving a religious talk without having religious credentials in violation of Section 119 (1) of the Selangor Islamic Law Administration Enactment. Khalid insists he was giving a talk about his trip to Palestine, and was not giving a religious talk. As reported yesterday by FMT News, Khalid now wants the Election Commission to rule on whether this conviction disqualifies him from serving in Parliament.  Malaysia's constitution provides that an MP is disqualified if convicted of an offense by a "court of law" and is sentenced to a jail term of one year or more, or is fined not less than RM2,000.  Khalid's supporters argue that his violation was not a penal offense, and the Selangor shariah lower court is not a "court of law."

Court Says Environmentalism Is Not A Religion

In Krause v. Tulsa City-County Library Commission, (ND OK, Jan. 23, 2017), a Oklahoma federal district court dismissed plaintiff's complaint that "fake" recycling bins in the downtown Tulsa library unconstitutionally burden his practice of his religion which he says is Environmentalism.  According to the court:

Plaintiff’s ... Complaint contains no factual support for Plaintiff’s conclusory assertion that Environmentalism is a religious, and not a secular practice or lifestyle....

Even if this Court were to accept that Environmentalism constitutes a religion or a religious practice, Plaintiff’s allegations do not support a plausible conclusion that the Defendant’s recycling program imposes a substantial burden on the exercise of a religious practice. 

Former Employees Sue Claiming They Were Required To Participate In Scientology Traininig

According to yesterday's Madison County Herald Bulletin, Paul and Chelsea Wysong who are former employees of the Anderson, Ohio-based Continental Design Co. filed a religious discrimination lawsuit in state court in Darke County, Ohio last week.  Plaintiffs charged that company CEO Judy Nagengast required them to participate in Scientology religious practices, such as audits and training. They were told to attend Scientology courses in California, Indiana and Florida. Nagengast denies the allegations and said she plans a counter-suit.

Trump Reinstitutes Ban On Foreign Aid To NGOs That Promote Abortion Services

As reported by the New York Times, in a Presidential Memorandum (full text) issued yesterday President Trump reinstated the so-called "Mexico-City Policy."  The policy bars U.S. foreign aid dollars from going to nongovernmental organizations that offer abortion counseling or  advocate the right to seek abortions in their home countries.  Other U.S. law already bans the use of taxpayer dollars to fund actual abortion services, but this policy prohibits funds going to organizations even if they use other funds to promote abortion. The policy, originally instituted in 1984 by President Ronald Reagan has been suspended by Democratic presidents and reinstituted by Republican presidents ever since.

Supreme Court Denies Review In Challenge To Utah's Polygamy Laws

The U.S. Supreme Court today denied review in Brown v. Buhman, (Docket No. 16-333, cert. denied 1/23/2017). (Order List).  In the case, the U.S. 10th Circuit Court of Appeals dismissed on mootness grounds the constitutional challenge to Utah's anti-polygamy laws that had been filed by the polygamous family from the television show "Sister Wives." (See prior posting.) Salt Lake Tribune reports on the denial of certiorari.

2nd Circuit Hears Arguments In Title VII Sexual Orientation Case

As reported by New York Law Journal, on Friday the U.S. 2nd Circuit Court of Appeals heard oral arguments in Christiansen v. Omnicom Group (audio of full oral arguments).  At issue was whether Title VII of the 1964 Civil Rights Act bars discrimination on the basis of sexual orientation. The district court in Christiansen v. Omnicom Group, Inc., (SD NY, March 9, 2016), relying on earlier 2nd Circuit precedent, held that Title VII does not bar discrimination on the basis of of sexual orientation.

Jordan's King Appoints New Chief Islamic Justice and New Mufti

According to Jordan Times, King Abdullah of Jordan issued a royal decree yesterday endorsing a Cabinet decision appointing Sheikh Abdul Karim Khasawneh as the chief Islamic justice.  The chief Islamic justice oversees the Sharia courts that deal mainly with personal status law.  Before his appointment, Khasawneh served as grand mufti, heading the Iftaa Department that has authority to issue religious edicts. In a second royal decree yesterday, Mohammad Khalaileh was appointed grand mufti to replace Khasawneh.

UPDATE:  The appointment of a new Islamic chief justice was triggered by the resignation of the prior chief justice, Ahmad Hilayel, after he delivered a Friday sermon that embarrassed the Jordanian government.  According to Al Jazeera (Jan. 23), Hilayel criticized leaders of the Gulf States for not sharing their wealth with Jordan.

Recent Articles of Interest

From SSRN:

• Arolda Elbasani, Governing Islam in Plural Societies: Religious Freedom, State Neutrality and Traditional Heritage, (Journal of Balkan and Near Easter Studies 19 (1): 4-18, 2017).
• Perry Dane, Call and Response: A D’Var Torah on Parshat Vayechi, (January 14, 2017).
• Mitchell Landrigan, Could the Implied Freedom of Political Discourse Protect the Speech of a Delisted Anglican Minister?, (January 13, 2017).
• Charles Cohen, Losing Your Children: The Failure to Extend Civil Rights Protections to Transgender Parents, (George Washington Law Review, Vol. 85, No. 2, 2017).
• Jessica A. Clarke, Frontiers of Sex Discrimination Law, (Michigan Law Review, Vol. 115, No. 6, Forthcoming).
• Victor Asal & Udi Sommer, Legal Path Dependence and the Long Arm of the Religious State (Excerpts), ("Legal Path Dependence & The Long Arm of the Religious State: Sodomy Provisions and Gay Rights Across Nations and Over Time", SUNY Press (October 20, 2016)).
• Johanna Pesendorfer & Othmar Manfred Lehner, Islamic Banking and Finance As an Ethical Alternative: A Systematic Literature Review, (ACRN Oxford Journal of Finance and Risk Perspectives 5.2 (2016): 42-64).

From SmartCILP:

• Chad DeVeaux, The Monster Unleashed: How Hobby Lobby Threatens the Freedom of Employees to Practice Religion, 1 Concordia Law Review 114-132 (2016).
• Terence E. Hogan, Gaudium et Spes: Reflections on Dialogue with Cuba, 11 Intercultural Human Rights Law Review 249-260 (2016).
• Ayelet Hoffmann Libson, "The Heart Knows its Own Bitterness": Authority, Self, and the Origins of Patient Autonomy in Early Jewish Law, 56 American Journal of Legal Hist. 303-325 (2016).
• Cardinal Peter K.A. Turkson, Laudato Si's Challenge to Social Conscience: Society and Nature Together, 11 Intercultural Human Rights Law Review 1-13 (2016).

Recent Prisoner Free Exercise Cases

In Ali v. West, 2017 U.S. Dist. LEXIS 6197 (ED WI, Jan. 17, 2017), a Wisconsin federal district court allowed a Muslim inmate to proceed against the prison chaplain, program director and warden on his claim that his request to be placed on the Ramadan participation list was initally ignored and then denied.

In Kemp v. Liebel, 2017 U.S. Dist. LEXIS 8021 (SD IN, Jan. 20, 2017), an Indiana federal district court dismissed on qualified immunity grounds a suit by Jewish inmates against the Director of religious services alleging that their free exercise rights were infringed when for 9 months they were denied congregate religious services and study because no outside religious authority had been found to evaluate and certify inmates who could lead them.

In Luginbyhl v. Glanz, 2017 U.S. Dist. LEXIS 8101 (ND OK, Jan. 20, 2017), an Oklahoma federal district court dismissed a complaint by a Hebrew Israelite inmate that he was denied a kosher diet and a seder plate and unleavened bread meals for Passover. Plaintiff had received a vegan religious diet.

In Fields v. Robinson, 2017 U.S. Dist. LEXIS 7946 (ED VA, Jan. 19, 2017), a Virginia federal district court dismissed a Muslim inmate's complaint over the conditions imposed for receiving the Common Fare diet. He could not miss over 25% of his meals and could not give his food away to other inmates.

In Timmons v. Bradshaw, 2017 U.S. Dist. LEXIS 8219 (SD FL, Jan. 19, 2017), a Florida federal magistrate judge recommended that an inmate be allowed to move ahead with his complaint that he was denied a kosher diet. He alleged that authorities applied a doctrinal knowledge test and required verification of his religion from a rabbi.

The Obama Administration Website Is Archived

As reported by CNN, as with past administrations the White House website of the Obama Administration disappeared when President Trump was sworn in, and whitehouse.gov now links to the Trump administration website.  However all the material that was on the Obama administration website has been archived by the National Archives and Records Administration and is now available at this archived URL: https://obamawhitehouse.archives.gov/.  Conveniently when readers click on links to material from the Obama administration (as in Religion Clause posts), they are automatically redirected to the post on the archived site.

Trump Attends Traditional Inaugural Interfaith Prayer Service

This morning, President Donald Trump attended an interfaith prayer service at the Washington National Cathedral.  The service is traditionally held the day after the presidential inauguration. Washington Post reports:

The national prayer service... included a rabbi, an imam, a Baha’i leader, a Hindu priest and everyone in between — but with no sermon, the service included little topical content directly addressing Trump’s incipient presidency. Instead, the service focused on biblical readings, patriotic music and Christian hymns, and prayers for the country and its leadership.

This earlier article from the Washington Post lists all the participants in the service.

Religion and Trump's Inauguration

Deseret News today has a lengthy article titled The role religion played in Trump's inauguration. Reviewing the music, the invocations, the swearing-in, the prayer service at St. John's Episcopal Church this morning, and more, the report says in part:

Church choirs sang, a half-dozen religious leaders prayed and Trump mentioned God in his inauguration speech..... Trump's religiously rich ceremony was notable for a president whose personal faith wasn't a prominent part of his campaign. He formed a powerful partnership with evangelical Christian leaders and promised to make it safe to say "Merry Christmas," but he sometimes stumbled when asked to share his own beliefs.

Washington Post has a full transcript as well as analysis of the sermon delivered by Southern Baptist Pastor Robert Jefress at this morning's prayer service at St. John's. His remarks included this hardly-veiled political reference:

When I think of you, President-elect Trump, I am reminded of another great leader God chose thousands of years ago in Israel. The nation had been in bondage for decades, the infrastructure of the country was in shambles, and God raised up a powerful leader to restore the nation. And the man God chose was neither a politician nor a priest. Instead, God chose a builder whose name was Nehemiah.

And the first step of rebuilding the nation was the building of a great wall. God instructed Nehemiah to build a wall around Jerusalem to protect its citizens from enemy attack. You see, God is NOT against building walls!

Meanwhile RNS and The Forward report that Ivanka Trump and her husband Jared Kushner (who are Orthodox Jews) received a ruling from a rabbi close to them that it was permissible for them to travel in a car from activities such as the post-inaugural balls even after sunset that begins the Jewish Sabbath.  The ruling came from concerns for protecting the couple’s safety.

Homeowners Sue Over Opposition To Their Christmas Display

A lawsuit alleging violations of the federal Fair Housing Act and the Idaho Human Rights Act has been filed by a Hayden, Idaho couple who are in a battle with their neighbors and their homeowners association over an elaborate Christmas display they put on every year to raise funds for two local charities.  The display, which includes a live nativity scene with a small camel, sheep, donkey, Santa Claus, and the Grinch, attracts large crowds.  The complaint (full text) in Morris v. West Hayden Estates First Addition Homeowners Association, Inc., (D ID, filed 1/13/2017), alleges religious discrimination, contending that the Homeowners Association objects to the couple's Christian beliefs being pressed on others in the neighborhood.  KHQ News report on the lawsuit.

West Virginia School District Sued Over Bible Lessons

As announced in a press release from Freedom From Religion Foundation, the organization has filed suit against the Mercer County, West Virginia schools challenging  the "Bible in the Schools" program which provides Bible study to elementary and middle school students in 19 schools.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Mercer County Board of Education, (SD WV, filed 1/18/2017), contends that Bible classes have been taught in the county schools for over 75 years, and that the Bible instruction by teachers who travel from school to school violates the Establishment Clause.

Court Orders Further Hearing In Suit By Church Member Challenging His Expulsion

In Campbell v. Shiloh Baptist Church, 2016 Conn. Super. LEXIS 3277 (CT Super. Ct., Dec. 1, 2016), plaintiff Thedress Campbell claims that Shiloh Baptist Church and its pastor removed him from the membership list and barred him from the church without following the church's bylaws.  Campbell had questioned expenditures by the pastor and had reported asbestos in the church to state authorities.  The Connecticut trial court held in part:

Although the Connecticut Supreme Court has articulated a preference for the application of the neutral principles approach in property disputes, it has not had occasion to articulate whether such an approach is to be followed in the resolution of other types of internal church conflicts. This court believes that it would....

... [T]he Constitution and Bylaws of the Church vests the authority for the expulsion or dismissal of members in the membership or congregation of the Church.... [T]he court is not deprived by the first amendment of jurisdiction to resolve whether the plaintiff was in fact expelled from the Church because this decision is not so intertwined with religious principles that it can make this determination without interfering with a legitimate claim to the free exercise of religion. Such an issue may be resolved in the present case by the application of neutral principles of law, here those of the secular laws of corporations. The evidence presented to the court did not address whether the voice of the Church was given expression by vote of its membership.... [T]herefore the court orders that the hearing be continued for the limited purpose of determining whether the Church had actually spoken, or whether the ... letter [informing him of his dismissal] was an ultra vires act of Pastor Porter and Deacon Jones.

Florida Supreme Court Denies Review In Tax Credit Scholarship Challenge

Yesterday in McCall v. Scott, (FL Sup. Ct., Jan. 18, 2017) the Florida Supreme Court declined to hear in appeal in a case challenging the constitutionality of Florida's Tax Credit Scholarship Program.  In August, a state appeals court held that a group of plaintiffs-- advocacy organizations, teachers, parents and religious and community leaders-- lack standing to pursue the case. (See prior posting.) Tampa Bay Times reports on the state Supreme Court's action.

Court Upholds Refusal To Accommodate Correctional Officer's Khimar

In Tisby v. Camden County Correctional Facility, (NJ App., Jan. 18, 2017), a New Jersey state appeals court upheld the refusal by the warden of a state correctional facility to grant a religious accommodation to a female Muslim corrections officer who sought to wear a khimar (a tight fitting head covering without a veil) at work.  The appeals court agreed that the requested accommodation would impose an undue hardship in light of the safety risks involved and the ability to hide contraband in head coverings. NJ.com reporting on the decision says that plaintiff will appeal to the state Supreme Court.