Fragmented Decision Upholds Business' Refusal to Print LGBT Pride T-Shirts

In a 2-1 decision yesterday, the Kentucky Court of Appeals concluded that a business which prints customized T-shirts was not in violation of a county's public accommodation law when it refused to print T-shirts for a local LGBT Pride Festival. At issue in Lexington Fayette Urban County Human Rights Commission v. Hands On Originals, Inc., (KY Ct. App., May 12, 2017), was the policy of a business which prints customized t-shirts, mugs, pens, and other accessories "to refuse any order that would endorse positions that conflict with the convictions of the ownership."

Chief Judge Kramer, writing the court's opinion, held that the business, Hands On Originals (HOO), never refused goods or services to a customer on the basis the customer's sexual orientation or gender identity because the order was placed by an organization which has no sexual orientation of gender identity. Neither did HOO deny goods or services because the customer was engaging in conduct engaged in exclusively or predominantly by a protected class of people. Judge Kramer explained, saying in part:

The acts of homosexual intercourse and same-sex marriage are conduct engaged in exclusively or predominantly by persons who are homosexual. But anyone—regardless of religion, sexual orientation, race, gender, age, or corporate status—may espouse the belief that people of varying sexual orientations have as much claim to unqualified social acceptance as heterosexuals. Indeed, the posture of the case before us underscores that very point: this case was initiated and promoted by Aaron Baker, a non-transgendered man in a married, heterosexual relationship who nevertheless functioned at all relevant times as the President of the GLSO.

Judge Lambert concurred only in the result and filed a separate opinion contending that HOO is protected in its conduct because of the Kentucky Religious Freedom Restoration Statute.  She said in part:

HOO refused to print the shirts because the HOO owners believe the lifestyle choices promoted by GSLO conflict with their Christian values.

Judge Taylor dissented, saying in part:

The majority takes the position that the conduct of HOO in censoring the publication of the desired speech sought by GLSO does not violate the Fairness Ordinance. Effectively, that would mean that the ordinance protects gays or lesbians only to the extent they do not publicly display their same gender sexual orientation. This result would be totally contrary to legislative intent and undermine the legislative policy of LFUCG since the ordinance logically must protect against discriminatory conduct that is inextricably tied to sexual orientation or gender identity. Otherwise, the ordinance would have limited or no force or effect.

 Lexington Herald Leader reports on the decision.

Suit Over War Memorial Depicting Cross Is Settled

The American Humanist Association announced on Thursday that a settlement has been reached in  American Humanist Association v. Borough of Roselle Park.  In the case, plaintiffs brought an Establishment Clause challenge to a war memorial on public property depicting a soldier kneeling over a grave marked by a Christian cross. (See prior posting.) The city took down the memorial after the lawsuit was filed.  Under the settlement agreement, the city agreed it will not erect the same display or a similar one in the future.

Pence At Conference On Persecution of Christians Says ISIS Is Guilty of Genocide

Vice President Mike Pence delivered a nearly 25-minute speech yesterday in Washington, D.C. at the first-ever World Congress of Persecuted Christians. (Full text of remarks). (Press release from Liberty Counsel.) The event is sponsored by the Billy Graham Evangelistic Association.  At one point in his prepared remarks, he said:

I believe ISIS is guilty of nothing short of genocide against people of the Christian faith, and it is time the world called it by name.

It is not clear whether he was announcing a formal labeling of ISIS activities as "genocide" which would then trigger obligations under the 1948 Convention on the Prevention and Punishment of Genocide.

Here are additional excerpts from the Vice President's speech:

I’m here on behalf of the President as a tangible sign of his commitment to defending Christians and, frankly, all who suffer for their beliefs across the wider world.  I stand here today as a testament to President Trump’s tangible commitment to reaffirm America’s role as a beacon of hope and light and liberty to inspire the world....

The reality is, across the wider world, the Christian faith is under siege.  Throughout the world, no people of faith today face greater hostility or hatred than the followers of Christ.  In more than 100 countries spread to every corner of the globe –- from Iran to Eritrea, Nigeria to North Korea –- over 215 million Christians confront intimidation, imprisonment, forced conversion, abuse, assault, or worse, for holding to the truths of the Gospel.  And nowhere is this onslaught against our faith more evident than in the very ancient land where Christianity was born....

In Iraq, at the hands of extremists, we’ve actually seen monasteries demolished, priests and monks beheaded, and the two-millennia-old Christian tradition in Mosul virtually extinguished overnight.  In Syria, we see ancient communities burned to the ground.  We see believers tortured for confessing Christ, and women and children sold into the most terrible form of human slavery.

Know today with assurance that President Trump sees these crimes for what they are: vile acts of persecution animated by hatred -- hatred for the Gospel of Christ.  And so too does the President know those who perpetrate these crimes.  They are them the embodiment of evil in our time.  He calls them by name -- radical Islamic terrorists....

But to be clear, adherents of other religions across the world have not been spared.  And we will speak for them and pray for them as well.  For as history attests, persecution of one faith is ultimately the persecution of all faiths.

Arson Awareness Week Focuses On Arson Prevention At Houses of Worship

The U.S. Fire Administration has designated May 7-13, 2017 as National Arson Awareness Week, and has made the theme for this year "Arson Prevention at Houses of Worship."

4th Circuit Hears Oral Arguments On North Carolina's Magistrate Recusal Law

The U.S. 4th Circuit Court of Appeals on Wednesday heard oral argument (audio of full arguments) in Ansley v. Warren (Docket No. 16-2082). In the case, a North Carolina federal district court dismissed for lack of standing an Establishment Clause challenge to North Carolina's S.B. 2 that allows magistrates who have religious objections to performing same-sex marriages to recuse themselves from performing any marriages. (See prior posting.)  AP reports on the oral arguments.

Court Rejects Commerce Clause Challenge To Dylann Roof's Church Shooting Conviction

A South Carolina federal district court has rejected challenges by Dylann Roof to his conviction in the widely publicized 2015 killing of 9 individuals in a Bible study class at Mother Emanuel AME Church in Charleston, South Carolina.  In United States v. Roof, (D SC, May 10, 2017), the court upheld against a commerce clause challenge Roof's conviction for violating 18 USC §247 which prohibits obstructing by force a person's free exercise of religion where the offense is in or affects interstate or foreign commerce. The court said in part:

Defendant argues that because his offense was noneconomic, because he did not travel in interstate commerce to commit it, and because he used items purchased in South Carolina, the Government failed to establish that the offense-- that is, the intentional, forcible obstruction of the free exercise of religion-- was in or affected interstate commerce....

Defendant used the internet to conduct research and identify Mother Emanuel as his target, a telephone to contact the church directly, and GPS navigation satellites to navigate interstate highways on his multiple trips to and from the vicinity of the church. He used a Russia-based service to host the online manifesto he posted shortly before the attack at Mother Emanuel, which explained his motives. In preparation for the attack, Defendant purchased hollow-point bullets, magazines, and a firearm that had all travelled in interstate commerce. Defendant entered Mother Emanuel carrying the firearm and loaded magazines in a tactical pouch that had travelled in interstate commerce. Inside the church, Defendant used the items he procured to kill nine parishioners....

Defendant argues that the proper test is whether the offense was in interstate commerce, not whether the items used to commit the offense were in interstate commerce.... The Court finds that argument unpersuasive.

Indonesian Governor Sentenced To 2 Years In Jail for Blasphemy

In Indonesia on Tuesday, Jakarta's outgoing governor, a Christian, was convicted of blasphemy and sentenced to two years in jail.  Comments about a verse in the Qur'an made during the campaign by the governor, Basuki Tjahaja Purnama (also known as "Ahok"), played a major role in his defeat by a Muslim candidate.  According to The Atlantic:

While on a work trip late last year, Purnama claimed that Jakarta’s Islamic leaders were misrepresenting a principle in the Koran for political gains. The verse in question, which comes from the fifth chapter of the Koran, suggests that Muslims should not have non-Muslim leaders. Purnama implied that his opponents were using the verse to discriminate against Christian candidates like himself. He later apologized for the comments, but did not admit to any wrongdoing.

Suit Challenges Zoning Laws As Discriminatory Against Orthodox Jews

Agudath Israel of America filed suit this week in a New Jersey federal district court contending that zoning ordinances enacted this year by the Township of Jackson, New Jersey were motivated by discriminatory animus against the Orthodox Jewish community and were designed "to prevent that community from being able to have the necessary educational institutions to teach their youth, and to discourage that community from residing in Jackson Township."  The complaint (full text) in Agudath Israel of America v. Township of Jackson, New Jersey, (D NJ, filed 5/8/2017), alleges in part:

The Ordinances are the latest action taken by the Township in a long campaign to erect a wall on its border with Lakewood Township, where many Orthodox Jews live, in order to discourage them from moving into Jackson. Its Mayor has told residents “Don’t sell” to the Orthodox Jewish community, its Township Council President said that a suggestion that Orthodox Jews move into communities such as Jackson was “reprehensible”....

The Lakewood Scoop reports on the lawsuit.

Creationist Scientist Sues National Park Service

A suit was filed this week in  an Arizona federal district court by Dr. Andrew Snelling, who is employed by the Christian apologetics organization Answers in Genesis, challenging his treatment by the National Park Service.  The complaint (full text) in Snelling v. U.S. Department of Interior, (D AZ, filed 5/9/2017), alleges that National Park Service officials denied, and then limited, plaintiff's permit to undertake research at four sites in the Grand Canyon "because of Dr. Snelling’s Christian faith and scientific viewpoints informed by his Christian faith." The complaint alleges violations of the 1st and 5th Amendments as well as RFRA.  ADF issued a press release announcing the filing of the lawsuit.

Missouri Legislature Restores Employment Discrimination Exemption For Religious Hospitals and Colleges

The Missouri legislature on Monday gave final passage to SB 43 (full text) which, among other things, restores the exemption for religiously affiliated hospitals and colleges from the state's employment discrimination law.  The existing version of the state's employment discrimination law excludes from the definition of "employer" any corporation or association "owned and operated by religious or sectarian groups." In a 2013 decision the Missouri Supreme Court in Farrow v. St. Francis Medical Center held that a Catholic hospital did not qualify for the exclusion because, while it may have been operated by a religious organization, it was not "owned" by a religious group. The statute just passed by the legislature (Sec. 213.010(8)) now provides an exclusion for "corporations and associations owned or operated by religious or sectarian organizations." The Pathway reporting on the bill says that Gov. Eric Greitens is expected to sign the bill in the near future.

Suit Claims Bishop Tried To Coerce Withdrawal of Clergy Abuse Charge

A suit was filed this week in a Minnesota state trial court against the Catholic Diocese of Crookston and its Bishop Michael Hoeppner.  The complaint (full text) in Vasek v. Diocese of Crookston, (MN Dist. Ct., filed 5/8/2017) alleges that plaintiff, who was studying to be a deacon, was told by Bishop Hoeppner that he must withdraw his previous charges of decades-old sexual abuse that he had previously made against an Ohio priest.  Hoeppner allegedly told plaintiff that if he did not, "the Bishop would have difficulty ordaining Plaintiff as a deacon for the Diocese of Crookston and that Plaintiff s son's priesthood in the Diocese of Crookston would be negatively impacted." Minneapolis Star Tribune reports on the lawsuit.

West Virginia Supreme Court: Sexual Orientation Not Covered By Civil Rights Law

In State of West Virginia v. Butler, (Sup. Ct. WV, May 9, 2017), the West Virginia Supreme Court of Appeals in a 3-2 decision held that "sex" in the state's civil rights statute does not include sexual orientation.  At issue is defendant's indictment for assaulting a same-sex couple.  The Court said in part:

In 1987, our Legislature exercised its right to define crimes when it enacted West Virginia Code § 61-6-21(b) through which it became a felony to violate a person’s civil rights by threat, intimidation and/or injury to another person or another person’s property because of specifically enumerated characteristics, including the victim’s “sex.” W.Va. Code § 61-6-21(b). In determining what is meant by the word “sex,” we are mindful that “‘[w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.’ 

Justice Workman joined by Justice Davis filed a dissenting opinion.

California Supreme Court Interprets "Day of Rest" Statute

In Mendoza v. Nordstrom, Inc., (CA Sup. Ct., May 8, 2017), the California Supreme Court issued an opinion answering questions certified to it by the U.S. 9th Circuit Court of Appeals on the meaning of California's "Day of Rest" statute.  At issue is the meaning of California Labor Code §551 which provides: "Every person employed in any occupation of labor is entitled to one day's rest therefrom in seven."  Looking at the history of the provision, the Court said:

Given that religious days of rest, though they vary between denominations, typically recur on the same day each week, the statute could be understood as extending a guarantee of a day of rest every week, on a day of the individual‘s choosing, or, equally, a day of rest at least every seventh day.

The Court concluded that the statute guarantees a day of rest sometime in each work week, so that an employee might work for more than 7 consecutive days. It also concluded that "An employer is not ... forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest."

Bermuda Court Legalizes Same-Sex Marriage

In a 49-page opinion handed down last week, a Bermuda trial court judge legalized same-sex marriage in the island nation (which is classified as a British Overseas Territory).  In Godwin v. Registrar General, (Bermuda Sup. Ct., May 5, 2017), the court held that the Registrar General violated the Human Rights Act of 1981 (HRA) when it denied a  marriage license to a same-sex couple. The court concluded that the provision of the HRA that prohibits discrimination on the basis of sexual orientation in the provision of services applies to the Registrar General's action.  The Royal Gazette reports on reaction to the ruling.

Good News Club Claims Unequal Treatment By School District

A suit was filed in an Indiana federal district court yesterday against the Pike County, Indiana School District by the Good News Clubs alleging discriminatory treatment by the school district. The complaint (full text) in Child Evangelism Fellowship of Indiana, Inc. v. Indiana Metropolitan School District of Pike County, (SD IN, filed 5/8/2017), alleges that the school district charged Good News Clubs a fee for after-school use of elementary school facilities while waiving the fee for other community organizations. It also contends that Good News Clubs were denied the right to distribute literature through the schools while other community groups with whom the school partnered were permitted to do so. The suit asserts violations of the 1st and 14th Amendment. Liberty counsel issued a press release announcing the filing of the lawsuit.

4th Circuit En Banc Hears Oral Arguments On Trump's Second Travel Ban

Today the U.S. 4th Circuit Court of appeals sitting en banc  (13 judges) heard oral arguments (audio of oral arguments from C-Span) in International Refugee Assistance Project v. Trump.  In the case, a Maryland federal district court granted a nationwide preliminary injunction barring enforcement of Section 2(c) of President Trump's second travel ban executive order. That section of the Executive Order imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen.  The district court concluded that there is a likelihood that the travel ban violates the Establishment Clause. (See prior posting.) Washington Post reports on the oral arguments, saying in part:

... [J]udge after judge during an extraordinary two-hour hearing asked Acting Solicitor General Jeffrey B. Wall about statements during the presidential campaign and afterward in which Trump talked about a Muslim ban.

Wall said the order for a 90-day ban on foreign travelers from certain countries was simply to protect the country by increasing the vetting of those who are potentially dangerous. That is not only within the president’s authority, Wall said, it is his responsibility.

But Judge Barbara Milano Keenan said that could mean a candidate for president could call for a Muslim ban every day for a year, enact a cleverly worded plan that accomplished that on his first day in office, and have courts ignore whether that was his real purpose.

Under intense questioning, Wall acknowledged it could violate the Constitution to single out a religion for adverse treatment, but said Trump’s revised executive order was neutral.

Recent Articles of Interest

From SSRN:

• Russell G. Pearce, Adam Winer & Emily Jenab, A Challenge to Bleached out Professional Identity: How Jewish Was Justice Louis D. Brandeis?, (Touro Law Review, Vol. 33, No. 335, 2017).
• Linda C. McClain, The Intersection of Civil and Religious Family Law in the U.S. Constitutional Order: A Mild Legal Pluralism, (Religion, Secularism & Constitutional Democracy (Jean L Cohen and Cécile Laborde, Columbia University Press 2016), pp. 379-399).
• Michael V. Hernandez, In Defense of Pluralism: Religiously Affiliated Law Schools, Olympianism, and Christophobia, (University of Toledo Law Review, Vol. 48, 2017).
• Linda C. McClain, Reading Deboer and Obergefell through The ‘Moral Readings versus Originalisms’ Debate: From Constitutional ‘Empty Cupboards’ to Evolving Understandings, (11 Problema: Anuario de Filosofía y Teoria del Derecho 85-130 (Dec. 2017) ).

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

• George Baylon Radics & Yee Suan Poon, Amos Yee, Free Speech, and Maintaining Religious Harmony in Singapore, (University of Pennsylvania Asian Law Review, Vol. 12, No. 2, 2016).
• Michael M. Karayanni, Multiculturalism As Covering: On the Accommodation of Minority Religions in Israel, (American Journal of Comparative Law, Forthcoming).
• Andrea Quinn, After Şahin v. Turkey and S.A.S. v. France: Scarves, Strategy and State Actors, (May 4, 2017).
• Ben Saul, Minorities and Counter-Terrorism Law, (European Yearbook of Minority Issues, Forthcoming).
• Karin Carmit Carmit Yefet, Synagogue and State in the Israeli Military: A Story of 'Inappropriate Integration', (10 Journal of Law & Ethics of Human Rights 223 (2016)).
• Benjamin Geva, The Medieval Hawale: The Legal Nature of the Suftaj and Other Islamic Payment Instruments, (Osgoode Legal Studies Research Paper No. 42/2017).

From SmartCILP:

• Marvin Lim, Epistemology in Uncertainty: Distinguishing Science and Faith in the Quantum Age, [Abstract], 53 California Western Law Review 1-47 (2016).

Courthouse Renovation Discovery Creates Church-State Concern

A church-state controversy may be in the making in Nelson County, Virginia where $5 million renovation of a century-old historic courthouse has uncovered a religious inscription in the courtroom.  Today's Lynchburg News & Advance reports that as four coats of paint were stripped from the wood structure resting on columns supporting a courtroom balcony, the inscription "Virtus — Keep God’s Commandments — Veritas" was revealed.  Historians say the inscription may date from the 1830's when newly-formed Protestant denominations used the courthouse for worship services.

Recent Prisoner Free Exercise Cases

In Myrick v. Torres, 2017 Pa. Commw. Unpub. LEXIS 310 (Commonwealth Ct. PA, May 1, 2017), a Pennsylvania appeals court affirmed the dismissal with leave to amend by the trial court of an inmate's complaint that the number of choir practices for Seventh Day Adventist were reduced and that the Chaplain Program Director favored Latin music and services and replaced Christian ushers with Latin ushers.

In Chichakli v. Cheatham, 2017 U.S. Dist. LEXIS 66746 (SD FL, May 1, 2017), a Florida federal district court allowed an inmate to move ahead with his 1st Amendment (but not his RLUIPA) claim growing out of alleged denial of access to his prayer book, Bible, and Tefillin.

In Mitchell v. Robicheaux, 2017 U.S. Dist. LEXIS 66826 (ED CA, May 1, 2017), a California federal magistrate judge recommended revoking plaintiff's in forma pauperis status under the "3 strikes" provision in a suit alleging failure to provide plaintiff meals consistent with the religion of Islam.

In Vaughn v. Wegman, 2017 U.S. Dist. LEXIS 66839 (ED CA, May 1, 2017), a California federal magistrate judge recommended that an inmate be allowed to move ahead with his complaint that he was denied kosher meals and access to Jewish religious services.

In Sessing v. Sherman, 2017 U.S. Dist. LEXIS 67626 (ED CA, May 3, 2017), a California federal district court terminated an inmate's suit which challenged a now-discontinued policy that prohibited the construction of new worship grounds at his Substance Abuse Treatment Facility, preventing him from exercising his outdoor, fire-centric Odinist religion.

In Gordon v. Sniff, 2017 U.S. Dist. LEXIS 67753 (CD CA, May 2, 2017), a California federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 67757, April 28, 2017), and allowed an inmate to move ahead with most of his claims alleging that Muslim inmates were denied all religious services, while services were provided for all other religious beliefs.

In Brinkman v. Ryan, 2017 U.S. Dist. LEXIS 68293 (D AZ, May 3, 2017), an Arizona federal district court dismissed a Wiccan inmate's complaint that his religious practices were not accommodated.

In Wolcott v. Board of Rabbis of Northern & Southern California, 2017 U.S. Dist. LEXIS 68435 (ED CA, May 3, 2017), a California federal magistrate judge recommended dismissing a complaint by an inmate seeking to convert to Judaism that he is unable to obtain Tefillin and Tzittzit.

International Religious Freedom Provisions In Just-Signed Budget Act

H.R. 244, the Consolidated Appropriations Act, 2017 (full text), which President Trump signed into law yesterday contains a number of provisions relating to religious liberty. Among the provisions are the following that focus on international religious freedom initiatives:

SEC. 7033.

(a) International Religious Freedom Office And Special Envoy To Promote Religious Freedom.—

(1) Funds appropriated by this Act under the heading “Diplomatic and Consular Programs” shall be made available for the Office of International Religious Freedom, Bureau of Democracy, Human Rights, and Labor, Department of State, the Office of the Ambassador-at-Large for International Religious Freedom, and the Special Envoy to Promote Religious Freedom of Religious Minorities in the Near East and South Central Asia.... 

(2) Funds appropriated under the heading “Diplomatic and Consular Programs” and designated for the Office of International Religious Freedom shall be made available for the development and implementation of an international religious freedom curriculum.... 

(b) Assistance.—

(1) INTERNATIONAL RELIGIOUS FREEDOM PROGRAMS.—Of the funds appropriated by this Act under the heading “Democracy Fund” and available for the Human Rights and Democracy Fund (HRDF), not less than $10,000,000 shall be made available for international religious freedom programs: Provided, That the Ambassador-at-Large for International Religious Freedom shall consult with the Committees on Appropriations on the uses of such funds.

(2) PROTECTION AND INVESTIGATION PROGRAMS.—Of the funds appropriated by this Act under the heading “Economic Support Fund”, not less than $10,000,000 shall be made available for programs to protect vulnerable and persecuted religious minorities: Provided, That a portion of such funds shall be made available for programs to investigate the persecution of such minorities by governments and non-state actors and for the public dissemination of information collected on such persecution, including on the Department of State Web site.

(3) HUMANITARIAN PROGRAMS.—Funds appropriated by this Act under the headings “International Disaster Assistance” and “Migration and Refugee Assistance” shall be made available for humanitarian assistance for vulnerable and persecuted religious minorities, including victims of genocide designated by the Secretary of State and other groups that have suffered crimes against humanity and ethnic cleansing.... 

(4) TRANSITIONAL JUSTICE, RECONCILIATION, AND REINTEGRATION PROGRAMS IN THE MIDDLE EAST AND NORTH AFRICA REGIONS.—

(A) Not later than 90 days after enactment of this Act and after consultation with relevant central governments in the Middle East and North Africa regions, the Secretary of State shall submit to the Committees on Appropriations a plan for transitional justice, reconciliation, and reintegration programs for vulnerable and persecuted religious minorities in such regions.... 

(c) International Broadcasting.—Funds appropriated by this Act under the heading “Broadcasting Board of Governors, International Broadcasting Operations” shall be made available for programs related to international religious freedom, including reporting on the condition of vulnerable and persecuted religious groups.

(d) Atrocities Prevention.—Funds appropriated by this Act under the headings “Economic Support Fund” and “International Narcotics Control and Law Enforcement” shall be made available for programs to prevent atrocities and to implement the recommendations of the Atrocities Prevention Board....

(e) Designation Of Non-State Actors.—The President shall, concurrent with the annual foreign country review required by section 402(b)(1) of the International Religious Freedom Act of 1998 ... review and identify any non-state actors in such countries that have engaged in particularly severe violations of religious freedom, and designate, in a manner consistent with such Act, each such group as a non-state actor of particular concern for religious freedom operating in such reviewed country or surrounding region: Provided, That whenever the President designates such a non-state actor under this subsection, the President shall, as soon as practicable after the designation is made, submit a report to the appropriate congressional committees detailing the reasons for such designation.