EU Ban On State Economic Subsidies Invalidates Some Applications of Tax Exemption Treaty with Vatican

Article 107(1) of the Treaty on the Functioning of the European Union prohibits EU states from granting aid that "distorts or threatens to distort competition [between Member States] by favouring certain undertakings or the production of certain goods..."  In Congregación de Escuelas Pías Provincia Betania v. Ayuntamiento de Getafe, (CJEU, June 27, 2017), the Court of Justice of the European Union held that this provision may invalidate some applications of a treaty between Spain and the Vatican exempting from taxes the property in Spain of Catholic dioceses, parishes and religious orders.  At issue is a municipal tax that would apply to the renovation and extension of a building at a school operated by a Catholic order. According to the Court, the ban on favoring certain "undertakings" applies only to "economic activity."  To the extent that the building is used for educational activities subsidized by the Spanish government, the religious order is not engaged "economic activity" and the EU Treaty does not bar a tax exemption.  However

it would seem ... the Congregación’s educational activities that are not financed by the Spanish State, corresponding to early-years teaching, extracurricular activities and post-compulsory education, meet all the criteria ... of the present judgment for classification as ‘economic activities’....

Law & Religion UK has more on the decision.

European Court Upholds Defamation Judgment For False Charges of Anti-Muslim Statements

In Case of Medzlis Islamske Zajednice Brcko and Others v. Bosnia and Herzegovina, (ECHR, June 27, 2017), the European Court of Human Rights Grand Chamber by a vote of 11-6 held that the free expression rights of a Muslim religious community and three non-governmental organizations representing ethnic Bosnian Muslims were not infringed by a defamation judgment entered against them.  The suit grew out of a letter sent to authorities of the Brčko District's multi-ethnic radio station objecting to the appointment of "Ms. M.S." as director of the station.  Among other things, the letter claimed that M.S.:

(1) stated in an interview ... commenting on the destruction of mosques in Brčko, that Muslims were not a people ..., that they did not possess culture and that, accordingly, destroying mosques could not be seen as destruction of cultural monuments,

(2) as an employee of the BD radio demonstratively tore to pieces on the radio’s premises ... the calendar showing the schedule of religious services during the month of Ramadan...

These statements were inaccurate.  The majority concluded:

the authorities of the respondent State struck a fair balance between the applicants’ interest in free speech, on the one hand, and M.S.’s interest in protection of her reputation on the other hand, thus acting within their margin of appreciation....

The Court's press release on the decision summarizes the Court's reasoning.

Welfare Fraud Arrests Trigger Anti-Semitic Incidents

The Asbury Park Press reported yesterday that the welfare fraud arrests last week of 14 Orthodox Jewish residents (including a congregational rabbi) in Lakewood, New Jersey has triggered a rash of anti-Semitism.  Anti-Jewish comments appeared on Facebook and other social media, as well as in flyers distributed around Lakewood and in a white sheet hung over a Holocaust memorial. A majority of Lakewood's 100,000 residents are Orthodox Jews.  Lakewood Police are investigating the incidents.

Court Rules Church Factions Must Share Church Building

In Mullins v. Wicker, (OH App., June 22, 2017), an Ohio appellate court in a 2-1 decision, agreed with a trial court's decision in a case in which two competing factions of the Little Ettie Old Regular Baptist Church in Beaver, Ohio both claimed ownership of the church's property.  The trial court had held that there are two congregations each equally entitled to church property and issued an injunction specifying how the two factions would share use of the church building.  The appeals court majority affirmed.

Judge Harsha dissenting argued that the court should have applied the ecclesiastical abstention doctrine and dismissed the case for want of jurisdiction, even though neither party raised the jurisdictional issue. He argued that the dispute here is essentially over church doctrine.  He added that even if the ecclesiastical abstention doctrine does not apply, the trial court abused its discretion in finding that there are two competing congregations equally entitled to ownership of church property.

Recent Articles and Books of Interest

From SSRN:

• Joseph William Singer, Property and Sovereignty Imbricated: Why Religion Is Not an Excuse to Discriminate in Public Accommodations, (18 Theoretical Inquiries in Law 521 (2017)).
• Steven Douglas Smith, Against 'Civil Rights' Simplism: How Not to Accommodate Competing Legal Commitments, (San Diego Legal Studies Paper No. 17-294 (2017)).
• David Pozen, The Abortion Closet (with a Note on Rules and Standards), (Columbia Journal of Gender and Law, Forthcoming).
• Ian Murray, The Taming of the Charitable Shrew: State Roll Back of Charity Tax Concessions, (27(1) Public Law Review 54 (2016)).

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

• Neil James Foster, Protecting Religious Freedom in Australia through Legislative Balancing Clauses, (June 14, 2017).
• Lama Abu-Odeh, Who Cares About Islamic Law?, (Al-Jumhuriya, Forthcoming).
• Mohamed Abdelaal, Extreme Secularism vs. Religious Radicalism: The Case of the French Burkini, (23 ILSA Journal of International & Comparative Law (2017)).
• Muhammed Tawfiq Ladan, Rights to Freedom of Religious Belief and Expression, (June 27, 2017).
• Kathryn Chan, Identifying the Institutional Religious Freedom Claimant, (95 Cdn Bar Review (Forthcoming)).
• Kai Möller, Ritual Male Circumcision and Parental Authority, (LSE Legal Studies Working Paper No. 14/2017).
• Tamar Kricheli‐Katz, Haggai Porat & Yuval Feldman, Are All Types of Discrimination Created Equal?, (June 26, 2017).

Recent and Forthcoming Books:

• Jenna Weissman Joselit, Set in Stone-- America's Embrace of the Ten Commandments, (Oxford Univ. Press, May 2017), author interview by The Forward.
• Michael J. Broyde, Sharia Tribunals, Rabbinical Courts, and Christian Panels-- Religious Arbitration in America and the West, (Oxford Univ. Press, June 2017).
• John Corvino, Ryan T. Anderson & Sherif Girgis, Debating Religious Liberty and Discrimination, (Oxford Univ. Press, June 2017).
• Ronit Y. Stahl, Enlisting Faith-- How the Military Chaplaincy Shaped Religion and State in Modern America, (Harvard Univ. Press,Nov. 2017).
• Joseph Kip Kosek (ed.), American Religion, American Politics-- An Anthology, (Yale Univ. Press, May 2017).
• Spencer W. McBride, Pulpit and Nation-- Clergymen and the Politics of Revolutionary America, (University of Virginia Press, Jan. 2017).

Trump Administration Modifies List of Grants For Combating Violent Extremism

As reported by CNN, the Department of Homeland Security on June 23 announced 26 organizations that have been approved for awards under the Countering Violent Extremism Grant Program. Using new criteria, the list eliminates 11 of the 31 organizations that had initially been approved by the Obama Administration for grants, and adds new awardees, mostly law enforcement organizations.  Among those eliminated are Life After Hate, a group whose purpose is to rehabilitate former neo-Nazis and other extremists. Also eliminated from funding is the Muslim Public Affairs Council which works to see that mosques are not used by terrorists for recruitment.

Recent Prisoner Free Exercise Cases

In Rials v. Avalos, 2017 U.S. Dist. LEXIS 97650 (ND CA, June 23, 2017), a California federal district court allowed an inmate to move ahead with free exercise and equal protection challenges to disciplinary action taken against him for possessing two religious photos outside of his cell.

In Nordgaarden v. Baca, 2017 U.S. Dist. LEXIS 97763 (D NV, June 23, 2017), a Nevada federal magistrate judge recommended refusing to dismiss a claim by a Jewish inmate that an officer threatened to throw him in the hole, confiscated his meal and placed him in a holding cell because he was leaving the culinary to eat his Passover meal, which he contends is religiously required.

In Nance v. Miser, (9th Cir., June 29, 2017), the 9th Circuit held that a ban on a Muslim inmate's purchasing scented oils for use in weekly prayers substantially burdens his exercise of religion. and is not justified under RLUIPA. It remanded for further proceedings a claim regarding beard length.

In Medina v. Kuykendall, 2017 U.S. Dist. LEXIS 98980 (ED PA, June 27, 2017), a Pennsylvania federal district court dismissed with leave to amend in inmate's complaint that the County Prison denied him religious materials and kosher and halal meals.

In McCann v. Texas, 2017 U.S. Dist. LEXIS 99400 (SD TX, June 27, 2017), a Texas federal district court dismissed a habeas corpus petition in which plaintiff challenged his conviction for giving false identifying information to the police, alleging that it violates his free exercise rights to require him to list his birth date as the date of delivery rather than the date of conception.

In Boyd v. Etchebehere, 2017 U.S. Dist. LEXIS 99467 (ED CA, June 27, 2017), a California federal magistrate judge recommended dismissing a complaint by a Muslim inmate that he was denied participation in the Ramadan meal schedule for a week during which he was enrolled in the vegetarian diet rather than the Religious Meat Alternative Program.

In Docherty v. Cape May County, 2017 U.S. Dist. LEXIS 100709 (D NJ, June 29, 2017), a New Jersey federal district court allowed Muslim inmates to move ahead against governmental defendants with their complaint that they are allowed to congregate for Friday prayers only in an area which is dirty and foul smelling.

In Rush v. Malin, 2017 U.S. Dist. LEXIS 101285 (SD NY, June 29, 2017), a New York federal district court permitted an inmate to move ahead with claims that Shi'a Muslims were denied Jumu'ah services for 2 months, a separate Ashura observance, and weekly classes, a separate account, and a fundraiser. The court dismissed certain other claims.

In Taft v. California Department of Corrections, 2017 U.S. Dist. LEXIS 101467 (ED CA, June 28, 2017), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that he was forced to remove his yarmulke without a security search protocol and that a correctional officer displayed anti-Semitic behavior toward him.

Michigan Governor Vetoes Bill Requiring Pro-Life License Plate

On June 30, Michigan Governor Rick Snyder vetoed SB 163 (full text), a bill that would have required the state to issue a fund-raising "Choose Life" license plate, with proceeds to be distributed to crisis pregnancy centers and similar pro-life non-profits.  In his Veto Letter (full text), the Governor said in part:

... SB 163 is not about a license plate; it's about the State of Michigan making a political statement. And that statement arouses strong emotional reaction that divides the residents of this state.

Detroit Free Press reports on the governor's action and response to it.

Germany's Bundestag Approves Same-Sex Marriage

As reported by BBC and the New York Times, on Friday Germany's Bundestag passed legislation permitting same-sex marriage.  Currently only civil unions are allowed for same-sex couples.  The vote was 393-226 with 4 abstentions.  Chancellor Angela Merkel, while voting against the change, told members of her governing coalition to vote on the issue according to their consciences. The legislation changes Germany's law to read: "Marriage is entered into for life by two people of different or the same sex."  The legislation must still be approved by the Bundesrat (the upper house of parliament) and signed by Germany's president, but neither of those steps appears to be in doubt.

Texas Supreme Court Keeps Life In Challenge To City's Same-Sex Couple Benefits

In a complex opinion, the Texas Supreme court has given two Houston taxpayer-voters another chance to challenge the legality of the city's extending spousal benefits to same-sex married couples.  At issue in Pidgeon v. Turner, (TX Sup. Ct., June 30, 2017), is the instructions on remand given by a state appeals court in reversing a trial court's temporary injunction against the city's action.  Plaintiffs' suit is based on the contention that Texas' Defense of Marriage Act still has residual effect and that the state appeals court incorrectly indicated to the trial court that the 5th Circuit's DeLeon decision invalidating the state's DOMA is binding on it.  The Texas Supreme Court agreed that the appeals court was incorrect in telling the trial court to proceed "consistent with" DeLeon:

We agree with Pidgeon that De Leon does not bind the trial court in this case and the court of appeals should not have instructed the trial court to conduct further proceedings “consistent with” De Leon. Penrod Drilling, 868 S.W.2d at 296.17 That does not mean, however, that the trial court should not consider De Leon when resolving Pidgeon’s claims. Fifth Circuit decisions, particularly those regarding federal constitutional questions, can certainly be helpful and may be persuasive for Texas trial courts. Moreover, De Leon could potentially affect the relief the trial court might provide on remand, since De Leon has enjoined the Governor from enforcing the Texas DOMAs and the State of Texas is thus providing benefits to state employees’ same-sex spouses. The trial court should certainly proceed on remand “in light of” De Leon, but it is not required to proceed “consistent with” it.

The Texas Supreme Court refused to reach another argument by plaintiffs that they have standing to seek a clawback of payments the city made to same-sex couples before the U.S. Supreme Court's Obergefell decision.  Plaintiff's cited the U.S. Supreme Court's Hobby Lobby decision, contending that as taxpayers they have been injured by the payments "because they are devout Christians who have been compelled by the mayor’s unlawful edict to subsidize homosexual relationships that they regard as immoral and sinful."  NPR reports on the decision.

Nominees Submitted For Head of Civil Rights Division and For EEOC Seat

Earlier this week, the White House announced President Trump's nomination of  Eric S. Dreiband to head the Civil Rights Division of the Department of Justice. As reported in an earlier Washington Post background piece, Dreiband, who is a partner in the Jones Day law firm, among other things has a master’s degree in theological studies (with a concentration in ethics and public policy) from Harvard University.  In the George W. Bush administration, Dreiband served as general counsel of the EEOC.  In 2015, he was one of the attorneys who represented Abercrombie & Fitch in its Supreme Court fight over the need to grant religious accommodation to a Muslim woman who wears a headscarf for religious reasons.  He was also one of the attorneys on the brief at the Court of Appeals level representing the Roman Catholic Archbishop of Washington in its 2014 challenge to the accommodation for religious non-profits who object to the Obamacare contraceptive coverage mandate.

Also, this week, the White House announced it has nominated Janet Dhillon for a seat on the Equal Employment Opportunity Commission. According to Law.com, Dhillon is currently general counsel for Burlington Stores, Inc.

New Hate Crime Data Released By DOJ

Yesterday the Justice Department's Bureau of Justice Statistics released (press release) a report on Hate Crime Victimization, 2004-2015. The data taken from its National Crime Victimization Survey showed that  on average 250,000 people per year were hate crime victims, and until 2015 a majority of these were not reported to police.  During 2011-2015, religious bias accounted for 17% of the perceived hate crimes. Racial bias accounted for 48%.

Church Sues Over Zoning Ruling On Use of Building For Christian School

A suit was filed this week in a Virginia federal district court challenging Spotsylvania County officials' contention that a Baptist church must obtain a special use permit in order for the education wing of the church to house an independent Christian high school whose mission is to provide classical education rooted in the tradition of Catholic teaching. The church says the school is one of its ministries and does not require further zoning approval. The complaint (full text) in Zoan Baptist Church v. Spotsylvania County, (ED VA, filed 6/28/2017) alleges that the county ordinance and the way it has been enforced infringes the church's rights under RLUIPA, as well as under the Establishment and Free Exercise clauses. Plaintiffs have also filed a Brief in Support of their motion for equitable relief. (Full text of brief).

Preliminary Injunction Refused: Settlement In Mosque Zoning Dispute Stands

In Youkhanna v. City of Sterling Heights, (ED MI, June 28, 2017), a Michigan federal district court refused to issue a preliminary injunction to prevent enforcement of a consent judgment entered into by the city of Sterling Heights.  The consent judgment allows the American Islamic Community Center to construct a mosque on land in the city.  Plaintiffs live near the mosque site.  Some are Chaldean Christians form Iraq and one is an Assyrian Christian from Syria.  They allege that their religious groups in Iraq and Syria have been subjected to violence by ISIS.  The court held that plaintiffs had not shown a likelihood of success on their constitutional and statutory claims regarding the validity of the consent judgment and the conduct of the meeting at which it was approved. (See prior related posting.)

Diocese and Parishes May Be Single Employer For Purposes of Title VII

In Clement v. Roman Catholic Diocese of Erie, (WD PA, June 16, 2017), a Pennsylvania federal magistrate judge refused to dismiss a Title VII sexual hostile work environment claim against two Catholic parishes and the Catholic Diocese of Erie.  Plaintiff served as Facilitator of Religious Education Programs in three parishes. In the case, the Diocese contended that plaintiff was employed only by the parishes, and the parishes claimed that individually each does not employ at least 15 individuals, the minimum number required before Title VII applies.  The court concluded that at this early stage of the litigation, evidence of the dual chain of command over defendant's position and the intermingling of parish and Diocese business affairs raises a reasonable expectation that discovery could reveal sufficient evidence to treat the Diocese and parishes as a single employer.  GoErie reports on the decision.

No Taxpayer Standing To Challenge North Carolina Conscience Law Excusing Magistrates From Performing Marriages

In Ansley v. Warren, (4th Cir., June 28, 2017), the U.S. 4th Circuit Court of Appeals dismissed on standing grounds an Establishment Clause challenge to North Carolina's Senate Bill 2 which allows state magistrates who have religious objections to same-sex marriage to recuse themselves from performing all marriages.  (See prior posting.)  The court said in part:

The outcome here is in no way a comment on same-sex marriage as a matter of social policy. The case before us is far more technical—whether plaintiffs, simply by virtue of their status as state taxpayers, have alleged a personal, particularized injury for the purposes of Article III standing. Based on a century of Supreme Court precedent, we conclude that they have not.

Asheville Citizen-Times reports on the decision.

Man Destroys New 10 Commandments Monument At Arkansas Capitol

As previously reported, on Tuesday a 6-foot tall granite replica of the Ten Commandments was installed on the grounds of the Arkansas State Capitol.  According to Arkansas Online, less than 24 hours later a 32-year old Arkansas man drove a vehicle into the monument, destroying it. Police have arrested Michael Tate Reed, charging him with defacing objects of public respect, trespassing on Capitol grounds and first-degree criminal mischief.  Reed apparently live streamed his actions on Facebook.  Apparently Reed is the same person who 3 years ago similarly destroyed a Ten Commandments monument on the Oklahoma statehouse grounds. (See prior posting.) State Senator Jason Rapert who sponsored the Arkansas legislation authorizing the monument says that a new monument has already been ordered.

Michigan Supreme Court Holds Ecclesiastical Abstention Doctrine Is Not Jurisdictional

In Winkler v. Marist Fathers of Detroit, Inc., (MI Sup. Ct., June 27, 2017), the Michigan Supreme Court held that the ecclesiastical abstention doctrine:

requires a case-specific inquiry that informs how a court must adjudicate certain claims within its subject matter jurisdiction; it does not determine whether the court has such jurisdiction in the first place.

The court explained:

What matters ...  is whether the actual adjudication of a particular legal claim would require the resolution of ecclesiastical questions....

With that understanding, the Supreme Court remanded the case to the Court of Appeals for it to decide whether Michigan's Persons With Disabilities Civil Rights Act applies to religious schools.  At issue in the case is a Catholic high school's denial of admission to a student who contends that the denial was because of her learning disability.

Judge Denies New Counsel to Murder Defendant Claiming Religious Conflict With Attorney

Wichita Eagle reported yesterday that a Kansas trial court judge has denied the request by a defendant in a murder case who wants new counsel.  Defendant Rachael Hilyard, charged with decapitating Micki Davis, the mother of her ex-boyfriend, says she has an extreme religious conflict with her attorney.  She says her lawyer will not get her a psychological evaluation.  In a letter to the court, Hilyard said in part:

The victim in my case was a Jehovas Witness. I think he is one as well.  I am Catholic & this was a crime of God. I am requesting a change of counsel..... On a different case, this would be irrelevant. However, I am Catholic & and the head of a Jehovas Witness was found in my kitchen sink. I think she may have been a high ranking member in this religion.

Davis' family says she was not a Jehovah's Witness.

In Unusual Church Autonomy Dispute, Catholic School Can Require Immunization of All Students

In a case with an unusual twist, a Florida state appeals court yesterday upheld the policy of a Catholic school requiring immunization of all students, even when a parent has religious objections to immunization.  In Flynn v. Estevez, (FL App., June 27, 2017), the appeals court held that under the church autonomy doctrine, a civil court cannot require a religious school to comply with the provision in Florida law that allows parents to object on religious grounds to immunization of their children. It said in part:

...[T]he application of the statutory exemption to the Diocese is problematic due to the intramural ecclesiastical kerfuffle that underlies this dispute. The Diocese has a religiously-based immunization policy with which one of its members disagrees; Mr. Flynn seeks the power of the State to compel the Diocese to depart from its point-of-view and admit his non-immunized son. But doing so would further his own religious views at the expense of the Diocese’s on the topic of immunizations. We are convinced that a secular court should not be making the judgment as to which side’s religious view of immunization is to be respected.... Unlike other church autonomy cases, the unique feature of this one is that both parties assert Catholic religious doctrine as the basis for their litigation positions, which cautions against a secular court wading into the squabble.... 

Mr. Flynn claims the Diocese’s vaccination policy must be actually rooted in a specific religion doctrine, tenet, or text, and that its “general concern about the ‘common good’” is a religiously ineffectual basis for invoking the abstention doctrine. Though the trial court wasn’t presented with the specific religious basis for the Diocese’s new policy, we find no fault in its conclusion that “immunizations of children attending Catholic schools is an issue of faith, discipline, and Catholicism [that] can only properly be determined by the church and not by the civil courts.” Courts are in no more of a position to compel the Diocese to provide a sufficient quantum of passable proof that its view of immunization is consistent with the Catholic faith than to do so as to Mr. Flynn’s personal views of Catholic doctrine on the very same subject.

News Service of Florida reports on the decision.