3rd Circuit Rejects Religious Practice Defenses By Rabbis In Divorce Kidnapping Prosecutions

In United States v. Stimler, (3d Cir., July 7, 2017), the U.S. 3rd Circuit Court of Appeals upheld the convictions of three Orthodox Jewish rabbis for kidnapping related offenses.  The rabbis were involved in Jewish religious court (beth din) proceedings which would authorize forcible actions against a recalcitrant husband to convince him to provide his civilly divorced wife with a religious divorce document (a get).  They worked with "muscle men" who would be paid to kidnap and torture the targeted husband. Among the issues raised on appeal were two that focused explicitly on religious freedom claims.

The rabbis asserted that because it is a religious commandment to help a civilly divorced wife obtain a get, it violates their rights under the Religious Freedom Restoration Act (RFRA) to prosecute them for their role in doing so.  The appeals court rejected that argument, concluding that while the prosecution "undoubtedly constituted a burden on their sincerely held religious beliefs," it was not a "substantial" burden, saying in part:

the District Court properly analyzed whether the burden was “substantial” by looking to acceptable alternative means of religious practice that remained available to the defendants. Here, none of the defendants argue that they are unable to participate in the mitzvah of liberating agunot without engaging in kidnapping; as the District Court noted, “it is unclear whether all non-violent methods were exhausted before the alleged kidnappings took place here.” The defendants do not challenge this determination on appeal.... 

The court added that even if there were a "substantial" burden, "the government has a compelling interest in uniform application of laws about violent crimes and that no other effective means of such uniformity existed."

The appeals court also rejected the argument of one of the defendants that his joinder with the other two amounted to a separate RFRA violation.

The appeals court also upheld the district court's refusal to admit evidence about Jewish religious law and the religious motivation for the defendants' actions.  The federal kidnapping statute requires that the kidnapping be committed for some reward or benefit. The court held that the religious benefit of performing a mitzvah (commandment) is sufficient to come within the statute. It also apparently agreed with the district court's conclusion that a religious motivation does not negate criminal intent.  Additionally, the court rejected defendants' argument that the husbands, by practicing Orthodox Judaism and signing a marriage contract, implicitly agreed to the use of force that might be authorized by a Jewish religious court. Finally, on the evidentiary issue, the court said:

We further agree with the District Court that any marginal relevance that the religious evidence may have had was substantially outweighed by the prejudicial impact it would have had on the trial. Suggesting that the defendants acted for a religious purpose might have given rise to the potential for jury nullification, which we have held is substantially prejudicial.

NJ Advance Media reports on some of the other issues covered by the decision. [Thanks to Tom Rutledge for being the first reader to send me the lead.]

Cert. Petition Filed In Ten Commandments Case

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in City of Bloomfield v. Felix.  In the case, a 3-judge panel of the 10th Circuit found that a Ten Commandments monument on a city hall lawn violates the Establishment Clause. (See prior posting.) The full 10th Circuit, over the dissent of two judges, denied en banc review.  (See prior posting.)  ADF issued a press release announcing the petition seeking Supreme Court review.

Settlement Reached In Suit Over University Service Learning Credit For Religious Activity

A settlement has been reached in a lawsuit against the University of Wisconsin Eau Claire (see prior posting) over its refusal to count religious teaching to children as a permissible type of community service to satisfy university students' service learning requirement. Credit was give for various sorts of non-religious teaching.  Under the settlement agreement (full text) in Liebl v. Schmidt, the University agreed to remove language from its Service Learning Guidebook and from as University Senate motion that had disallowed credit for "time spent directly involved in promoting religious doctrine, proselytizing or worship." The University also agreed to pay plaintiffs' attorneys fees of $15,000.  Plaintiffs filed a Notice of Voluntary Dismissal with the Wisconsin federal district court on July 6.  ADF issued a press release announcing the settlement.

Tribes Sue to Stop End of Protection For Yellowstone Grizzly Bears

Last month 17 Native American tribes, clans and individuals filed suit challenging the U.S. Fish and Wildlife Service's decision to lift protections for grizzly bears in the Yellowstone National Park area.  According to AP:

The Native American plaintiffs argue that trophy hunting for grizzly bears goes against their religious and spiritual beliefs. The lawsuit filed June 30 asks a federal judge to rule that the U.S. Fish and Wildlife Service must consider the Native Americans' beliefs and consult adequately with them before removing grizzly protections that have been in place since 1975....

Basing a legal challenge of an Endangered Species Act decision on religious beliefs and inadequate tribal consultation has not been tried before, said the plaintiffs' attorney, Jeff Rasmussen.

In 9th Circuit Church Loses Suit Against Loud Music Festival

In Amistad Christiana Church v. Life Is Beautiful, LLC, (9th Cir., July 3, 2017), the U.S. 9th Circuit Court of Appeals rejected a claim by a Christian church that a music festival put on by Life is Beautiful, LLC with a permit from the City of Las Vegas was so intrusive that it violated their free exercise and free speech rights.  The court found no state action, concluding that Life is Beautiful is a private entity not acting under color of state law.  The city's special event permit regulated permissible sound levels for the festival.  And the city is immune from civil liability for suits based on the exercise of its discretionary functions.

Scotland Investigates Upsurge In Prisoner Requests For Kosher Meals

The Forward reported yesterday that in Scotland, the Inspectorate of Prisons has begun an investigation into why there has been a huge upsurge in inmates requesting kosher meals.  The increase has added $313,000 per year to the cost of operating Scottish prisons.  According to the news report:

Inmates are believed to have started asking for kosher food after watching “Orange is the New Black,” the American television show in which a character named Cindy Hayes, played by Adrienne Moore, converts to Judaism to get “better quality food,” as she explains it in the series.

At one Edinburgh prison, 111 prisoners are being served kosher meals, and it is thought that hundreds of prisoners across the United Kingdom have applied to change their religion to Judaism since the episode aired in 2015.

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.)