Religion Clause

Sunday, September 24, 2017

Tennessee Supreme Court: Resolves Approach In Church Property Dispute

In Church of God In Christ, Inc. v. L.M. Haley Ministries, Inc., (TN Sup. Ct., Sept. 21, 2017), the Tennessee Supreme Court, in a church property dispute, concluded that a break-away local church held its property in trust for its parent body, Church of God In Christ, Inc. The court held that in church property disputes, Tennessee courts should apply the "hybrid" version of the "neutral principles" doctrine:

In applying the hybrid approach, Tennessee courts may consider any relevant statutes, the language of the deeds and any other documents of conveyance, charters and articles of incorporation, and any provisions regarding property ownership that may be included in the local or hierarchical church constitutions or governing documents. But ... a civil court must enforce a trust in favor of the hierarchical church, even if the trust language appears only in the constitution or governing documents of the hierarchical religious organization.

The court also held that civil courts should defer to the decision of the Ecclesiastical Council as to who should be pastor of the church.

A concurring opinion by Justice Curry questioned the majority's treatment of the ecclesiastical abstention doctrine as a bar to jurisdiction rather than as an affirmative defense. The Court also issued a press release summarizing its decision.

Mosque's Property Tax Challenge Barred By Tax Injunction Act

In Islamic Center of Nashville v. Sate of Tennessee, (6th Cir., Sept. 20, 2017), the U.S. 6th Circuit court of Appeals held that the federal Tax Injunction Act (TIA) bars suit in federal court challenging Tennessee's application of its property tax exemption rules to property of an Islamic Center. To finance construction of a new school, the Islamic Center entered a 5-year ijara agreement-- an Islamic financing method that relies on a temporary sale and lease-back arrangement with a bank to avoid borrowing at interest. The county removed the property's tax exemption for the period that title was technically held in the bank's name. The court held that because state law provides a plain, speedy, and efficient
alternative to federal court review of the county's assessment of taxes on the Islamic Center, that is the route that plaintiff must take. There is no special exception to the TIA for First Amendment claims.

Wednesday, September 20, 2017

Lawsuit Challenges Adoption Agencies' Refusal To Place Children With Same-Sex Couples

Today two same-sex couples and a Michigan taxpayer filed suit in a Michigan federal district court challenging the state's practice of contracting out foster-care and adoptive placement to social service agencies that apply religious criteria in placing children. Statutes passed the state legislature in 2015 approve this practice. The complaint (full text) in Dumont v. Lyon, (ED MI, filed 9/20/2017), alleges that religiously affiliated agencies' practice of turning away qualified families on the basis of sexual orientation, violates the Establishment Clause and the Equal Protection Clause. ACLU issued a press release announcing the filing of the lawsuit.

Michigan Civil Rights Commission Stymied In Effort To Issue Interpretive Opinion On Law's Coverage

In June, Equality Michigan wrote the Michigan Civil Rights Commission asking it to issue an interpretative statement finding that the ban on sex discrimination in employment, housing, and public accommodations in Michigan’s Elliott-Larsen Civil Rights Act covers discrimination based on gender identity and sexual orientation. (Full text of letter.) As reported by MLive, on Monday the Commission held a lengthy hearing on the request, but took no final action after an Assistant Attorney General told the Commission that lacks legal authority to issue an interpretive statement. A frustrated Commission voted 5-2 to ask the Attorney General for a formal opinion on its authority.

7 U.S. Senators Write Netanyahu Over Jewish Pluralism In Israel

As reported by JTA, on Monday seven U.S. senators (all of them Jewish) sent a letter (full text) to Israeli Prime Minister Benjamin Netanyahu expressing concern over Israeli governmental recognition of Orthodox Judaism over the more liberal branches of Judaism. Signed by Senators Wyden, Feinstein, Frankin, Blumenthal, Cardin, Schatz, and Sanders, the letter read in part:

[W]e applaud your recent decision to put a hold on a conversion bill under consideration by the Knesset. As we understand it, this bill would invest full oversight of conversions in Israel to the Chief Rabbinate. We fear this would have significant ramifications for the religious equality of all Jewish movements in Israel and we worry that our Modern Orthodox and non-Orthodox constituents will see this as an attack on their Jewishness and the status of their rabbis....

We are also very concerned by the Israeli government's recent decision to freeze a widely-agreed-upon plan to establish an egalitarian payer space at the Western Wall....

We fear actions like [these] ... will strain the unique relationship between our two nations, particularly if the majority of American Jews see the movements to which they are committed denied equal rights in Israel. Given all the challenges Israel faces on the international stage, we urge you not to alienate committed Zionists.

Suits Against Kim Davis Move Ahead

In two similar cases, Yates v. Davis, (ED KY, Sept. 15, 2017), and Ermold v. Davis,(ED KY, Sept. 15, 2017), a Kentucky federal district court allowed plaintiffs to move ahead with their damage actions against Rowan County, Kentucky Clerk, Kim Davis, who refused to issue them marriage licenses. Davis adopted a "no marriage license" policy because of her religious objections to issuing licenses for same-sex marriages. (See prior related posting.) While dismissing claims brought against Davis in her official capacity, the court refused to dismiss personal capacity claims against her. It found that her refusal to issue licenses was subject to strict scrutiny. [Thanks to Tom Rutledge for the lead.]

Tuesday, September 19, 2017

State May Require Inspection of Release Time School Buses

In CBM Ministries of South Central Pennsylvania v. Richards, (MD PA, Sept. 19, 2107), a Pennsylvania federal district court held that to the extent state school bus inspection regulations apply to buses of a religious organization, the regulations do not violate the Free Exercise Clause. They are a neutral and generally applicable regulation. At issue were buses that are used to transport students from public schools to an off-premise release time Bible education program.

Report Claims DOJ Was Divided Over Whether To File Amicus Brief In Masterpiece Cakeshop

As previously reported, earlier this month the Department of Justice filed an amicus brief in the Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, siding with the Christian bakery owner who refused to design and create a cake for a same-sex wedding. Last week National Law Journal reported that the Department was divided on whether to file an amicus brief, although a Justice Department spokesperson denied the report.The paper says:

Senior lawyers in the civil and civil rights divisions and within the U.S. solicitor general’s office said the department should not take a position in the case...

[Acting Solicitor General Jeffrey] Wall was the lead attorney among what former Justice Department lawyers said was an unusually large group of attorneys—eight in all—whose names appeared on the cover of the court filing....

Absent from the government’s Masterpiece Cakeshop brief was any career deputy solicitor general, whose name routinely appears on amicus and merits filings from the Justice Department.

Trump Issues Jewish High Holy Day Greetings

President Trump yesterday issued a Jewish High Holy Day Message (full text), saying in part: "On behalf of all Americans, I want to wish Jewish families many blessings in the New Year."

Monday, September 18, 2017

Israel's High Court Erodes Rabbinate's Monopoly On Kosher Certification

By a vote of 5-2, last week an expanded panel of Israel's High court of Justice handed down a ruling which moves toward breaking the Chief Rabbinate's monopoly on designation of which restaurants in the country are kosher. As reported by Haaretz and Arutz Sheva, the ruling stops short of allowing alternative private kashrut certification. It upholds the Rabbinate's position that Israel's Kosher Fraud Law prohibits a business from representing itself as "kosher" without a certification approved by the Chief Rabbinate. However the decision does allow businesses "to display a true representation about the standards they follow and the way they are supervised in keeping them, which also includes an explicit clarification that they do not have a kashrut certificate." The court added:

Assuming it is telling the truth, nothing prevents a food establishment from clarifying that the meat it serves was purchased from a slaughterhouse that carries kosher certification; and that the fish it serves are only those with fins and scales.

Sunday, September 17, 2017

Recent Prisoner Free Exercise Cases

In Canada v. Gregg, 2017 U.S. Dist. LEXIS 146892 (WD VA, Sept. 12, 2017), a Virginia federal district court dismissed a Muslim inmate's complaint that changes in the common fare diet menu caused him to lose substantial weight.

In Goins v. Fleming, 2017 U.S. Dist. LEXIS 146891 (WD VA, Sept. 12, 2017), a Virginia federal district court allowed a Muslim inmate to move ahead with his complaint regarding kufi use during pod recreation and bathroom access during Sunni group services. However the court dismissed a number of other claims regarding religious diet and location and monitoring of Sunni religious services.

In Jones v. North Carolina Department of Public Safety, 2017 U.S. Dist. LEXIS 147950 (WD NC, Sept. 12, 2017), a North Carolina federal district court allowed a Muslim inmate to move ahead with his complaint that he was required to shave his beard before he could go to a work-release job interview.

In Stansel v. Sorey, 2017 U.S. Dist. LEXIS 147985 (ND FL, Sept. 13, 2017), a Florida federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 148260, Aug. 8, 2017) and dismissed a Muslim inmate's complaint that an offer by an "Islamic sponsor" to provide funding for Ramadan and Eid al Fitr observances was rejected, while sponsors were accepted for other religious groups.

In Frazier v. Florida Department of Corrections, 2017 U.S. Dist. LEXIS 148814 (Sept. 14, 2017), a Florida federal district court dismissed a Jewish inmate's complaints regarding the adequacy and availability of a kosher diet.

In Johnson v. Swibas, 2017 U.S. Dist. LEXIS 149163 (D CO, Sept. 13, 2017), a Colorado federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 150250, July 28, 2017) and dismissed a Messianic Jewish inmate's complaint that he could not obtain an alternative kosher diet without confirmed medical food allergy test results.

Church's Objections To Zoning Conditions Dismissed On Ripeness Grounds

In Life Covenant Church, Inc. v. Town of Colonie, (ND NY, Sept. 13, 2017), a New York federal district court dismissed on ripeness grounds a church's objections to conditions placed in the zoning approval for its construction of a new building. The church contended that conditions limiting the starting time for religious services and the number of daily services violated its rights under the state and federal constitutions as well as RLUIPA. The court held that the judicial challenge is not ripe because the church has not received a final decision on its request to the city that it amend its prior approval to eliminate the objectionable conditions.

Farmer's Market Must Issue Vendor's Permit To Orchard That Refuses To Host Same-Sex Weddings

In Country Mill Farms, LLC v. City of East Lansing, (WD MI, Sept. 15, 2017), a Michigan federal district court issued a preliminary injunction requiring a Michigan city to allow an orchard owner to sell produce at its Farmer's Market even though he refuses on religious grounds to host same-sex weddings at his orchard. After Country Mill posted its policy against hosting same-sex weddings on its Facebook page, the city amended its Farmer's Market Vendor Guidelines to require all vendors to comply with the city's civil rights ordinances not only at the Farmer's Market, but "as a general business practice." It denied Country Mill a vendor's license because of non-compliance with the public accommodation law which, among other things, prohibits publishing a statement that indicates a business will discriminate on the basis of sexual orientation.

The court found that Country Mill had shown a substantial likelihood of success on its First Amendment retaliation claim: The city took action chilling the orchard owner's speech about his religious beliefs. Plaintiff also showed a likelihood of success on his free exercise claim:

The context in which the Vendor Guidelines were amended and then applied to Country Mill supports Plaintiffs’ claim that their religious beliefs or their religiously motivated conduct was the target of the City’s actions.... [T]he City’s hostility to Plaintiffs’ religion or religious conduct was ... manifested when the City used its facially neutral and generally applicable ordinance to deny Plaintiffs’ Vendor Application.

ADF issued a press release on the decision, with links to some of the other pleadings in the case.

Friday, September 15, 2017

President Holds High Holiday Teleconference With Jewish Leaders, Absent Many Who Boycotted the Annual Event

As reported by the Washington Post, today President Trump (along with Jared Kushner) participated in the traditional annual telephone call with Jewish leaders in advance of Rosh Hashanah. This year, however, leaders of the Reform, Conservative and Reconstructionist denominations boycotted the call in protest of Trump's remarks last month after Charlottesville. In a statement, these leader charged that "The president’s words have given succor to those who advocate anti-Semitism, racism, and xenophobia." (Background.) The White House released a transcript of remarks by the President and by Kushner at today's teleconference. There the President said in part:

I am grateful for the history, culture, and values the Jewish people have given to civilization. We forcefully condemn those who seek to incite anti-Semitism, or to spread any form of slander and hate -- and I will ensure we protect Jewish communities, and all communities, that face threats to their safety.

Louisiana AG Opinion Says ABA Model Rule Barring Discrimination Is Unconstitutional

The Louisiana State Bar Association is considering adopting an amendment to its Rules of Professional Conduct that would define professional misconduct as including:

conduct in connection with the practice of law that the lawyer knows or reasonably should know involves discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability. This rule does not prohibit legitimate advocacy when race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability are issues,nor does it limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.

This is a narrower version of ABA Model Rule 8.4(g) which the ABA House of Delegates adopted in 2016. Last week, the Louisiana Attorney General's Office issued Attorney General's Opinion 17-0114 which concludes that the ABA version of the Model Rule is likely unconstitutional under the First and Fourteenth Amendments, and that while Louisiana's proposed version seeks to avoid many of the constitutional problems, it still suffers from some of the same vagueness and overbreadth issues as does the ABA rule.

In addition to finding that the ABA Model Rule is overbroad and vague, the Opinion also concluded that it violates associational and religious liberty protections, saying in part:

Lawyers participate in a wide variety of associations that engage in expressive conduct which could run afoul of ABA Model Rule 8.4(g), including faith-based legal organizations and activist organizations that promote a specific political or social platform....

ABA Model Rule 8.4(g) could also result in lawyers being punished for practicing their religion. The United States Supreme Court specifically noted in Obergefell v. Hodges that "those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned." However this type of advocacy appears to be prohibited by ABA Model Rule 8.4(g).... Under Rule 8.4(g), a lawyer who acts as a legal advisor on the board of their church would be engaging in professional misconduct if they participated in a march against same-sex marriage or taught a class at their religious institution against divorce....

AP reports on the Attorney General's Opinion.

9th Circuit: Facebook Is Immune From Liability For Blocking Access To Sikh Group's Page

In Sikhs for Justice, Inc. v. Facebook, Inc., (9th Cir., Sept. 13, 2017), the U.S. 9th Circuit Court of Appeals affirmed a California federal district court's dismissal of a religious discrimination claim against Facebook. (See prior posting.) In the lawsuit, brought by a Sikh human rights group, plaintiffs contend that Facebook violated the public accommodation provisions of the 1964 Civil Rights Act when it blocked access to SJF's Facebook page in India. The suit contends that Facebook collaborated with the government of India in retaliating against SFJ for its online campaign complaining about the treatment of Sikhs and promoting an independent Sikh state. The 9th Circuit held that Facebook is immune from civil liability under Section 230 of the Communications Decency Act, and that Title II of the 1964 Civil Rights Act does not provide an exception to this immunity.

Former USCIRF Commissioner Cromartie Dies

A press release yesterday from the U.S. Commission on International Religious Freedom reported that former USCIRF Commissioner Michael Cromartie died on Aug. 28. The release said in part:

Mr. Cromartie was a prolific writer who edited more than a dozen books on religion and politics. He also served as a primary source for the media as reporters sought to understand the intersection of politics and religion. He has been described as being part of a wave of evangelical Christians who believed that their faith required an active engagement in both politics and public life.

The New York Times (Sept. 1) carried his Obituary.

Animal Rights Group Sues Police Over Lax Enforcement Against Kapparot Ritual

As the Jewish High Holidays approach, animal rights groups in California are again (see prior posting) attempting to stop the practice of using chickens for the pre-Yom Kippur ritual of kapparot. The complaint (full text) in Animal Protection and Rescue League v. City of Los Angeles, (CD CA, filed 9/12/2017), contends that the the Los Angeles and Irvine police departments are violating the Establishment Clause by "actively protecting, encouraging and ratifying illegal conduct solely because it is motivated by religious belief." Plaintiffs say they want to make citizens' arrests of those who kill and discard chickens in their presence, but that police are deployed in large numbers to prevent such arrests. They say that under California Penal Code Secs. 597(a) and 599c, all intentional killing of animals, except when used for food, are outlawed. Orange County Register reports on the lawsuit. [Thanks to Steven H. Sholk for the lead.]

European Court Affirms Jurisdiction of Ecclesiastical Courts

In Nagy v. Hungary, (ECHR, Sept. 14, 2017), the Grand Chamber of the European Court of Human Rights, by a vote of 10-7, upheld the exclusive jurisdiction of ecclesiastical courts over contractual disputes that are matters of ecclesiastical law. In the case, a pastor in the Reformed Church of Hungary was suspended, and ultimately removed, from his position through church disciplinary proceedings because of statements he had made in a local newspaper. He then sued in civil courts for compensation that he says he was owed for the periods prior to his termination. When lower courts dismissed his claims, he argued that this violated his right under Article 6(1) of the European Convention on Human Rights to a fair trial by an independent and impartial tribunal established by law in determining his civil rights. The European Court's majority opinion held in part:

... [A]pplicant’s claim ... concerned an assertion that a pecuniary claim stemming from his ecclesiastical service, governed by ecclesiastical law, was actually to be regarded as falling under the civil law.... Given the overall legal and jurisprudential framework existing in Hungary ..., the domestic courts’ conclusion that the applicant’s pastoral service had been governed by ecclesiastical law and their decision to discontinue the proceedings cannot be deemed arbitrary or manifestly unreasonable.... [This] Court cannot but conclude that the applicant had no “right” which could be said, at least on arguable grounds, to be recognised under domestic law. To conclude otherwise would result in the creation by the Court, by way of interpretation of Article 6 § 1, of a substantive right which had no legal basis in the respondent State.

Four separate dissenting opinions were also filed. ADF issued a press release regarding the decision.