Court Blocks Trump's Memo On Transgender Enlistment And Service In Military

A D.C. federal district court yesterday issued a preliminary injunction barring enforcement of the portions of President Trump's Memorandum on Military Service by Transgender Individuals that would have prevented enlistment and service by transgender persons.  In a 76-page decision in Jane Doe 1 v. Trump, (D DC, Oct. 30, 2017), the court said in part:

As a form of government action that classifies people based on their gender identity, and disfavors a class of historically persecuted and politically powerless individuals, the President’s directives are subject to a fairly searching form of scrutiny. Plaintiffs claim that the President’s directives cannot survive such scrutiny because they are not genuinely based on legitimate concerns regarding military effectiveness or budget constraints, but are instead driven by a desire to express disapproval of transgender people generally. The Court finds that a number of factors— including the sheer breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the President’s announcement of them, the fact that the reasons given for them do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself—strongly suggest that Plaintiffs’ Fifth Amendment claim is meritorious.

The court held plaintiffs lack standing to challenge the Memorandum's provisions blocking funds for sex reassignment surgery. New York Times reports on the decision.

Catholic Nurse Sues Duke University Hospital Seeking Religious Accommodation

A lawsuit was filed last week against Duke University and the Duke University Health System by a Catholic emergency department nurse who claims that Duke University Hospital discriminated against her because she requested accommodation of her religious beliefs.  The complaint (full text) in Pedro v. Duke University, (MD NC, filed 10/27/2017), alleges in part:

7. Because of her Catholic faith, [plaintiff] objects to assisting in abortions, dispensing birth control and contraceptives, and receiving as well as administering vaccines. Ms. Pedro’s employer, Defendant Duke, discriminated against her because of these religious beliefs and practices.

8. Furthermore, after Ms. Pedro made known her religious beliefs and requested religious accommodations, Defendant Duke subjected her to a degrading series of actions designed to punish and retaliate against her for engaging in federally-protected activity.

Apparently the Hospital was willing to accommodate Pedro's objection to receiving vaccines, but not her objection to participating in abortions.

Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Township In Litigation With Indian Tribe Over Use of Prayer Grounds

In Mahwah, New Jersey, where most of the attention is on a lawsuit claiming that the township is attempting to keep out Orthodox Jews (see prior posting), NJ Advance Media reports on another trial under way also involving religious rights.  The township is attempting to force the Ramapough Lenape Indian Tribe to remove teepees and other structures the tribe erected on their 13.6 acre prayer ground on the Ramapo River at the base of a high-priced housing development. the tribe says the township is trying to criminalize its religious gatherings.  The township argues that the issue is zoning compliance in a conservation zone and flood plain. It says the tribe has created a camp ground that is not permitted under zoning regulations.

Egyptian Court Bans TV Show That Criticizes Traditional Sunni Doctrine

Yesterday Egypt's Administrative Court banned the broadcast of the TV show "With Islam."  As reported by Al-Ahram and Egypt Daily News, the show, hosted by Egyptian reformer Islam El-Beheiry, features video excerpts of talks by respected Salafi preachers followed by El-Beheiry's criticism of their statements.  The show appears on the privately-owned TV channel Al Qahera Wel Nas.  The suit was originally filed in 2015 by Al-Azhar Grand Imam Ahmed El-Tayeb who contended that El-Beheiry falsely criticized religious doctrines to make individuals question their beliefs. Yesterday;s court order bans showing of future as well as past episodes of With Islam, and also prohibits inviting El-Beheiry to appear on any other satellite TV channels.  In December 2015, El-Beheiry was sentenced to one year in prison for contempt of religion after he questioned the authenticity of certain Sunni religious texts. He was released one month early with a pardon from Egyptian President Abdel Fattah el-Sisi, and his show resumed in May.

Recent Articles of Interest

From SSRN:

• Michael J. T. McMillen, Enforceability of Certain Promises, Particularly Unilateral and Pre-Closing Promises: Secular and Shari'ah Concepts, (2017 Proceedings of Accounting and Auditing Organisation for Islamic Financial Institutions Shari'ah Board Conference).
• Ronald J. Colombo, An Antitrust Approach to Corporate Free Exercise Claims, (Volume 92.1 of the St. John’s Law Review, 2017).
• Elizabeth Heger Boyle, Shannon Golden & Wenjie Liao, The Catholic Church and International Law, (Annual Review of Law and Social Science, Vol. 13, pp. 395-411, 2017).
• Liam Elphick, Sexual Orientation and 'Gay Wedding Cake' Cases Under Australian Anti-Discrimination Legislation: A Fuller Approach to Religious Exemptions, (Adelaide Law Review, Vol. 38, No. 1, 2017).
• Shahbaz Ahmad Cheema & Zubair and Abbasi, Contribution of the Lahore High Court in the Development of Islamic Family Law in Pakistan, (October 21, 2017).
• Asif Khan & Maseeh Ullah, Judicial Patronage of ‘Honor Killings' in Pakistan: The Supreme Court's Persistent Adherence to the Doctrine of Grave and Sudden Provocation, (June 18, 2015).

Court Resolves Factional Religious Split Using "Neutral Principles" Approach

In Kelley v. Garuda, (Nassau Cty. NY Sup. Ct., Oct. 2, 2017), a New York trial court, deferring to resolutions passed by the Governing Body Commission of the International Society of Krishna Consciousness ("GBC") and applying neutral principles of law, resolved a factional theological split within the Freeport, New York ISKCON Temple. The court upheld a default judgment against defendants who had taken control of the Temple, saying in part:

Plaintiffs' purchased the property well before the Defendants' arrival and interference with the Plaintiffs' use and enjoyment of the property. Prior to the 2005 "election" where Gupta and his adherents purportedly changed the leadership of the Freeport Temple, the Plaintiffs sufficiently established that all financial and ecclesiastical issues regarding the Freeport Temple were decided and/or approved by the GBC or its chosen delegates....

Further evidence of the Plaintiffs' ownership and control over the Freeport Temple is their constitution, the ISKCON Law Book, which creates an express trust in favor of the Society at large under the control of the GBC....

The Founder also established a Trust in the second Article of his Will which declared that each ISKCON temple would be held for the benefit of the ISKCON Society at large. The language of the Trust provision specifies that the GBC would continue to manage the ISKCON Society in perpetuity.

Recent Prisoner Free Exercise Cases

In Abdullah v. Cohen, 2017 U.S. Dist. LEXIS 174961 (D NJ, Oct. 23, 2017), a New Jersey federal district court dismissed without prejudice an inmate's suit alleging that hie was not on the Ramadan list and that his isolation in jail prevents him from practicing his religion.

In Green v. Frank Parish Detention Center, 2017 U.S. Dist. LEXIS 175215 (WD LA, Oct. 20, 2017), a Louisiana federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 175704, Sept. 19, 2017) and dismissed a Muslim inmate's complaint that group Jumah religious services are not offered on Fridays.

In Smith v. Drawbridge, 2017 U.S. Dist. LEXIS 175014 (WD OK, Oct. 23, 2017), an Oklahoma federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 175923,  Sept. 8, 2017) while dismissing a number of claims, allowed an Orthodox Jewish inmate to move ahead with his complaint that the chaplain consistently denied requests for religious accommodation as to food and various religious items and observances.

In Haslett v. Arnold, 2017 U.S. Dist. LEXIS 175988 (SD IL, Oct. 24, 2017), an Illinois federal district court allowed a Muslim inmate to move ahead with his complaint that he was not allowed to observe the Ramadan fast.

In Watkins v. Stogner, 2017 U.S. Dist. LEXIS 176502 (D NV, Oct. 25, 2017), a Nevada federal magistrate judge recommended dismissing a Muslim inmate's complaint over the manner in which inmates were permitted to celebrate Eid al-Fitr.  UPDATE: The court adopted the magistrate's recommendation, 2017 U.S. Dist. LEXIS 212202 (Dec. 27, 2017).

In Trammell v. McDonnell, 2017 U.S. Dist. LEXIS 177229 (CD CA, Oct. 25, 2017), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that during a one week period he was not provided with Ramadan meals or was provided them only after sunrise.

In Saif'ullah v. Cruzen, 2017 U.S. Dist. LEXIS 177873  and Smith v. Cruzen, 2017 U.S. Dist. LEXIS 178733 (ND CA, Oct. 26, 2017), a California federal district court dismissed inmates' complaints that on one evening during Ramadan Muslim inmates were interrupted and stopped from completing a congregational prayer session.

In Fisk v. Warren County Sheriff's Department, 2017 U.S. Dist. LEXIS 178128 (ED TN, Oct. 27, 2017), a Tennessee federal district court dismissed with leave to amend an inmate's claim that he was denied the things he needed to practice his religion, and dismissed his complaint that he was not permitted to attend his mother's funeral.

British Court Upholds Removal of Christian Social Work Student Over Facebook Comments

As reported by The Guardian and by a press release from Christian Concern, a British trial court judge yesterday upheld a decision by Sheffield University to remove graduate student Felix Ngole from his 2-year MA program in Social Work because of comments he posted on Facebook.  In 2015, commenting on the widely publicized case of Kentucky county clerk Kim Davis, Ngole, a devout Christian, said: "same sex marriage is a sin whether we like it or not. It is God’s words and man’s sentiments would not change His words." Ngole argued that the University's action infringed his free expression rights.  High Court Judge Rowena Collins Rice ruled, however:

Public religious speech has to be looked at in a regulated context from the perspective of a public readership. Social workers have considerable power over the lives of vulnerable service users and trust is a precious professional commodity.

Mississippi Suit On Gay Marriage Recusals Is Reopened

In June, the U.S. 5th Circuit Court of Appeals dismissed for lack of standing a challenge to Mississippi's broad Conscience Protection Act. (See prior posting.) In October, an en banc rehearing was denied.  In light of this, yesterday a Mississippi federal district court in Campaign for Southern Equality v. Bryant, (SD MI, Oct. 27, 2017), issued an order (full text) reopening a challenge to the law insofar as it allows county clerks to recuse themselves from issuing marriage licenses to same-sex couples because of religious or moral objections to same-sex marriage.  The Order also authorized plaintiffs to serve interrogatories to determine how many Clerk's Offices have employees that have sought to recuse themselves, and how the recusals are handled. AP reports on the order.

Pence: US Will Fund Faith-Based Groups Instead of UN In Mid-East Relief

On Wednesday evening, Vice President Mike Pence spoke to the In Defense of Christians Solidarity Dinner in Washington, D.C. (full text of remarks).  He said in part:

In Egypt, we see the bombing of churches during Palm Sunday celebrations -- a day of hope transformed into a day of horror.

In Iraq, we see monasteries demolished, priests and monks beheaded, the two-millennia-old Christian tradition in Mosul clinging for survival.

In Syria, we see ancient communities burned to the ground, believers tortured for confessing Christ, and women and children sold into slavery.

Let me assure you tonight, President Trump and I see these crimes for what they are -- vile acts of persecution animated by hatred for Christians and the Gospel of Christ. And so too does this President know who and what has perpetrated these crimes, and he calls them by name -- radical Islamic terrorists....

Here’s the sad reality: The United Nations claims that more than 160 projects are in Christian areas, but for a third of those projects, there are no Christians to help. The believers in Nineveh, Iraq, have had less than 2 percent of their housing needs addressed, and the majority of Christians and Yazidis remain in shelters....

Our fellow Christians and all who are persecuted in the Middle East should not have to rely on multinational institutions when America can help them directly. And tonight, it is my privilege to announce that President Trump has ordered the State Department to stop funding ineffective relief efforts at the United Nations. And from this day forward, America will provide support directly to persecuted communities through USAID.

We will no longer rely on the United Nations alone to assist persecuted Christians and minorities in the wake of genocide and the atrocities of terrorist groups. The United States will work hand-in-hand from this day forward with faith-based groups and private organizations to help those who are persecuted for their faith.

Marcus Nominated For Department of Education Civil Rights Post

The White House yesterday announced that President Trump will nominate Kenneth L. Marcus as Assistant Secretary for Civil Rights in the Department of Education  Marcus is president of the Brandeis Center for Human Rights Under Law, an organization devoted to combating anti-Semitism on college campuses. According to the Chronicle of Higher Education:

Mr. Marcus, who is also a visiting professor of equality and justice at Baruch College of the City University of New York, served under President George W. Bush as acting assistant secretary for civil rights, leading the Office for Civil Rights, or OCR. Since leaving the department, Mr. Marcus has been an outspoken critic of anti-Semitism on campuses. He previously served as director of the Initiative on Anti-Semitism at the Institute for Marcus Jewish and Community Research, in San Francisco.

Wedding Invite Designers Lose Challenge To Public Accommodation Law

In Brush & Nib Studio L.C. v. City of Phoenix, (AZ Super. Ct., Oct. 25, 2017). an Arizona trial court rejected challenges by a studio that creates custom wedding invitation and wedding products to the city of Phoenix's public accommodation anti-discrimination law.  Plaintiffs, because of the Christian religious beliefs, intend to refuse to produce custom designed products for same-sex couples,  The court rejected plaintiffs' claim that this violates their free speech rights under the Arizona Constitution, concluding that any impact on speech is merely an incidental, content-neutral impact of an ordinance directed at combating discrimination on the basis of sexual orientation.  The law survives the intermediate level scrutiny applied in such cases.  The court also rejected plaintiffs' claim under the state's Free Exercise of Religion Act, saying in part:

Nothing about the ordinance has prevented the Plaintiffs from participating in the customs of their religious beliefs or has burdened the practice of their religion in any way.

In a press release, ADF says that an appeal is planned.  The press release also contains links to various pleadings in the case.  Arizona Republic reports on the decision.

Israel's High Court Upholds Local Law Allowing Supermarkets To Open on Sabbath

According to the Jerusalem Post, in Israel yesterday an expanded panel of the country's High Court of Justice upheld a Tel Aviv municipal bylaw that allows 165 large supermarkets to remain open on the Sabbath. Small stores which must close because of the Law for Hours of Work and Rest, which prohibits requiring employees to work on their day of rest, argued that the Tel Aviv ordinance created unfair competition. Orthodox Jewish lawmakers say they will introduce legislation in the Knesset to overrule the decision. [Thanks to Steven H. Sholk for the lead.]

Judge Resigns Over His Refusal To Handle Gay Adoptions

According to a report from WDRB yesterday, Kentucky Family Court  Judge W. Mitchell Nance has resigned rather than defend against charges filed against him by the Judicial Conduct Commission.  Nance had sent out a general order to attorneys informing them that he would not hear cases involving adoptions by gays or lesbians.  Nance had argued that his religious beliefs and convictions required him to recuse himself in such cases. (See prior related posting.) [Thanks to Tom E. Rutledge for the lead.]

HHS Seeks Comments on Faith-Based Participation In Programs

The Department of Health and Human Services yesterday published a Release (full text)  in the Federal Register seeking comment on removal of barriers that may exist to participation in HHS programs and grants for faith-based organizations.  The Release says in part:

HHS seeks input from the public and relevant stakeholders on potential changes that could be made to existing HHS regulations or guidance to ensure that faith-based organizations and their religious beliefs and moral convictions are properly accommodated, that faith based organizations are not required to act contrary to their religious beliefs or moral convictions (as a recipient, subrecipient, contractor, sub-contractor, or otherwise) or are otherwise not restricted, excluded, substantially burdened, discriminated against, or disproportionately disadvantaged in HHS-conducted or funded programs or activities (including those administered by state and local governments) because of their religious character, identity, beliefs, or moral convictions

HHS also seeks input on whether faith-based organizations could face potential obstacles to participation in state or locally funded programs, or restrictions on their privately funded activities, because of HHS requirements imposed on state and local governments as a condition of receiving HHS funding.

Catholic Philly reports on the Release.

Indiana Sex Offenders Not Banned From Churches

In John Doe 1 v. Boone County Prosecutor, (IN App., Oct. 24, 2017), the Indiana Court of Appeals held that the state's sex offender law does not prohibit serious sex offenders from attending their church, even if the church conducts Sunday school or provides child care at the same site.  Indiana law prohibits "serious sex offenders" from entering "school property."  The Court concluded:

Churches and religious instruction are not schools, nor do they become so by use of the popular and common name of “Sunday school.”

Zionsville (IN) Times Sentinel reports on the decision.

New Jersey Sues Township Over Attempts To Exclude Orthodox Jews

Yesterday, New Jersey's Attorney general filed a religious discrimination suit against Mahwah Township.  The complaint (full text) in Porrino v. Township of Mahwah, (NJ Super. Ct., filed 10/24/2017) is summarized in a press release from the Attorney General's Office:

Likening the conduct of Mahwah township officials to 1950s-era “white flight” suburbanites who sought to keep African-Americans from moving into their neighborhoods, Attorney General Christopher S. Porrino announced today that the State has filed a Superior Court complaint against the Mahwah Township Council and the Township of Mahwah alleging that, in an effort to stave off a feared influx of Orthodox Jewish persons from outside New Jersey, it approved two unlawfully discriminatory ordinances.

One of those ordinances discriminated by banning non-New-Jersey-residents from using Mahwah’s public parks, the State alleges. The other – an ordinance amendment – discriminated by effectively banning the posting, on utility poles, of plastic strips called “lechis” that denote the boundaries of an eruv used by Sabbath-observant Orthodox Jews. The complaint also challenges actions the township has taken to have an existing eruv removed.

[Thanks to Steven H. Sholk for the lead.] 

Court Rejects Objections To Refusal To Reschedule Trial Dates For Alleged Religious Reasons

In People v. Alliance Warburg Capital Management, (NY Cty. Sup. Ct., Oct. 17, 2017), a New York trial court rejected religious free exercise arguments by defendant who had been convicted of defrauding investors out of over $4 million.  Defendant objected to the court's refusal during trial to agree to hold no sessions on Fridays-- though only one session was in fact held on a Friday.  The state did not object to defendant's request.  The court found defendant's religious claims to insincere.  Defendant claimed to be Jewish and contended that "he was an adherent of Kabbalah Judaism and that the tenets of that faith required an observance with respect to "sundown in Israel, not just sundown here in the U.S...."

The court observed that defendant had repeatedly used religion to perpetrate his frauds.  It concluded:

The right to the free exercise of religion is one of our most precious liberties. The use of religion to perpetrate fraud, on the other hand, is abhorrent. This Court, as others, obviously does not make every decision to vindicate a principle. Often, efficiency and the agreement of the parties are controlling. In this case, however, the principle was also important. It was important that Mr. Canady not use religion to defraud the court — as he had done on multiple prior occasions to defraud his victims.

Supreme Court Dismisses As Moot Remaining Travel Ban Challenge On Its Docket

Yesterday, as President Trump's prior Executive Order barring admission of refugees expired and a new Executive Order took effect, the U.S. Supreme Court issued an order (full text) in Trump v. Hawaii in which it had previously granted review to decide on the constitutionality of the President's second travel ban.  In the order the Court vacated the judgment below and remanded to the 9th Circuit with instructions to dismiss as moot the challenge to the prior Executive Order.  Justice Sotomayor dissented from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted. The Court earlier dismissed another challenge on similar grounds. (See prior posting.)

New Executive Order Restarts Refugee Admissions With Increased Vetting

President Trump today issued an Executive Order (full text) resuming the admission of refugees to the United States, but with increased vetting.  The Executive Order provides rather cryptically for a 90-day review period to determine "whether any actions taken to address the risks to the security and welfare of the United States presented by permitting any category of refugees to enter this country should be modified or terminated..."  Politico reports on the meaning of this provision as provided by administration officials:

The order initiates a new 90-day review period for the administration to conduct an “in-depth threat assessment” of the 11 countries, according to a senior administration official.

The administration did not disclose the 11 countries, but based on statements from senior administration officials they appear to be: Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria and Yemen. All except for North Korea are majority-Muslim.

During the 90-day review period, refugee admissions from the 11 nations will be permitted on a case-by-case basis if the person’s entry is in the national interest and “poses no threat to the security or welfare of the United States,” the official said.