Trump Sends Holiday Greetings To Sikhs

On Nov. 4, the White House released a statement (full text) from President Trump sending "warm wishes to Sikh Americans and Sikhs around the world as they celebrate the birth anniversary of Guru Nanak Devji, the founder and first guru of Sikhism."

Recent Articles and Books of Interest

From SSRN:

• Scott Skinner-Thompson, The First Queer Right, (Michigan Law Review, Forthcoming).
• Michael A. Helfand, Implied Consent: A Primer and a Defense, (Connecticut Law Review, Vol. 50, Forthcoming).
• Yinka Olomojobi, Explaining the Osmosis of Identity Threats and Religious Violence, (October 31, 2017).
• Anna Su, Varieties of Burden in Religious Accommodations, (October 27, 2017).
• Lisa Mathews, Hobby Lobby and Hobbs to the Rescue: Clarifying Rluipa’s Confusing Substantial Burden Test for Land-Use Cases, (George Mason Law Review, Vol. 24, No. 4, 2017).
• Maureen Johnson, Trickle-Down Bullying and the Truly Great American Response: Can Responsible Rhetoric in Judicial Advocacy and Decision-Making Help Heal the Divisiveness of the Trump Presidency?, (25:4 American University Journal of Gender, Social Policy & the Law 445 (2017)).
• Shahbaz Ahmad Cheema, Mulla's Principles of Mahomedan Law in Pakistani Courts: Undoing/Unraveling the Colonial Enterprise?, (October 21, 2017).

From SmartCILP:

• Milena Sterio, Individual Criminal Responsibility for the Destruction of Religious and Historic Buildings: The Al Mahdi Case, 49 Case Western Reserve Journal of International Law 63-73 (2017).

Recent and Forthcoming Books:

• Michele F. Margolis,  From Politics to the Pews: How Partisanship and the Political Environment Shape Religious Identity, (Univ. of Chicago Press, (June 2018).
• Rumee Ahmed, Sharia Compliant: A User's Guide to Hacking Islamic Law, (Stanford Univ. Press, May 2018).
• Matthew Bowman, Christian: The Politics of a Word in America, (Harvard Univ. Press, April 2018).
• Martyn Frampton, The Muslim Brotherhood and the West: A History of Enmity and Engagement, (Belknap Press, Feb. 2018).
• Stephen E. Strang, God and Donald Trump, (Charisma House, Nov. 2017).
• Murat Akan, The Politics of Secularism: Religion, Diversity, and Institutional Change in France and Turkey, (Columbia Univ. Press, Sept. 2017).
• Ahmad Atif Ahmad, Islamic Law: Cases, Authorities and Worldview, (Bloomsbury Publishing, May 2017).

Citizenship Applicant Challenges "So Help Me God" In Naturalization Oath

Represented by activist Michael Newdow, a French citizen who is a permanent U.S. resident living in Massachusetts filed suit last week challenging the inclusion of the phrase "so held me God" in the Naturalization Oath. The complaint (full text) in Perrier-Bilbo v. Congress of the United States, (D MA, filed 11/2/2017), contends that the presence of these words in the oath violates the Establishment Clause, free exercise clause, RFRA, as well as plaitiff's due process and equal protection rights.  The citizenship application by Plaintiff, who is an atheist, was approved in 2009.  When she objected to the form of the oath at that time, was told that she could either participate in the oath ceremony and omit the “so help me God” language, or schedule a private oath ceremony where the government would not use that phrase. Neither of those alternatives are acceptable to her.  Her complaint contends in part:

By its very nature, an oath that concludes “so help me God” is asserting that God exists..... Moreover, even if the current oath were constitutional, the government of the United States has rendered Plaintiff, on the basis of her sincerely held religious beliefs, unable to take the oath that all others take. This is unfair, demeaning and improper. Plaintiff is unwilling to start her new life as an American citizen in some second-class status solely because she chooses to follow her religious precepts. Under the principles of equal protection, she demands the right to experience the elation, the pride, the sense of camaraderie, and the sense of belonging, which comes from joining her fellow new citizens as an equal participant in the naturalization oath ceremony.

Sacramento Bee reports on the lawsuit.

Recent Prisoner Free Exercise Cases

In Bethel v. Jenkins, 2017 U.S. App. LEXIS 22061 (6th Cir., Sept. 22, 2017), the 6th Circuit held that a district court correctly dismissed an Establishment Clause challenge, but should not have dismissed a free speech and procedural due process challenge, to a policy that barred inmate from receiving printed material ordered by a third party even directly from an approved vendor.

In Hargrove v. Holley, 2017 U.S. Dist. LEXIS 180284 (SD OH, Oct. 31, 2017), an Ohio federal magistrate judge recommended dismissal of an inmate's claim that compelled schooling without an Islamic curriculum violates his free exercise rights.

In Harris v. Cooper, 2017 U.S. Dist. LEXIS 181249 (ND CA, Nov. 1, 2017), a California federal magistrate judge allowed an inmate to move ahead against certain defendants with his claim that in a cell search his religious materials were confiscated as retaliation and part of a conspiracy to deny him parole because he is a Muslim.

In Maciejka v. Williams, 2017 U.S. Dist. LEXIS 182842 (SD L, Nov. 2, 2017), a Florida federal magistrate judge recommended ordering plaintiff, a former inmate, to file an amended complaint if he wishes to move ahead with his rambling allegations that while confined he was kept from attending Catholic religious services, and could not celebrate holidays, see chaplains or priests or keep religious publications and religious items such as a rosary and scapular.

Ecclesiastical Abstention Doctrine Does Not Bar School Administrator's Contract Claim

In Saint Augustine School v. Cropper, (KY Sup. Ct., Nov. 2, 2017), the Kentucky Supreme Court held that the ecclesiastical abstention doctrine does not prevent the former lay administrator of a Catholic elementary school from asserting a breach-of-contract claim, saying in part:

Saint Augustine's justification for the Cropper's dismissal stems from declining student enrollment and shrinking revenues. No matter the extent of Cropper's involvement in the religious life of Saint Augustine; adjudicating her damages claim for breach of her employment contract does not require the secular court's "wading into doctrinal waters"; it is simply the termination of the lay administrator at a parochial school. Even if Cropper had been a prominent actor in the religious life of the community, unless Saint Augustine- fired her for reasons associated with the application of church doctrine or governance, the ecclesiastical-abstention doctrine would not apply.

In the case, the school had specifically disclaimed reliance on the ministerial exception defense.

Chabad Gets Partial Win Under RLUIPA In Long-Running Suit

In a case that has wound its way through the courts for nearly ten years, this week a Connecticut federal district court gave a partial victory to the Orthodox Jewish Chabad organization which is seeking to expand a residential building it purchased in an area zoned as an Historic District.  In Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield, Connecticut, (D CT, Nov. 1, 2017), a Connecticut federal district court held that the Lichtfield Historic District Commission's denial of a Certificate of Appropriateness for the planned expansion placed a substantial burden on the religious exercise of Chabad in violation of the Religious Land Use and Institutionalized Persons Act.  However, the court concluded that Chabad needs to submit revised plans that eliminates the portion of the expansion that would serve as a residence for the rabbi. (See prior related posting.) [Thanks to Dan Dalton for the lead.]

Pakistan Court Fines and Jails Husband For Polygamous Marriage Without Wife's Consent

According to Deutsche Welle, for the first time a trial court in Pakistan has sided with the woman in a polygamy case.  A trial court in Lahore sentenced Shahzad Saqib to 6 months in jail and a fine equivalent to $1900 (US) for violating Pakistan's 2015 family law that requires the exiting wife's approval for a man to take a second wife. (Background). The court rejected the husband's argument that he did not need consent because Islam permits a man to have up to four wives.

Canada's Supreme Court Rejects Aboriginal Tribe's Religious Objection To Ski Resort

In Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), (Sup. Ct. Canada, Nov. 2, 2017), the Supreme Court of Canada rejected a claim by the aboriginal Ktunaxa Nation that government approval for the development of a ski resort on land they considered sacred would violate their constitutional right to freedom of religion under Section 2(a) of Canada's Charter of Rights and Freedoms as well as their Aboriginal treaty rights under Section 35 of the Constitution Act.  Chief Justice McLachlin, writing for 7 Justices held (as summarized by the court):

... the Ktunaxa are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it. Rather, they seek to protect the presence of Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it. This is a novel claim that would extend s. 2(a) beyond its scope and would put deeply held personal beliefs under judicial scrutiny. The state’s duty under s. 2(a) is not to protect the object of beliefs or the spiritual focal point of worship, such as Grizzly Bear Spirit. Rather, the state’s duty is to protect everyone’s freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination.

Justice Moldaver, writing for 2 Justices, found a substantial interference with religious beliefs, but concluded that it was justified as a proportionate balancing between the Ktunaxa’s s. 2(a) Charter right and the Minister’s statutory objectives. The court summarized their conclusion as to infringement of religious liberty:

... the Ktunaxa sincerely believe that Grizzly Bear Spirit inhabits Qat’muk, a body of sacred land in their religion, and that the Minister’s decision to approve the ski resort would sever their connection to Qat’muk and to Grizzly Bear Spirit. As a result, the Ktunaxa would no longer receive spiritual guidance and assistance from Grizzly Bear Spirit. Their religious beliefs in Grizzly Bear Spirit would become entirely devoid of religious significance, and accordingly, their prayers, ceremonies, and rituals associated with Grizzly Bear Spirit would become nothing more than empty words and hollow gestures. Moreover, without their spiritual connection to Qat’muk and to Grizzly Bear Spirit, the Ktunaxa would be unable to pass on their beliefs and practices to future generations. 

Lawyer's Daily has a lengthy report on the decision.

New Tax Bill Would Allow "529 Plans" For Parochial School Tuition

The Republican tax bill (full text) introduced yesterday (see prior posting) would allow parents to set up "529 Plans" for up to $10,000 per year of elementary and secondary school tuition, including tuition at religious schools. (Section 1202).  529 Plans, currently limited to saving for college expenses, are a method of earning tax-free income on educational savings.  The bill also allows a Section 529 plan to be set up for an "unborn child," defined in the proposal as a "child in utero," which is in turn defined in the bill as "a member of the species homo sapiens, at any stage of development, who is carried in the womb."

Republican Tax Bill Would End Johnson Amendment Ban On Partisan Sermons

As reported by CBS, House Republicans yesterday released their proposed tax reduction plan.  The bill (full text) titled "Tax Cuts and Jobs Act" includes a limited change in the Johnson Amendment that would allow sermons that endorse specific candidates. The Johnson Amendment prohibits Section 501(c)(3) non-profits from participating in partisan political campaigns.  Yesterday's proposal (Sec. 5201) would provide a limited exceptions to that ban as it applies to churches (and their integrated auxiliaries and conventions and associations of churches).  Here is the relevant portion of the proposed language in the bill:

... an organization described in section 508(c)(1)(A) shall not fail to be treated as organized and operated exclusively for a religious purpose, nor shall it be deemed to have participated in, or intervened in any political campaign on behalf of (or in opposition to) any candidate for public office, solely because of the content of any homily, sermon, teaching, dialectic, or other presentation made during religious services or gatherings, but only if the preparation and presentation of such content— (A) is in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose, and (B) results in the organization incurring not more than de minimis incremental expenses.

Orthodox Jews In Canada Challenge Brain Death As End-of-Life Test

According to the National Post, in the Canadian city of Toronto an Orthodox Jewish family has filed suit claiming that under the Charter of Rights and Freedoms they should be able to require a hospital to continue to treat their 25-year old son who was declared brain dead.  The family says that their religious beliefs reject the concept of brain death in favor of the end of heart beat as the test.  The court ordered the patent to temporarily be kept on life support while the case is pending.

Louisiana Governor Exceeded Authority In Expanding Non-Discrimination Protections

In Louisiana Department of Justice v. Edwards, (LA App, Nov. 1, 2017), a Louisiana state appeals court held that Louisiana Governor John Edwards exceeded his authority when he issued an Executive Order that extended non-discrimination provisions for state contracts and state employment to include sexual orientation and gender identity.  the court said in part:

[T]he Governor's Executive Order constituted an unconstitutional interference with the authority vested solely in the legislative branch of our state government by expanding the protections that currently exist in anti-discrimination laws rather than directing the faithful execution of the existing anti-discrimination laws of this state.

The Times-Picayune reports on the decision.

California Pregnancy Clinic Requirement Violates State Constitution

In Scharpen Foundation, Inc. v. Harris, (CA Super. Ct., Oct 30, 2017), a California state trial court held that the state's Reproductive FACT Act violates the free speech protections of Art. I, Sec. 2 of the California Constitution. The challenged statute requires licensed pregnancy counseling clinics to post or provide to patients a notice on the existence of publicly-funded family planning services, including contraception and abortion. Applying strict scrutiny, the court said in part:

There is no question that the State has a legitimate regulatory interest in the practice of the healing arts.  In the midst of this contentious political dispute the State commands that specific State authored words be mouthed by the clinic at the very beginning of its relationship with those who come to it for guidance.... The statute interferes with both the right of the clinician to speak and with the right of the patient to hear what the clinician would say in the absence of State censorship....

It is entirely proper for the State to take its position supporting access to abortion.... But its ability to impress free citizens into State service in this political dispute cannot be absolute....

Last year the U.S. 9th Circuit Court of Appeals upheld the California statute against free speech and free exercise challenges raised under the U.S. Constitution. (See prior posting.) Liberty Counsel issued a press release announcing this week's state court decision.

2nd Circuit: Religious Court Lacks Standing To Challenge Stay of Its Proceedings

In Bais Din of Mechon L’Hoyroa v. Congregation Birchos Yosef, (2d Cir., Nov. 1, 2017), the U.S. 2nd Circuit Court of Appeals affirmed a  district court's conclusion that a Jewish religious court lacked standing to challenge the application of the Bankruptcy Code's automatic stay provisions to proceedings in the religious court.  The 2nd Circuit said in part:

As the district court correctly concluded, the Bais Din failed to demonstrate that it suffered a pecuniary harm. Quite the opposite, the Bais Din did not even allege a pecuniary harm before the district court, claiming instead that the automatic stay inhibited the free exercise of religion by “preventing the Bais Din from issuing notices to or against” individuals who violate Jewish law’s prohibition on initiating proceedings in secular courts without prior permission from a rabbinical court. Whatever the merits of that claim, it does not reflect a pecuniary injury. Moreover, to the extent that the Bais Din seeks to vindicate a non-pecuniary injury, nothing in this or the district court’s opinion prevents it from filing a civil action.

Amicus Briefs In Masterpiece Cakeshop Now Available Online

The Masterpiece Cakeshop case will be argued before the Supreme Court on Dec. 5. Over 50 90 amicus briefs have been filed in the case. SCOTUSblog's case page has links to them, as well as to briefs of petitioner and respondent and to commentary on the case. The case pits the Colorado Civil Rights Commission against a baker who, for religious reasons, refused to create a wedding cake for a same-sex couple.

Bus Driver Can Move Ahead With Religious Objection To Fingerprinting

In Kaite v. Altoona Student Transportation, Inc., (WD PA, Oct. 30, 2017), a Pennsylvania federal district court allowed a school bus driver to proceed with her religious discrimination and retaliation claims against her employer.  A newly enacted state law required the driver to undergo a background check, including fingerprinting.  According to the court, plaintiff, a devout Christian, sought an accommodation because of her belief that fingerprinting is the "mark of the devil" which is forbidden by the Book of Revelation.  Defendant refused any accommodation and dismissed plaintiff.  Legal Intelligencer reports on the decision.

Barrett Confirmed For 7th Circuit After Controversy Over Her Religious Beliefs

The Hill reports that the U.S. Senate yesterday confirmed the nomination of Notre Dame Law Professor Amy Coney Barrett for a seat on the U.S. 7th Circuit Court of Appeals.  Three Democrats joined Republicans to approve the nomination by a vote of 55-43.  Barrett's nomination had become controversial because of her views on reproductive rights, abortion, LGBTQ rights, as well as her statement in a 1988 law review article urging Catholic judges to recuse themselves in capital cases because of Catholic teaching opposing capital punishment. (See prior posting.) After the Senate's confirmation vote, a spokesperson for The Catholic Association said:

Amy Coney Barrett's qualifications for the federal judiciary are undisputed, but abortion industry advocates continue their smear campaign by attacking Barrett's Catholic faith.  The full Senate rejected their attempt to hang a ‘Catholics need not apply’ sign outside the Senate chamber when it considers candidates to the judiciary.

7th Circuit Hears Arguments On Christmas Pageant Challenge

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in Freedom From Religion Foundation v. Concord Community Schools. (Audio of oral arguments).  In the case, an Indiana federal district court upheld the constitutionality of a modified version of the annual Christmas Spectacular put on by an Indiana high school.  Plaintiffs had challenged the pageant under the Establishment Clause. The court had previously issued a preliminary injunction against the 2014 and proposed 2015 versions that included a live Nativity Scene and Bible passages. (See prior posting.)  Subsequently the court awarded nominal damages and a declaratory judgment as to the earlier versions. (See prior posting.)  Courthouse News Service reports in more detail on yesterday's oral arguments.

New Contraceptive Coverage Rules Challenged As Notre Dame Plans To End Coverage

As previously reported, the Trump Administration has issued Interim Final Rules that expand religious exemptions from the Affordable Care Act contraceptive coverage mandate.  The Administration has also settled many of the lawsuits challenging the contraceptive coverage requirement.  Indiana Public Media reports that Notre Dame University last week informed students and employees that after the end of the current plan year, health insurance policies obtained through the University will no longer cover contraceptives for birth control. Apparently plans will still cover contraceptives where necessary to treat medical conditions.

Yesterday, three Notre Dame students, an employee of an Illinois university and an employee of a church filed suit in an Indiana federal district court challenging the new Interim Rules.  The complaint (full text) in Shiraef v. Hargan, (ND IN, filed 10/31/2017), contends:

3. Bypassing the legally-required notice and comment process, the Rules were promulgated to take effect immediately and nullify existing regulations that took over six years to implement and involved no less than six rounds of notice-and-comment rulemaking, including consideration of over 725,000 comments.

4. The Rules and their issuance violate the Administrative Procedure Act, the Establishment Clause of the First Amendment to the U.S. Constitution, the Due Process Clause of the Fifth Amendment to the U.S. Constitution including equal protection guarantees and the right to liberty, and the ACA.

Americans United issued a press release announcing the filing of the lawsuit.

Muslim Woman's Suit Over Search By Male Officer Is Dismissed

In Montgomery v. Town of Colonie, (ND NY, Oct. 30, 2017), a New York federal district court granted qualified immunity to a male police officer who conducted a pat-down search of a Muslim woman when she was arrested.  Dismissing this portion of plaintiff's claim for damages, the court said in part:

Montgomery does not cite a single authority holding that a police officer violates the First Amendment by performing a cross-gender pat-frisk of an observant Muslim.

The court however allowed plaintiff to move ahead with her Fourth Amendment and false imprisonment claims.