Recent Articles and Books of Interest

From SSRN:

• Catherine E. Smith, et. al., Brief of Amici Curiae Scholars of The Constitutional Rights and Interests Of Children in Support of Respondents in Masterpiece Cakeshop LTD, et al v. Colorado Civil Rights Commission, (U Denver Legal Studies Research Paper, Working Paper No. 17-39 (Nov. 2017)).
• Ian S. Speir, 'A Beacon on Our Coast': Religious Freedom as the First Freedom at Home and Abroad, (Providence, Forthcoming).
• Sahar F. Aziz, A Muslim Registry: The Precursor to Internment?, (Brigham Young University Law Review, Forthcoming).
• Antony Barone Kolenc, Putting Faith in Europe: Should the U.S. Supreme Court Learn from the European Court of Human Rights?, (Georgia Journal of International and Comparative Law, Vol. 45, No. 1, 2016).
• Luke W. Goodrich & Rachel N. Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, (Seton Hall Law Review, Forthcoming).
• Holning Lau & Hillary Li, American Equal Protection and Global Convergence, (Fordham Law Review, Vol. 86, 2017).

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

• Rung-Guang Lin, Towards Religious Institutionalism? The Future of the Regulation of Religious Institutions in Taiwan, (November 5, 2017).
• Masua Sagiv, The State and New Religious Movements, (Contemporary Alternative Spiritualities in Israel 115 (Shai Feraro and James R. Lewis eds., 2017)).
• Margaret D. Hagan, Human Rights Melodrama: A Literary Analysis of Reports of Police Violence Against Hungarian Roms, (Journal of Human Rights, Taylor and Francis, Pages 401-415 (2016).
• Ido Katri, The Banishment of Isaac: Racial Signifiers of Gender Performance, (University of Toronto Law Journal 68:1(2017)).

From SmartCILP and elsewhere:

• Mark Strasser, Neutrality, Accommodation, and Conscience Clause Legislation, 8 Alabama Civil Rights & Civil Liberties Law Review 197-238 (2017).
• Emma Green, The Quiet Religious-Freedom Fight That Is Remaking America, The Atlantic (Nov. 5, 2017).

Recent & Forthcoming Books:

• S.I. Strong, Transforming Religious Liberties: A New Theory of Religious Rights for National and International Legal Systems, (Cambridge Univ. Press, Oct. 2017).
• Michel Rosenfeld & Susanna Mancini, The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality, (Cambridge Univ. Press, March 2018).

Recent Prisoner Free Exercise Cases

In Garner v. Muenchow, (7th Cir., Nov. 8, 2017), the 7th Circuit reversed a Wisconsin federal district court grant of summary judgment for defendants in a suit in which a Muslim inmate alleged free exercise and equal protection violations growing out of efforts to prevent him from obtaining a copy of the Qur'an while in segregation.

In Cavin v. Heyns, 2017 U.S. App. LEXIS 22582 (6th Cir., Sept. 12, 2017), the 6th Circuit affirmed a finding of qualified immunity in a suit by an inmate challenging a blanket ban on attendance at religious services for prisoners on toplock status.

In Broyles v. Presley, 2017 U.S. Dist. LEXIS 182968 (D KA, Nov. 3, 2017), a Kansas federal district court held that plaintiff had stated a free exercise claim regarding his inability to receive a kosher diet.  The court ordered relevant jail officials to investigate the facts, determine what action should be taken and file this as a report along with defendants' answer.

In Sears v. Thomas, 2017 U.S. Dist. LEXIS 186498 (SD FL, Nov. 8, 2017), a Florida federal district court rejected part of a magistrate's recommendation (2017 U.S. Dist. LEXIS 137998, Aug. 25, 2017) and held that an inmate can proceed with his claim for nominal damages against a correctional officer who insisted that a chain and crucifix discovered in plaintiff's cell must be returned to the vendor who sent it.

Challenge To FEMA Policy On Disaster Aid To Churches Moves Ahead

In Harvest Family Church v. Federal Emergency Management Agency, (SD TX, Nov. 9, 2017), a Texas federal district court refused to grant FEMA a 30-day stay in a suit by three churches challenging FEMA's policy denying disaster aid to houses of worship.  FEMA, which refused defend the merits of its policy before the court, sought the stay because it is reconsidering the policy.  The court said it will delay a ruling on plaintiffs' request for a temporary injunction until December 1.  It added:

The Court has received instructive briefing from amici in support of Plaintiffs’ Motion, for which it expresses gratitude. Nevertheless ... “Without opponents, the adversary system cannot function.”... The Court would therefore welcome amici with differing views.

If, by December 1, FEMA’s position remains unchanged, the Court will assume that FEMA concedes, at the very least, Plaintiffs’ likelihood of success on the merits of this case and that the injury being suffered by Plaintiffs is irreparable. The Court will then issue its ruling on Plaintiffs’ request for preliminary relief.

Senate Republicans' Version of Tax Bill Retains Johnson Amendment Restrictions

As previously reported, the tax cut legislation introduced by Republicans in the House of Representatives eliminates some of the restrictions on political speech by non-profits currently imposed by the Johnson Amendment.  Senate Republicans have drafted their own version of a tax bill.  As reported by The Hill, Republicans on Thursday released a 253- page description of the bill (full text), though not the full legislative language.  It does not appear that the Senate is proposing any change to the Johnson Amendment's current restrictions on political intervention by non-profits. The Senate bill is scheduled for markup by the Finance Committee on Nov. 13.

NY Voters Approve Kiryas Joel Becoming Separate Town

JTA reports on Tuesday's election results in the town of Monroe, New York where voters by over an 80% majority approved a proposal that will allow the Village of Kiryas Joel to secede and become its own separate Yiddish speaking town. The vote resolves tensions growing out of Kiryas Joel's annexation of land from Monroe. (See prior posting.)  Kiryas Joel was founded by Satmar Rebbe Joel Teitelbaum. The new town will be named Town of Palm Tree, an English translation of "Teitelbaum".  It will be New York's first new town in 35 years.

Judge Says Suit Charging Campus Anti-Semitism Should be Refiled With Focus On Current Situation

Jewish News of Northern California reports that after a 57-minute pretrial hearing in Mandel v. Board of Trustees of the California State University, federal district court Judge William Orrick said he would dismiss the case with leave to amend. The suit alleges that  "a consistent pattern of anti-Jewish animus has emerged" at San Francisco State University since 1968. (See prior posting.)  The judge instructed that an amended complaint should focus on the current situation at SFSU, not on a 50-year history of anti-Semitism there.

9th Circuit Hears Oral Arguments In School Board Invocation Case

Yesterday the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full oral arguments) in Freedom From Religion foundation v. Chino Unified School District. In the case, a California federal district court held that invocations at school board meetings are governed by case law relating to school prayer, not by the line of cases on legislative prayer.  Courthouse News Service reports on the oral arguments.

Missouri Offers State Employees Health Policies That Exclude Abortion, Contraception, Sterilization

As previously reported, last year a Missouri federal district court in Wieland v. HHS enjoined the federal government from enforcing the Affordable Care Act against a state legislator who, on religious grounds, objected to participating in a healthcare plan for himself, his wife and his daughters that provides coverage for contraceptives.  Now according to a press release from the Thomas More Society, the state of Missouri has begun to offer all state employees the option of selecting a health insurance plan that excludes coverage for abortion, contraceptives or sterilization.

Marked-Up House Version of Tax Bill Includes Expanded, But Time-Limited, Partial Repeal of Johnson Amendment

The House Ways and Means Committee today during its markup of HR 1, the Tax Cuts and Jobs Act, approved an amendment (full text) that, if finally adopted, will expand the partial repeal of the Johnson Amendment that was in the original version, but will revert to the current Johnson Amendment after 5 years. (See prior posting.)  The original version would have permitted houses of worship to include political endorsement in sermons by clergy.  The amended version that now goes to the full House expands that to allow political endorsements in statements by any Section 501(c)(3) organization when the statement is made in the ordinary course of its exempt activities without incurring additional expense.  Here is the amended text of the section, marked up by me to show additions and deletions from the original HR 1:

SEC. 5201. CHURCHES 501 (c)(3) ORGANIZATIONS PERMITTED TO MAKE STATEMENTS RELATING TO POLITICAL CAMPAIGN IN ORDINARY COURSE OF RELIGIOUS SERVICES AND ACTIVITIES.

(a) IN GENERAL.—Section 501 is amended by adding at the end the following new subsection:

"(s) SPECIAL RULE RELATING TO POLITICAL CAMPAIGN STATEMENTS OF CHURCHES, INTEGRATED AUXILIARIES, ETC. ORGANIZATIONS DESCRIBED IN SUBSECTION (c)(3) —

(1) IN GENERAL.—For purposes of subsection (c)(3) and sections 170(c)(2), 2055, 2106, 2522, and 4955, an organization described in section 508(c)(1)(A) shall not fail to be treated as organized and operated exclusively for a religious purpose purpose described in subsection (c)(3), 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 content of any statement which—

(A) is in is made 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.

 (2) TERMINATION.—Paragraph (1) shall not apply to taxable years beginning after December 31, 2023. 

(b) EFFECTIVE DATE.—The amendments made by this section shall apply to taxable years ending after the date of the enactment of this Act beginning after December 31, 2018."

[Thanks to Samuel Brunson via Religionlaw for the lead.] 

Republican Senators Call For Roy Moore To Withdraw From Senate Race After Sex Charges

According to the Washington Post, a number of Republican senators are calling for Roy Moore, Alabama candidate for the U.S. Senate, to withdraw if charges in an earlier Washington Post article today are true.  The article, based on detailed interviews with named accusers, says that Moore engaged in improper sexual contact with a 14-year old girl nearly 40 years ago when Moore was a 32 year-old assistant district attorney.  Three other women say Moore tried to date them when they were between 16 and 18 years old.  Moore, well known for his battles defending a Ten Commandments monument and opposing same-sex marriage, says that the charges "are completely false and are a desperate political attack by the National Democrat Party and the Washington Post."  The special election in Alabama in which Moore faces Democratic nominee Doug Jones is scheduled for Dec. 12.

UPDATE: Defending Moore, Alabama State Auditor Jim Zeigler told the Washington Examiner:  "[T]ake Joseph and Mary. Mary was a teenager and Joseph was an adult carpenter. They became parents of Jesus. There’s just nothing immoral or illegal here. Maybe just a little bit unusual."

Italian Artist Charged With Criminal Blasphemy

The art blog Hyperallergic this week reports that in Italy, the anonymous artist known as Hogre was arrested and charged with publicly insulting religion in violation of Sec. 403 (Criminal Blasphemy) of Italy's Criminal Code.  According to the blog's report:

Hogre was one of two artists who, on June 1 of this year, placed satirical posters in bus stop advertising spaces in the Italian capital. Hogre’s poster “Ecce homo erectus” depicts Jesus with a conspicuous erection, resting one hand on the head of a praying, kneeling child. This was a response to sexual abuse charges against Cardinal Pell, the third highest-ranking Vatican official.

If convicted, the artist could face a fine of €1000 to €5000.  Hyperallergic's blog post includes a photo of the offending poster.

House Holds Hearing On Campus Anti-Semitism

On Nov. 7, the House Judiciary Committee held a hearing titled Examining Anti-Semitism on College Campuses.  A video of the full hearing and written transcripts of the prepared testimony of nine witnesses are available on the committee's website.  As reported by AP, following the hearing Rep. Jamie Raskin (D-MD) proposed legislation to expand Title VI of the 1964 Civil Rights Act to bar discrimination on the basis of religion by programs receiving federal financial assistance.  Currently Title VI only bars discrimination on the basis of race, color or national origin.

Organization Launches Annual "Friend or Foe Christmas" Campaign

The advocacy organization Liberty Counsel announced yesterday that it is launching its 15th annual "Friend or Foe Christmas Campaign."  Its campaign attempts to counter removal of the celebration of Christmas in schools, on public property and by retailers.  It has made available a Legal Memorandum on Public Celebration of Religious Holidays.

Indonesian Constitutional Court Requires Recognition of Indigenous Religions

According to an AP report, yesterday Indonesia's Constitutional Court handed down a ruling that will require recognition of adherents of the country's indigenous religions.  In the past, Indonesian law has required citizens in obtaining an identity card to select one of six religions-- Islam, Protestantism, Catholicism, Buddhism, Hinduism or Confucianism.  If they selected none of these, they risked prosecution under Indonesia's blasphemy law for being an atheist. Yesterday's ruling concluded that this arrangement is discriminatory.  According to the Jakarta Globe: "The Court recommended the creation of a seventh category – 'believers of the faith,' or penghayat kepercayaan.a'"

Suit Challenges Quebec's New Anti-Niqab Law

As announced by the Canadian Civil Liberties Association, a suit was filed in a Quebec Superior Court yesterday challenging the constitutionality of Sec. 10 of Quebec's recently enacted Religious Neutrality Law (see prior posting).  The law provides that public sector employees in carrying out their functions may not cover their faces, and that private citizens must have their faces uncovered when receiving public services.  The complaint (full text) in National Council of Canadian Muslims v. Attorney General of Quebec, (Que. Super., filed 11/7/2017) contends that Sec. 10 of the violates freedom of religion and equality protections of the Quebec and Canadian Charters of Rights and Freedoms.  It asserts that the Act's requirement particularly impacts Muslim women.

Notre Dame, In About Face, Will Continue Contraceptive Coverage Under Accommodation Rules

Reversing an announcement made last month (see prior posting), Notre Dame University yesterday told employees that they will continue to receive health insurance contraceptive coverage.  Under accommodation rules developed by the Obama Administration, the coverage is provided without cost by the insurance company directly to employees, without Notre Dame paying for it.  As reported by AP, the university thought that its insurer would end the no-cost coverage now that changes in Affordable Care Act rules allow religious non-profits to opt out of objectionable coverage. However the insurer has indicated that it will continue to provide the coverage.  A Notre Dame spokesman said:

Recognizing ... the plurality of religious and other convictions among its employees, [the University] will not interfere with the provision of contraceptives that will be administered and funded independently of the University.

In a similar reversal, Notre Dame also told students yesterday that after August they will still be able to obtain contraceptive coverage by electing it separately through their student health plan.

UPDATE: Since Notre Dame has a self-insured plan, references to "insurer" should be read as a reference to the third party administrator and benefits manager.  Sycamore Trust, an alumni group dedicated to preserving Notre Dame's Catholic identity strongly criticized the university's action.

6th Circuit Dismisses Challenge To Michigan Procedures For Vaccination Exemption

In Nikolao v. Lyon, (6th Cir., Nov. 7, 2017), the U.S. 6th Circuit Court of Appeals ordered dismissal of a challenge to Michigan's procedures for granting school children a religious exemption from vaccination requirements. In order to obtain an exemption, a parent is required to visit the local health department and explain the basis for the objection.  A health worker must certify that the parent has received education on the benefits of immunizations and the risks involved in not receiving them.  Also the state has published a series of "Waiver Notes" containing responses to parental objections, including religious objections.  The court held that plaintiff, a mother who asserted her Catholic religious beliefs as the basis for the request, lacked standing to raise a free exercise claim, saying in part:

While Nikolao has presented facts suggesting that she was exposed to religious information with which she did not agree, she has given no indication that the information coerced her into doing or not doing anything. Nikolao went to the WCDH to receive a vaccination exemption and left with one.

The court found that plaintiff did have standing to assert an Establishment Clause claim, but concluded that no Establishment Clause violation was shown, saying in part:

The Certification Rule only requires local health workers to have a conversation with objecting parents.... As part of that conversation, the state may offer its own take on a parent’s objections. But the Certification Rule does not allow state officials to withhold an exemption based on the legitimacy of those objections. Were that the case, the outcome here may very well be different....

Similarly, the Religious Waiver Note does not violate the Establishment Clause. The Note outlines a health department worker’s available responses to religious objections concerning vaccination. To be sure, this document contains information about specific religions.... But, again, the purpose of providing this information is secular.

[Thanks to Tom Rutledge for the lead.]

USDA Memo Gives Meat Packing Plants Broad Religious Speech Protection

ADF reported yesterday on a new Guidance Memorandum on First Amendment Policy issued by the U.S. Department of Agriculture Office of Food Safety (full text), and a related Q&A webpage.  While the Guidance Memorandum appears to flow from President Trump's Executive Order Promoting Free Speech and Religious Liberty issued in May (see prior posting), and a follow-on Memo from the Secretary of Agriculture, it also resolves a particular dispute relating to a Michigan meat-packing plant. Federal meat inspectors working at the plant had removed an article placed on the plant's break room table that expressed religious views opposed to same-sex marriage.  Apparently a USDA official, invoking an Obama-era Policy Statement on sexual harassment,  had threatened to withdraw all its inspectors if the article reappeared.  The new Guidance Memorandum gives broad permission for employees and supervisors at meat plants to express religious views, saying in part:

Employees are permitted to engage in religious expression directed at fellow employees and may attempt to persuade other employees of the correctness of their views.  Religious views should be treated the same as any other comparable speech not involving religion. Proselytizing is as entitled to constitutional protection as any other form of speech.

Supervisors are also free to engage in speech about religion.  While supervisors may not impose unfair work conditions on employees who do not share their religious beliefs, their personal views concerning religion are still protected by the First Amendment.  As a result, supervisors may also express their sincere religious views without fear of sanctions.

Some employers in facilities that are inspected by USDA may wish to display religious icons, religious pamphlets, or faith-based messages in publicly available work areas or on public websites.  Others may support employee religious organizations and openly express their own religious beliefs or practices in the workplace.  USDA employees must act to avoid the limiting or chilling of protected speech.

The Guidance Memorandum adds that USDA employees who believe they are subject to discrimination, harassment or intimidation may still exercise their rights.

University's Anti-Harassment Policy Upheld Over Prof's Free Speech Claims

In Board of Trustees of Purdue University v. Eisenstein, (IN App., Oct. 30, 2017), and Indiana Court of Appeals held that a trial court should have dismissed a lawsuit brought by an associate professor at Purdue University Calumet against the university, its board of trustees and several of its faculty members.  Associate Professor Maurice Eisenstein was accused by several students and faculty of making anti-Muslim and anti-Black statements in his Introduction to Judaism class and in Facebook postings.  A number of students and faculty, as well as the Muslim Student Association, filed harassment complaints against Eisenstein.  Subsequently Eisenstein made derogatory comments to two of the faculty who had complained, and they filed additional charges of retaliation.  The university ultimately upheld only the retaliation claims.  Eisenstein then sued claiming, among other things, that the university's retaliation policy is unconstitutionally vague and that his free speech rights were infringed. He also alleged breach of contract and other claims. In a 42-page opinion, the court rejected Eisenstein's claims on a number of grounds.  Inside Higher Ed reports on the decision.

Canada's Supreme Court Hears Arguments In Ecclesiastical Abstention Case

On Nov. 2, the Supreme Court of Canada heard oral argument (video of full oral arguments) in Judicial Committee of the Highwood Congregation of Jehovah's Witnesses v. Wall.  Links to the briefs of the parties and a number of intervenors are also available online.  ReligiousLiberty.tv reports on the case.  In the case, the Alberta Court of Appeals in a 2-1 decision held that Canadian civil courts have jurisdiction to review a formal decision by a Jehovah's Witness congregation to disfellowship one of its members. (See prior posting.)  [Thanks to Michael Peabody for the lead.]