USCIRF Issues 2018 Annual Report

On Tuesday, the U.S. Commission on International Religious Freedom issued its 228-page 2018 Annual Report (full text). A press release from USCIRF summarizes its key points:

A key component of the report is USCIRF’s recommendations of countries for designation as “countries of particular concern,” or CPCs, under the International Religious Freedom Act (IRFA). CPCs are governments that engage in or tolerate systematic, ongoing, egregious violations of religious freedom.       

In its 2018 report, USCIRF recommends 16 countries for CPC designation: 10 that the State Department so designated in December 2017—Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, Tajikistan, Turkmenistan, and Uzbekistan—and six others—Central African Republic, Nigeria, Pakistan, Russia, Syria, and Vietnam.

The report also includes a second category, USCIRF’s Tier 2, for countries where the violations meet one or two, but not all three, of the elements of the systematic, ongoing, egregious test. In its 2018 report, USCIRF places 12 countries on its Tier 2: Afghanistan, Azerbaijan, Bahrain, Cuba, Egypt, India, Indonesia, Iraq, Kazakhstan, Laos, Malaysia, and Turkey.

In addition, the report contains USCIRF’s recommendations of “entities of particular concern,” or EPCs, a designation created by the 2016 Frank R. Wolf International Religious Freedom Act for non-state actors committing systematic, ongoing, egregious violations. The act defines a non-state actor as “a non-sovereign entity that exercises significant political power and territorial control; is outside the control of a sovereign government; and often employs violence in pursuit of its objectives.” Based on their conduct and control of territory in 2017, USCIRF recommends three groups for designation as EPCs in 2018: the Islamic State of Iraq and Syria (ISIS) in Iraq and Syria; the Taliban in Afghanistan; and al-Shabaab in Somalia.

The Report also contains a series of recommendations to the Administration and to Congress.

Iranian Christians Denied Refugee Status Sue

A class action lawsuit was filed last week on behalf of 87 Christians, Mandaeans, and other persecuted religious minorities from Iran who (through family members in the United States) have applied for refugee status under the Vienna-based Lautenberg-Specter program. The refugee applicants are currently in Vienna. In February 2018 their refugee applications were denied en masse "as a matter of discretion."  The complaint (full text) in Doe v. Nielsen, (ND CA, filed 4/18/2018), contends that:

Defendants’ conduct violates the Administrative Procedure Act because the program changes that resulted in the mass denials constitute final agency actions that were unlawful, including because they were “arbitrary, capricious, an abuse of discretion, or not in accordance with law.”

The Lautenberg Amendment, originally enacted in 1989, made it easier for Jews and Christians from the former Soviet Union to gain admission to the United States as refugees.  In 2004, Congress enacted the Specter Amendment which  added Iranian religious minorities to those eligible for special protection under the Lautenberg Amendment. Since 2004, some 30,000 Iranian religious minorities have been resettled in the United States. Christian Post reports on the lawsuit.

Rabbi Freundel's Voyeurism Sentence Reduced For Good Behavior

According to the District of Columbia Department of Corrections, the prison sentence of Rabbi Barry Freundel has been shortened by more than a year.  Under a plea agreement, in 2015 Freundel was sentenced to six and one-half years in prison on 52 counts of voyeurism.  Freundel had secretly videotaped 150 women in the changing room of the mikveh (ritual bath) at Washington's Kesher Israel Synagogue. (See prior posting.)  JTA reports that the sentence reduction for good behavior was granted because Freundel participated as an instructor in an educational program for inmates.  Freundel's new release date is Aug. 21, 2020.

Judge Rules Pro-Trump Hat Is Not Part of Any Religious Belief

New York Post reports that a New York state trial court judge on Wednesday dismissed a discrimination suit that had been filed by an accountant who was told to leave a West Village bar because he was wearing a pro-Trump "Make America Great Again" cap.  At a hearing, plaintiff's lawyer, when faced with the argument that state and local anti-discrimination laws only protect religious beliefs and not political ones, attempted to turn plaintiff's case into a religious discrimination suit, saying:

The purpose of the hat is that he wore it because he was visiting the 9/11 Memorial.  He was paying spiritual tribute to the victims of 9/11. The Make American Great Again hat was part of his spiritual belief.

After hearing arguments, the judge took a short break and then ruled from the bench:

Plaintiff does not state any faith-based principle to which the hat relates.

District Court Again Dismisses Suit Over Board Positions On Sikh Dharma Entities

In Puri v. Khalsa, (D OR, April 26, 2018), an Oregon federal district court dismissed on ministerial exception and ecclesiastical abstention grounds a suit originally filed in 2010 growing out of disputes following the death of Yogi Bhajan, an important Sikh spiritual leader in the United States.  The widow and three children of Yogi Bhajan claim that they are entitled to board positions in two nonprofit Sikh Dharma entities. In a 2017 decision, the U.S. 9th Circuit Court of Appeals, reviewing  the trial court's dismissal solely on the basis of the pleadings, held that the suit should not have been dismissed on ministerial exception or ecclesiastical abstention grounds. (See prior posting.)  In yesterday's decision, however, the district court, ruling on a summary judgment motion, held that information outside the pleadings now before the court leads to the conclusion that defendants' motion for summary judgment should be granted.

In Bavaria, State Buildings Will Display A Cross

According to Evangelical Focus, in Germany this week the Minister President of the state of Bavaria has ordered every state administration building to hang a Christian cross in the building entrance.   Minister President of Bavaria, Markus Söder says that the cross is "a fundamental symbol of the Christian Western identity" and is an "expression of the spiritual and cultural character of Bavaria."  The order does not apply to municipal and regional district buildings, but they are encouraged to follow the example set by the state government. Opposition political parties in Bavaria criticized the order.

Missouri Supreme Court Hears Oral Arguments On Sexual Orientation and Gender Identity Discrimination

Yesterday, the Missouri Supreme Court heard oral arguments in two cases posing the question of whether the prohibition on "sex" discrimination in the state's civil rights laws includes discrimination on the basis of gender identity or sexual orientation. The first case, R.M.A. v. Blue Springs R-IV School District (audio of full arguments), involves discrimination claims by a middle school student who was born a female but transitioned to male, who has not been allowed by his school to use the boy's rest rooms or locker room.  Because of his female genitalia, the school required him to use a unisex bathroom.

The second case, Lampley v. Missouri Commission on Human Rights (audio of full arguments), Harold Lampley, a state department of social services employee, alleged discrimination and retaliation because he is gay and does not exhibit stereotypical attributes of male appearance and behavior. A second employee alleged discrimination and retaliation because of her association with Lampley.

The Missouri Supreme Court's Docket Summaries page includes more information on the cases and links to briefs (including amicus briefs) filed in each case case [scroll down to SC96683 and SC 96828.  AP reports on the oral arguments.

6th Circuit Hears Oral Arguments In Challenge To Deportation of Iraqi Chaldeans

Yesterday, the U.S. 6th Circuit Court of Appeals hear oral arguments (audio of full arguments) in Hamama v. Adducci. In the case, a Michigan federal district court issued a preliminary injunction preventing Iraqi nationals (many of whom are Chaldean Christians) subject to long-standing deportation orders from being removed from the United States while they attempt to convince immigration courts that their return will subject them to persecution, torture and possible death.  Subsequently the court also ordered bond hearings for those detained 6 months or longer. The appeals largely raise issues of whether federal district courts have jurisdiction to grant relief here, or whether plaintiffs should have pursued the matter through administrative immigration courts.  AP reports on the 6th Circuit oral arguments

Parents File State Court Suit Alleging Baptism of Their Son Without Their Consent

As previously reported, last October an Ohio federal district court dismissed a suit by parents of a minor child who contended that the mentor assigned by a juvenile court to their son coerced him into being baptized against the wishes of his parents. The court held that the various defendants were not state actors or had judicial immunity. Now the parents have refiled in state court, alleging causes of action that do not require a showing of state action. The complaint (full text) in Defibaugh v. Big Brothers/ Big Sisters of Northeast Ohio Board of Trustees, (OH Com. Pl., filed 4/24/2018), alleges civil assault and battery, intentional infliction of emotional distress, negligent training and supervision of employees and volunteers, and civil conspiracy.  American Atheists issued a press release announcing the filing of the lawsuit.

Transcript and Audio of Arguments in Trump v. Hawaii Now Available

The full transcript and full audio recordings of today's oral arguments before the Supreme Court in Trump v. Hawaii are now available. At issue is the legality of the third version of President Trump's ban on travel to the U.S. by nationals of several countries.  Washington Post, reporting on the arguments, said that the conservative majority on the Court appeared to agree that the President has authority to issue the ban.

Evangelicals Organizing For Mid-Term Elections

A New York Times article posted yesterday reports:

The conservative Christian coalition that helped usher President Trump into power in 2016 is planning its largest midterm election mobilization ever, with volunteers fanning out from the church pews to the streets to register voters, raise money and persuade conservatives that they cannot afford to be complacent this year.

Evangelicals cite a list of Trump's achievements as the basis for their continued support of candidates backing his agenda, despite the controversies surrounding Trump's alleged personal behavior:

He has begun the process of moving the American Embassy in Israel to Jerusalem, won the confirmation of numerous judges and a Supreme Court Justice who seem likely to advance their anti-abortion cause, moved against transgender protections throughout the government, increased the ability of churches to organize politically and personally supported the March for Life.

Supreme Court Will Hear Oral Arguments In Travel Ban Case Today

The U.S. Supreme Court will hear oral arguments this morning in Trump v. Hawaii, a challenge to the legality of the most recent version of President Trump's controversial "travel ban."  As explained by this argument preview from SCOTUSblog, as well as this New York Times preview, one of the major questions that the Court will face is whether Donald Trump's anti-Muslim statements  during his campaign for office, and his Tweets while in office, should be considered in deciding whether his later executive action violates the Establishment Clause. SCOTUS blog's case page has links to the numerous briefs filed in the case, as well as to commentary and other primary source documents.  I will post a link to the transcript of the oral argument when it becomes available later today.

3rd Circuit Allows Religious Group To Intervene In State's Challenge To Trump Contraceptive Mandate Exemptions

In Commonwealth of Pennsylvania v. President United States of America, (3rd Cir., April 24, 2018), the U.S. 3rd Circuit Court of Appeals in a 20-page opinion reversed a Pennsylvania federal district court. The 3rd Circuit allowed Little Sisters of the Poor to intervene to defend Trump Administration interim rules expanding religious and moral exemptions from the Affordable Care Act's contraceptive coverage mandate. Becket issued a press release on the decision.

Senate Confirms Religious Liberty Expert For Seat On 5th Circuit

The U.S. Senate yesterday by a vote of 50- 47, confirmed Stuart Kyle Duncan, of Louisiana, to be United States Circuit Judge for the Fifth Circuit. (Senate vote details).  Duncan has an extensive record of research and litigation on church-state and religious liberty issues. (See prior posting.)  In a press release from Becket, where Duncan served as general counsel for two years, the advocacy group's current president said in part:

At Becket, Kyle was a steadfast defender of religious liberty for people of all faiths and was known for his intelligence and evenhandedness. His generosity and respect for others has made him a great advocate, and will make him a fair and respected judge.

UPDATE: In a statement issued April 24, the Human Rights Campaign took a different view of Duncan's record, calling him an "extremist, anti-LGBTQ nominee."

Supreme Court: Foreign Corporations Cannot Be ATS Defendants

The U.S. Supreme Court today on Jesner v. Arab Bank, (Sup. Ct., April 24, 2018), by a vote of 5-4, held that foreign corporations may not be defendants in suits under the Alien Tort Statute.  In the suit, plaintiffs claimed that terrorist attacks abroad had been facilitated by defendant, Arab Bank.  The portion of Justice Kennedy's opinion that commanded the vote of 5 justices said in part:

The ATS was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations in circumstances where the absence of such a remedy might provoke foreign nations to hold the United States accountable.... But here, and in similar cases, the opposite is occurring. Petitioners are foreign nationals seeking hundreds of millions of dollars in damages from a major Jordanian financial institution for injuries suffered in attacks by foreign terrorists in the Middle East. The only alleged connections to the United States are the CHIPS transactions in Arab Bank’s New York branch and a brief allegation regarding a charity in Texas.

Justices Thomas, Alito and Gorsuch each filed a concurring opinion.  Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg, Breyer and Kagan.  Law.com reports on the decision.

State Department Releases 2017 Country Reports On Human Rights

Last Friday, the U.S. State Department released its 2017 Country Reports on Human Rights Practices. The release was accompanied by remarks from Acting Secretary of State John Sullivan and a press briefing by Michael Kozak, Ambassador, Bureau of Democracy, Human Rights and Labor.  Secretary Sullivan highlighted a special concerns, including the ethnic cleansing of Rohingya in Burma.  In the the report on each individual country, the issue of Religious Freedom is covered by a cross reference to the Department of State’s International Religious Freedom Report for 2016, released in August 2017 (see prior posting).

Falun Gong Is A Religion Under FACE Act

In Zhang v. Chinese Anti-Cult World Alliance, (ED NY, April 23, 2018), a New York federal district court in an 84-page opinion ruled that a group of Falun Gong adherents may proceed on certain of its causes of action against individuals who have engaged in verbal and physical confrontations with plaintiffs.  The court explains:

Adherents of Falun Gong live in the United States. Some are citizens of this country. It is contended by them as plaintiffs that the Chinese Government has conspired with individuals to harm followers and suppress Falun Gong in the United States by organizing and encouraging the Chinese Anti-Cult World Alliance (“CACWA”) and individuals to inflict injuries on those who follow Falun Gong.

Defendants oppose Falun Gong in Flushing, Queens, New York, and elsewhere. They deny that Falun Gong is a religion. Following the position of the Chinese Government, their opposition is based upon characterizing Falun Gong as a “cult” indoctrinating its followers with beliefs that are dangerous, unscientific, and offensive.

One of plaintiffs' claims was brought under the Freedom of Access to Clinic Entrances Act of 1994 which allows a civil action by any person who has suffered physical interference with the exercise of the right of religious freedom at a place of religious worship. The court held that for purposes of this statute, Falun Gong is a "religion":

Expert testimony showed that Falun Gong is at its center concerned with ultimate questions of life and the universe. Dr. Waldron explained his view that Falun Gong is derived from Buddhism and other ancient Chinese religions. There is no genuine dispute for purposes of this case: Falun Gong “occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.” Int’l Soc. For Krishna Consciousness, 650 F.2d at 440 (2d Cir. 1981). Falun Gong is a religion for purposes of the instant litigation. The jury will be so instructed.

Plaintiffs were also allowed to proceed with claims of assault and battery, and bias related intimidation under the New York Civil Rights Act.  Defendants were allowed to move ahead on civil rights and assault and battery counter-claims growing out of the same incidents. New York Law Journal reports on the decision.

Report Finds Increase In Anti-Muslim Bias Incidents

Yesterday CAIR released its 2018 Civil Rights Report which it titles Targeted (full text). Here is part of the Key Findings section of the report:

Anti-Muslim bias incidents have continued to increase in 2017. Additionally, a greater percentage of these instances have been violent in nature, targeting American children, youth, and families who are Muslim or perceived to be Muslim.

CAIR recorded a 17 percent increase in anti-Muslim bias incidents nationwide in 2017 over 2016.  This was accompanied by a 15 percent increase in hate crimes targeting American Muslims, including children, youth, and families, over the same period.

Of particular alarm is the fact that federal government agencies instigated 35 percent of all anti-Muslim bias incidents recorded in 2017. This represents an almost unprecedented level of government hostility toward a religious minority within the United States, and is counter to the American value of religious freedom.

Following the executive order barring the entry of individuals from several Muslim-majority countries into the U.S., the first version of which was signed on January 27, 2017, CAIR received a deluge of cases. Over the course of the year, CAIR recorded 464 incidents pertaining to the unconstitutional Muslim Ban. That is a staggering 18 percent of the total number of anti-Muslim bias incidents documented in 2017.

European Court Interprets Provision Allowing Churches To Hire On Basis of Religion

In Egenberger v. Evangelisches Werk für Diakonie und Entwicklung eV, (CJEU, April 17, 2018), the Court of Justice of the European Union in a preliminary ruling by its Grand Chamber interpreted Council Directive 2000/78/EC which bars employment discrimination on the basis of religion or belief.  The Directive creates an exception for existing national practices as to "occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief."  It provides that in such organizations:

a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos.

In the request for an interpretation from the German Federal Labor Court, the European Court held that effective judicial review must be available as to whether an occupational requirement that one hold particular religious beliefs is genuine, legitimate and justified.  It went on to define how national courts should interpret the exception:

 Thus the lawfulness ... of a difference of treatment on grounds of religion or belief depends on the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned. Such a link may follow either from the nature of the activity, for example where it involves taking part in the determination of the ethos of the church or organisation in question or contributing to its mission of proclamation, or else from the circumstances in which the activity is to be carried out, such as the need to ensure a credible presentation of the church or organisation to the outside world....

... [T]he church or organisation imposing the requirement is obliged to show, in the light of the factual circumstances of the case, that the supposed risk of causing harm to its ethos or to its right of autonomy is probable and substantial, so that imposing such a requirement is indeed necessary.

.... As the principle of proportionality is one of the general principles of EU law ..., the national courts must ascertain whether the requirement in question is appropriate and does not go beyond what is necessary for attaining the objective pursued.

Law & Religion UK has more on the decision.

Recent Articles of Interest

From SSRN:

• Antony Kolenc, Religion Lessons from Europe: Intolerant Secularism, Pluralistic Neutrality, and the U.S. Supreme Court, (Pace Law Review, Vol. 30, No. 1, 2017).
• Matthew O. Jackson & Yiqing Xing, The Interaction of Communities, Religion, Governments, and Corruption in the Enforcement of Contracts and Social Norms, (April 1, 2018).
• Nathan S. Chapman, A Reformed Liberalism: Michael McConnell's Contributions to Christian Jurisprudence, (Mark David Hall and Daniel Dresibach, Great Christian Jurists in American History (Cambridge University Press, Forthcoming).
• Asim Jusic, Damned If It Doesn't and Damned If It Does: The European Court's Margin of Appreciation and the Mobilizations Around Religious Symbols, (University of Pennsylvania Journal of International Law, Vol. 39, No. 3, 2018).
• Patrick Murphree, Schools in the Middle: Resolving Schools' Conflicting Duties to Transgender Students and Their Parents, 86 UMKC L. Rev. 405 (2018).
• Michele Goodwin, If Embryos and Fetuses Have Rights, (Law & Ethics of Human Rights, Vol. 11, No, 2, 2017, pp.189-224).
• Claudio Michelon & Amalia Amaya, Introduction to ‘Virtue and Law’ Symposium, (Edinburgh School of Law Research Paper No. 2018/13).
• Robert H. Sitkoff, Fiduciary Principles in Trust Law, (Oxford Handbook of Fiduciary Law, Evan Criddle, Paul Miller, and Robert H. Sitkoff eds., 2018 Forthcoming).

From SSRN (Islamic Law):

• Mohammad Sardoueinasab, Iranian Law, New Era and Transnational Law, (April 20, 2018).
• Ghassan Abdul-Jabbar, The 'Six Books' of Hadith, (November 1, 2017).
• Abdul-Jabbar, Ghassan, The Classical Tradition, (November 1, 2017).

From SmartCILP:

• Religious Rights in a Pluralistic World. Articles by Sahar F. Aziz, Md. Jahid Hossain Bhuiyan, Elena Ervas, Jan Figel?, Tassaduq Hussain Jillani, Faizan Mustafa, Jagteshwar Singh Sohi, Brett G. Scharffs. 2017 BYU Law Review 779-989.
• Gideon Sapir & Mark Goldfeder, Law, Religion, and Immigration: Building Bridges With Express Lanes, 32 Emory International Law Review 201-254 (2018).
• Douglas Laycock. The Wedding-Vendor Cases, 41 Harvard Journal of Law & Public Policy 49-66 (2018).
• William P. Marshall, Extricating the Religious Exemption Debate from the Culture Wars, 41 Harvard Journal of Law & Public Policy 67-77 (2018).
• Marci A. Hamilton, The Cognitive Dissonance of Religious Liberty Discourse: Statutory Rights Masquerading as Constitutional Mandates, 41 Harvard Journal of Law & Public Policy 79-94 (2018).
• Khaled A. Beydoun, Bisecting American Islam? Divide, Conquer, and Counter-Radicalization, 69 Hastings L.J. 429-497 (2018).
• Gijs van Dijck, Victim-Orientated Tort Law in Action: An Empirical Examination of Catholic Church Sexual Abuse Cases, 15 Journal of Empirical Legal Studies 126-164 (2018).