Religion Clause

Monday, October 08, 2018

Senate Hearing On International Religious Freedom

On Oct. 2, the U.S. Senate Judiciary committee held a hearing on Threats to Religious Liberty Around the World. Transcripts of the witnesses' testimony and a video of the entire hearing are available on the committee's website.

Pastor Convicted of Sex Assault During Exorcism

The Minneapolis Star Tribune reports on last week's criminal sexual conduct conviction by a Minnesota state trial court jury of Morris Freeman, pastor of Grace Mountaineer Tabernacle Church. He was charged with sexually assaulting an unconscious woman while claiming to be exorcising a demon from her body. Sentencing is set for Nov. 9.

Recent Articles of Interest

From SSRN:

Nomi Maya Stolzenberg, From Eternity to Here: Divine Accommodation and the Lost Language of Law, (USC Law Legal Studies Paper No. 18-2 (2018)).
Patrick McKinley Brennan, Forgiveness No Matter What: Justice and Love Among Equals, (September 2018).
Ioana Cismas, The Position of the Organization of Islamic Cooperation on Abortion: Not Too Bad, Ugly, or Just Confusing?, (Marie Juul Petersen and Turan Kayaoglu (eds), The Organization of Islamic Cooperation and Human Rights: The Good, the Bad, and the Ugly (University of Pennsylvania Press, 2018 Forthcoming)).
Dana Phillips, Ishaq v Canada: 'Social Science Facts' in Feminist Interventions, (Windsor Yearbook of Access to Justice, Vol. 35, 2018).
Joel Harrison, The Problem and the Promise of Religious Liberty, (Forthcoming, Paul Babie, Neville Rochow, and Brett Scharffs (eds), Freedom of Religion or Belief: Creating the Constitutional Space for Other Fundamental Freedoms (Edward Elgar)).
Aliza Cover, The Pope and the Capital Juror, (Yale Law Journal Forum (Forthcoming)).
Kyriaki Topidi, The Unfinished Education: Power, Religion and Education Struggles in Multicultural Israel, (Normative Pluralism and Human Rights: Social Normativities in Conflict, ed. by Kyriaki Topidi, Routledge, 2018).
Muhammad Ahmad, Revisiting the Discourse on Islam and Human Rights, (Kardan Journal of Social Sciences and Humanities, 1:1 (2018), 93-99).

From SmartCILP:

Albert C. Lin, Pope Francis' Encyclical on the Environment as Private Environmental Governance. 9 George Washington Journal of Energy & Environmental Law 33-44 (2018).
Alex Deagon, Liberal Secularism and Religious Freedom in the Public Space: Reforming Political Discourse, 41 Harvard Journal of Law & Public Policy 901-934 (2018).
Symposium, 46 Capital University Law Review, No.. 3, Summer, 2018.
Responses to Early Drafts of Religious Freedom in an Egalitarian Age. Contributions by Nelson Tebbe, Alan Brownstein, Patricia Marino, Andrew Koppelman. 31 Journal of Civil Rights & Economic Development 1-130 (2018).
Donald L. Beschle, No More Tiers? Proportionality as an Alternative to Multiple Levels of Scrutiny in Individual Rights Cases, 38 Pace Law Review 384-436 (2018).

Sunday, October 07, 2018

Recent Prisoner Free Exercise Cases

In Cary v. Unknown Phol, 2018 U.S. Dist. LEXIS 161038 (WD MI, Sept. 20, 2018), a Michigan federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 161103, July 2, 2018) and dismissed a Native American inmate's complaint that he was deprived of his medicine bag while he was in administrative segregation.

In Williams v. Delaware County Board of Prison Inspectors, 2018 U.S. Dist. LEXIS 161342 (ED PA, Sept. 20, 2018), a Pennsylvania federal district court allowed a Muslim inmate to move ahead with his complaint regarding access to religious services, inability to wear his kufi outside his cell, and inability to speak with an Imam.

In California Department of State Hospitals v. A.H., 2018 Cal. App. LEXIS 838 (CA App., Sept. 21, 2018), a California appellate court rejected a religious defense to an order for involuntary administration of antipsychotic medication.

In Keystone v. Ponton, 2018 U.S. Dist. LEXIS 161505 (WD VA, Sept. 21, 2018), a Virginia federal district court dismissed a claim by a Mennonite inmate that he did not receive a diet compatible with his religious beliefs.

In Stewart v. Jackson, 2018 U.S. Dist. LEXIS 162473 (ND IN, Sept. 21, 2018), an Indiana federal magistrate judge allowed an inmate to file an amended complaint alleging religious discrimination when the chaplain refused to take him off the halal diet after he informed the chaplain that he had diabetes and could not continue Ramadan.

In Firewalker-Fields v. Lee, 2018 U.S. Dist. LEXIS 162565 (WD VA, Sept. 24, 2018), a Virginia federal district court allowed a Sunni Muslim inmate to move ahead with his complaint that Muslim inmates in segregation are not allowed to congregate for prayer, even by television programming, on Fridays and can only observe televised nondenominational Christian programs on Sundays.

In Gonzalez v. Rivera, 2018 U.S. Dist. LEXIS 162371 (ED AR, Sept. 21, 2018), an Arkansas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 163054, Aug. 17, 2018) and dismissed an inmate's complaint that he was not permitted to attend a Catholic Easter meal and was not given meal provisions for a Good Friday fast.

Friday, October 05, 2018

Dean's Contract Claim Not Barred By Ministerial Exception

In Sumner v. Simpson University, (CA App., Sept. 25, 2018), a California appellate court summarized its holding in a case brought by the former dean of Tozer Seminary who was terminated for insubordination:

[T]he trial court correctly concluded that Simpson University is a religious organization and that Sumner is a minister for purposes of the ministerial exception, but that her contract cause of action is not foreclosed by the ministerial exception. Defendants have failed to show that resolution of Sumner’s contract claim would excessively entangle the court in religious matters. However, her tort causes of action are part and parcel of the actions involved in her termination, and are therefore barred by the ministerial exception.

Suit Against Vatican Seeks Release of Names of Sex Offenders

A lawsuit was filed this week in a California federal district court seeking an injunction to require the Vatican to release to the public and law enforcement authorities the names of perpetrators involved in more than 3,400 credible cases worldwide of sexual misconduct with children, as well as the names of those previously convicted. The complaint (full text) in Vega v. Holy See, (CD CA, filed 10/3/2018), charges that the Vatican has created a public nuisance, saying in part:

Defendant Holy See has created and exposed the public to these unsafe conditions continuously and on an ongoing basis before and since the time that Plaintiff was sexually abused and has continued to expose the public to that unabated threat until the present day.

The complaint also charges private nuisance, violation of California's Business and Professions Code, as well as violation of customary international law of human rights. Washington Post reports on the lawsuit.

5th Circuit: Nation of Gods and Earths Prevails On Prison Treatment

In Tucker v. Collier, (5th Cir., Oct. 3, 2018), the U.S. 5th Circuit Court of Appeals rejected under RLUIPA the Texas Prison System's treatment of adherents of the Nation of Gods and Earths. Limits were placed on the ability of these adherents to congregate based on the state's categorization of the group as a racially supremacist organization. The inmate bringing the suit disputed that characterization. The court held that the district court had not satisfied RLUIPA's requirement of an an individualized inquiry into the state's compelling interest and least restrictive means. The court said in part:

The justification for the government’s interest rests on the thin ice of two assumptions with little support in the record: (1) that Tucker and his fellow would-be congregants hold supremacist beliefs; and (2) that allowing this supremacist group to privately congregate threatens prison security. The record shows little evidence that Tucker himself, any other Nation adherent in the Coffield Unit, or even any other inmate in Texas, holds supremacist beliefs. In fact, much of the evidence points to the contrary, showing that Tucker and his fellow Nation adherents advocate racial inclusion and nonviolence....

The government rests its conclusion that Tucker and his friends hold supremacist views on haphazard research about Nation beliefs generally....

Beyond its failure to pass muster under RLUIPA’s individualized analysis, the state’s asserted interest fails for another reason: the policy is underinclusive....

The state knows of the purported link between Odinism and white supremacy in its prisons, and its prison officials admit this point openly. Still, those groups are allowed to meet. Because the state fails to offer any explanation for this differential treatment, it fails to present sufficient evidence for summary judgment that its interest is compelling....

The state also failed to show that a categorical ban on Nation assembly is the least restrictive means of advancing its interest.

Ban Against Reproductive Choice Discrimination Enjoined As To Defendants With Religious Objections

In Our Lady's Inn v. City of St. Louis, (ED MO, Sept. 30, 2018), a Missouri federal district court enjoined enforcement against plaintiffs of a St. Louis ordinance enacted last year that prohibits discrimination in housing and employment because of a person's reproductive health decisions or pregnancy. Plaintiffs were a non-profit agency that provides housing to pregnant, low-income women who seek an alternative to abortion; a group of Catholic elementary schools; and a closely held company whose principal owner adheres to Catholic teachings on birth control.

Construing exemptive language of the ordinance narrowly, the court concluded that the ordinance would require businesses to provide health insurance for reproductive services, and that the ordinance would thus be invalid under Missouri's RFRA. The court went on to invalidate the employment and housing discrimination provisions, finding that they violate the expressive association rights of the women's shelter and the Catholic schools. The Thomas More Society issued a press release announcing the decision.

Thursday, October 04, 2018

Today Is "Bring Your Bible To School" Day

Today is Bring Your Bible to School Day, an event sponsored by Focus on the Family and Alliance Defending Freedom, designed to encourage Christian students to spread their beliefs in public schools within the church-state guidelines created by the courts. Sponsors furnish "conversation cards" and posters for participating students to use. A legal memo describes student right to participate in the program. Baptist Press reports on the day. [Thanks to Scott Mange for the lead.]

ESL Teacher At Christian College Loses Suit Because of Ministerial Exception Doctrine

In Yin v. Columbia International University, (D SC, Sept. 30, 2018), a South Carolina federal district court held that the ministerial exception applies to a teacher of English as a second language at a university that trains students for the Christian ministry. Plaintiff's contract was terminated when the university encountered financial difficulties. The court thus dismissed plaintiff's suit alleging discrimination and retaliation against her on the basis of race, sex, and national origin, as well as violation of the Equal Pay Act and defamation.

ERISA Church Plan Exemption Held Constitutional

In Smith v. OSF Healthcare System, (SD IL, Sept. 28, 2018), an Illinois federal district court held that the retirement plan for employees of a healthcare system created by the order of St. Francis qualifies as an exempt "church plan" under ERISA. The court went on to conclude that ERISA's church plan exemption does not violate the Establishment Clause, saying in part:

Rather than entangling the government in the affairs of religious organizations, the church plan exemption avoids the entanglement. In other words, by exempting eligible plans from ERISA requirements, religious organizations and their associated entities are relieved from government mandates about how they conduct their affairs, structure their finances and pursue their missions.

Buddhist Center Can Proceed On Some Challenges To Zoning Denial

Thai Meditation Association of Alabama, Inc. v. City of Mobile, Alabama, (SD AL, Sept. 28, 2018), is a challenge to the city's denial of zoning applications to construct a Buddhist meditation center in a residential district. The court denied summary judgement to either side on plaintiff's RLUIPA nondiscrimination and Equal Protection claims. The court said in part:

Defendant’s primary assertion is their Planning Approval decision was based on the poor compatibility of Plaintiffs’ proposed meditation complex within a single family neighborhood, not bias towards Plaintiffs’ religion or practice of meditation.... While this argument supports the level of discretion Defendant claims to possess, Defendant’s evaluation of Plaintiffs’ Applications is riddled with inclinations of discrimination.

The court granted summary judgment to defendant on several of plaintiff's other challenges, including its RLUIPA substantial burden and RLUIPA equal terms claims and its 1st Amendment free exercise claim.

Ministerial Exception In Hostile Work Environment Cases

In Demkovich v. St. Andrew the Apostle Parish, Calumet City, (ND IL, Sept. 30, 2018), an Illinois federal district court set out an extensive analysis of when the ministerial exception doctrine bars claims for a hostile work environment, as opposed to claims involving firing or refusal to hire, under Title VII and the ADA. In the case, a parish music director claimed damages because of abusive and harassing behavior growing out of his engagement and marriage to a same-sex partner. The court said in part:

[W]hen a minister brings a claim that does not challenge a tangible employment action, then whether the First Amendment bars the claim depends on a case-by-case analysis on the nature of the claim, the extent of the intrusion on religious doctrine, and the extent of the entanglement with church governance required by the particular litigation. If the nature of the claim would require that a court take stance on a disputed religious doctrine, then that weighs in favor of First Amendment protection for the church....

If, on the other hand, no religious justification is offered at all (for a nontangible employment action), then there would be little or no risk of violating the Free Exercise Clause....

... [L]itigation over Reverend Dada’s alleged harassment based on Demkovich’s sex, sexual orientation, and marital status would excessively entangle the government in religion. To start, the Archdiocese offers a religious justification for the alleged derogatory remarks and other harassment....

... [H]arassing statements and conduct are motivated by an official Church position (or at least the Archdiocese would defend the case on those grounds). Of course, regulating how the official opposition is expressed is not as directly intrusive as outright punishing the Church for holding that position (which a federal court cannot do). But it comes close, and must weigh in favor of barring the claim under the Religion Clauses.

Wednesday, October 03, 2018

"So Help Me God" In Citizenship Oath Upheld

In Perrier-Bilbo v. United States, (D MA, Sept. 28, 2018), a Massachusetts federal district court rejected a challenge to the inclusion of the phrase "so help me God" at the end of the oath of allegiance taken by those becoming citizens of the United States. Rejecting an Establishment Clause claim, the court said in part:

Like the ceremonial prayer in Town of Greece, the inclusion of "so help me God" in the oath of citizenship "is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs." ... The regulation providing for the phrase's inclusion in the naturalization oath does not violate the Establishment Clause.

The court also rejected free exercise, RFRA, equal protection and due process challenges. According to the court:

United States Citizenship and Immigration Services ("USCIS") offered her a private induction which would omit the words she finds offensive. Not surprisingly, she wishes to participate in the public ceremony with other new citizens and their families and friends. USCIS welcomed her at such a ceremony, assuring her she need not herself say those four words and her oath of allegiance and United States citizenship would nonetheless be fully valid.

Sunday, September 30, 2018

India's Supreme Court Invalidates Ban On Women In Temple

In Indian Young Lawyers Association v. State of Kerala, (India Sup. Ct., Sept. 28, 2018), the Supreme Court of India by a vote of 4-1 struck down a rule of the Sabarimala Temple that prevents women between the age of 10 and 50 years from entering. Four separate opinions spanning 411 pages were filed. Chief Justice Misra, who began his plurality opinion by quoting Susan B. Anthony, said in part:

The exclusionary practice being followed at the Sabrimala temple by virtue of Rule 3(b) of the 1965 Rules violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. This denial denudes them of their right to worship. The right to practise religion under Article 25(1) is equally available to both men and women of all age groups professing the same religion.

Economic Times reports on the decision.

Arizona's Anti-BDS Law Enjoined

In Jordahl v. Brnovich, (D AZ, Sept. 27. 2018), an Arizona federal district court granted a preliminary injunction barring enforcement of Arizona's statute requiring those contracting with the state to certify that they are not engaged in a boycott of Israel. Plaintiff Mikkel Jordahl's law firm contracts with the county jail district to provide legal advice to inmates. Jordahl boycotts consumer goods and services from businesses that support "Israel's occupation of Palestinian territories." The court concluded that "Plaintiffs would at least be able to meet their burden of showing that the Certification Requirement is an unconstitutional condition on government contractors." The court said in part:

The Act thus encompasses and contemplates elements of expressive political conduct protected under the Constitution. As such, the Court finds it highly likely that Plaintiffs will be able to establish that “boycott,” as defined in the Arizona legislature, burdens expressive political activity protected under the First Amendment. The question then becomes whether the State has an adequate interest in restricting companies’ rights to engage in boycotts of Israel by conditioning their government contracts on a promise to refrain from such activity....

Here, the State has proffered two interests to justify the Certification Requirement: (1) an interest in regulating the State’s “commercial activity to align commerce in the State with the State’s policy objectives and values” and (2) an interest in preventing discrimination on the basis of national origin....

The legislative history of the Act calls these stated interests into doubt. The Act’s history instead suggests that the goal of the Act is to penalize the efforts of those engaged in political boycotts of Israel and those doing business in Israeli-occupied territories because such boycotts are not aligned with the State’s values.... If so, such an interest is constitutionally impermissible.

Payson Roundup reports on the decision.

Kentucky Supreme Court Allows Limited Discovery In Suit Against Church

In Presbyterian Church (U.S..) v. Edwards, (KY Sup. Ct., Sept. 27, 2018), the Kentucky Supreme Court in a 4-3 decision affirmed a Court of Appeals decision limiting discovery in a defamation suit against the Presbyterian Church to that necessary to determine if the church is entitled to ecclesiastical immunity. The issue arose out of a suit by Rev. Eric Hoey who claims that the church defamed him by releasing to Presbyterian news agencies a statement that he had been terminated for committing ethical violations. A dissent written by Justice Venters argued:

To establish his claim of defamation, Hoey must prove that the Church officials were lying when they said that his conduct violated the Church’s ethical rules for its ministers....

It is immediately apparent from the face of Hoey’s Complaint that his claim can be sustained only by second-guessing the decision of the Church’s governing body that Hoey violated the Church’s ethical policies. The only way that Hoey can show that Church officials falsely stated that he violated the Ethical Policy contained in the Book of Order is to prove that he did not violate that policy.

I respectfully submit that only the Church can make that determination and the Government, through its courts, legislature, or executive agencies, cannot supersede that decision.

Friday, September 28, 2018

$35 Million Verdict Against Jehovah's Witness Organization In Sex Abuse Case

NBC News reported yesterday that a Montana federal court jury has awarded $35 million to a woman who contended that the national organization of the Jehovah's Witness church ordered Montana clergy not to report her sexual abuse as a child by a Jehovah's Witness congregation member. According to NBC:

A judge must review the penalty, and the Jehovah's Witnesses' national organization — Watchtower Bible and Tract Society of New York — plans to appeal.

Thursday, September 27, 2018

Oral Arguments In Prayer At Football Games

Yesterday the U.S. 11th Circuit Court of Appeals heard oral arguments (recording of full oral arguments) in Cambridge Christian School v. Florida High School Atletic Association, Inc. In the case, a Florida federal district court dismissed a suit brought by a Christian high school complaining that it was denied permission to use the stadium loudspeaker system to deliver a prayer at the Championship Game in which its football team was playing.(see prior posting.)