Ballot Issues To Watch In Tomorrow's Elections

Several ballot measures that may be of interest to Religion Clause readers will be voted on around the country tomorrow:

• Alabama Ten Commandments Amendment, Amendment 1
• Alabama State Abortion Policy Amendment, Amendment 2
• Oregon Ban Public Funds for Abortions Initiative
• West Virginia Amendment 1, the No Right to Abortion in Constitution Measure

Recent Articles of Interest

From SSRN:

• Elizabeth A. Brown & Inara Scott, Belief v. Belief: Resolving LGBTQ Rights Conflicts in the Religious Workplace, (American Business Law Journal, Forthcoming).
• John Melcon, Thou Art Fired: A Conduct View of Title VII's Religious Employer Exemption, (Rutgers Journal of Law and Religion, Forthcoming).
• Louis W. Hensler, Moses’ Restatement of Torts: Modern Principles of Justice and Efficiency in the Mishpatim, (October 10, 2018).
• Sohail Wahedi, Abstraction from the Religious Dimension, (Buffalo Human Rights Law Review, Vol. 24, No. 1, 2017-2018).
• Alisha Patton, Harris and Whole Woman’s Health Collide: No Funding Provisions Unduly Burden Reproductive Freedom, (Hastings Law Journal, Forthcoming).
• Sam Fox Krauss, Moral Market Design, (Kansas Journal of Law & Pubic Policy, Vol. 28, No. 2, 2019).
• Ji Ma, Funding Nonprofits in a Networked Society: Two Modes of Crowding Mechanism of Government Support, (July 17, 2018).
• Timothy M. Todd, Exogeneity vs. Endogeneity in Section 170’s Quid Pro Quo Test, (State Tax Notes, Vol. 90, pp. 37-44, Oct. 1, 2018; Tax Notes, Vol. 161, pp. 65-72, Oct. 1, 2018).

From SSRN (European and Australian Law):

• Eva Brems , Saïla Ouald Chaib & Katrijn Vanhees, 'Burkini' Bans in Belgian Municipal Swimming Pools: Banning As a Default Option, (Netherlands Quarterly of Human Rights, December 2018).
• Brett Crumley, & John Picton, Still Standing? Cy-près and Charitable Service Users in the First-tier Tribunal (Charity), (Conveyancer and Property Lawyer, (2018) 82 Conv 262 – 279).
• Ian Ramsay & Corinne Tan, Social Impact Bonds in Australia, (Journal of Banking and Finance Law and Practice, Vol. 29, No. 3, 2018, pp. 248-257).

From SSRN (Islamic Law):

• Fajri Muhammadin, Dian Agung Wicaksono, Almonika Sari & Ola Ayutama,  Lashing in Qanun Aceh and the Convention Against Torture: A Critical Appraisal, (Jurnal Media Syariah, Vol. 20, No. 1 (2018)).
• Vina Berliana Kimberly, Novita Dwi Lestari &  and Fajri Muhammadin, Incorporating Qawaidh Fiqhiyyah to the 'Principles of Law' Chapter in the Introduction to Jurisprudence Course in Indonesia's Legal Education, (Proceeding of the International Conference on Research in Islamic Education (ICRIE), Universiti Teknologi Malaysia, 2018).
• Nurizal Ismail, Fajri Muhammadin & Hanindito Danusatya, The Urgency to Incorporate Maqasid Shari’ah as an Eludication of ‘Benefit’ as a Purpose of Law in Indonesia’s Legal Education, (Proceeding of the 1st International Conference on Law, Technology, and Society (ICOLESS) 2018, Batu, Indonesia, October 24-25, 2018).

From SmartCILP:

• Logan A. Yelderman, Monica K. Miller & Alicia DeVault, Led By the Spirit: Integrating Social Science and Law to Better Understand the Impact of Jurors' Religious Beliefs, [Abstract], 9 Faulkner Law Review 227-249 (2018).
• John H. Calvert, The Absence of Religious Neutrality in K-12 Public Science Education, 12 Liberty University Law Review 571-662 (2018).
• Anton Sorkin, Make Law, Not War: Solving the Faith/Equality Crisis, 12 Liberty University Law Review 663-734 (2018).
• Shael Herman, The Acre Bible: Recasting Hebrew Scripture for Crusaders and the Christian Flock, 33 Tulane European & Civil Law Forum 75-100 (2018).

Recent Prisoner Free Exercise Cases

In Forehand v. Sapp, 2018 U.S. Dist. LEXIS 183729 (MD GA, Oct.26, 2018), a Georgia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 183990, Sept. 21, 2018) and permitted an inmate to move ahead with his complaint that he was required to choose between observing the Ramadan fast or the Nation of Islam December fast; he was not permitted to observe both.

In Butler v. California Department of Corrections, 2018 U.S. Dist. LEXIS 184220 (ND CA, Oct. 26, 2018), a California federal district court dismissed an inmate's complaint that his request for Nation of Islam videos be broadcast on the CTF system-wide television channel was denied and that there is not an NOI chaplain.

In Brown v. Semple, 2018 U.S. Dist. LEXIS 185456 (D CT, Oct. 30, 2018), a Connecticut federal district court allowed an inmate to move ahead with his free exercise complaint alleging that he was not allowed to have a Wicca bible that was sent to him. His Establishment Clause and equal protection complaints were dismissed without prejudice.

In Lane v. Avery, 2018 U.S. Dist. LEXIS 184649 (ED AR, Oct. 29, 2018), an Arkansas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 185647, Oct. 11, 2018) and dismissed an inmate's complaint that he was deprived of his Bible while on "behavior control" and was prevented him from "fellowshipping" with other believers during holy days because he was kept in ad seg.

In Elias v. Kinross, 2018 U.S. Dist. LEXIS 185869 (ED CA, Oct. 29, 2018), a California federal magistrate judge allowed a Wiccan inmate to move ahead with his complaint that ink he was using for a religious ceremony was confiscated.

In Stewart v. Sheahan, 2018 U.S. Dist. LEXIS 186253 (WD NY, Oct. 29, 2018), a New York federal district court allowed a Muslim inmate to move ahead with his complaint that he was no provided Ramadan meals for four consecutive days.

In Simmons v. Gilmore, 2018 U.S. Dist. LEXIS 187293 (WD PA, Oct. 31, 2018), a Pennsylvania federal magistrate judge recommended dismissing without prejudice an inmate's complaint that his receiving only 3 haircuts in 10 months violated his Spiritual Scientist religious beliefs as to personal hygiene.

Supreme Court Agrees To Review Bladensburg Cross Case

The U.S. Supreme Court yesterday granted certiorari in two appeals stemming from the same 4th Circuit opinion. The petitions for review were granted in American Legion v. American Humanist Association (Docket No. 17-1717) and Maryland-National Capital Park and Planning Commission v. American Humanist Association (Docket No.  18-18). (Cert. granted, 11/2/2018). (Order List). In the case, the U.S. 4th Circuit Court of Appeal, in a 2-1 decision, held that the 40-foot high Bladensburg Cross that has stood for over 90 years as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting.) The Circuit Court, by a vote of 8-6, then denied en banc review. (See prior posting). Here is the SCOTUS blog case page for the cases, with links to filings in the case.  WTOP News reports on the grant of review.

NYT Profiles Political Views of Young Evangelicals

The New York Times yesterday carried a long feature article on the political views of young Christian evangelicals. The article features interviews with six young evangelicals of different political affiliations.

South Korea's Supreme Court Recognizes Conscientious Objection To Military Draft

According to AFP, South Korea's Supreme Court yesterday-- by a vote of 9-4-- ruled that religious and moral beliefs are valid reasons to refuse the country's military conscription. The ruling, which overruled prior precedent, came in the case of a Jehovah’s Witness conscientious objector who had been convicted by lower courts. Refusing the draft has typically resulted in an 18-month prison term. Some 19,000 conscientious objectors have been jailed since 1950, with 96 currently in prison.

Free Exercise Defenses Rejected In Conviction of Temple Operator For Prostitution

In State of Arizona v. Elise, (AZ App., Nov. 1, 2018), an Arizona state appellate court upheld against free exercise defenses the conviction of the operator of the Phoenix Goddess Temple. Tracy Elise was convicted of money laundering, pandering, and operating the Temple as a house of prostitution.  The court rejected defendant's 1st Amendment defense, finding that the statutes under which defendant was convicted are neutral laws of general applicability.  It rejected defenses under the Arizona Free Exercise of Religion Act, finding that defendant "did not prove the sexual acts performed at the Temple were motivated by a religious belief, rather than for pecuniary gain."

Recent Prisoner Free Exercise Cases

In Priest v. Holbrook, (9th Cir., Oct. 31, 2018), the 9th Circuit reversed the district court's dismissal of a Native American inmate's complaint that his golden eagle feathers were confiscated.

In McCracken v. Godert, 2018 U.S. Dist. LEXIS 178074 (ED MO, Oct. 17, 2018), a Missouri federal district court allowed an inmate who is a Native American Medicine Man to move ahead with his complaint that the prison's ban on tobacco failed to provide an exception for religious ceremonies.

In Ross v. Sandoval, 2018 U.S. Dist. LEXIS 179876 (D NV, Oct. 19, 2018), a Nevada federal district court granted a preliminary injunction requiring that a Buddhist inmate be placed on the common fare diet.

In Barnes v. Daviess County Detention Center, 2018 U.S. Dist. LEXIS 180713 (WD KY, Oct. 19, 2018), a Kentucky federal district court allowed a Muslim inmate to move ahead with his complaint that during Ramadan he has not been able to engage in prayers or have a clean uniform in which to pray.

In Franklin v. York, 2018 U.S. Dist. LEXIS 180832 (ND NY, Oct. 16, 2018), a New York federal magistrate judge recommended dismissing a Muslim inmate's complaint regarding a prayer rug, Ramadan meals, and receipt of mail including a prayer schedule. UPDATE: The court adopted the magistrate's recommendation at 2018 U.S. Dist. LEXIS 190161, Nov. 7, 2018.

In Archibald v. Warren County Regional Jail, 2018 U.S. Dist. LEXIS 181336 (WD KY, Oct. 23, 2018), a Kentucky federal district court allowed a Muslim inmate to move ahead with his complaint regarding Ramadan meals.

In Clinton v. Duby, 2018 U.S. Dist. LEXIS 182079 (WD MI, Oct. 24, 2018), a Michigan federal district court allowed an inmate to move ahead with claims growing out of denial of his approved religious vegan diet.

In Jones v. North Carolina Department of Public Safety, 2018 U.S. Dist. LEXIS 182150 (WD NC, Oct. 23, 2018), a North Carolina federal district court dismissed a Muslim inmate's complaint that he was told to shave his beard before he could interview for a work release job.

Pakistan's Supreme Court Reverses Blasphemy Conviction of Asia Bibi

In a widely followed case, the Pakistan Supreme Court yesterday reversed the blasphemy conviction of Asia Bibi, a Christian woman who had been sentenced to death in 2010 for allegedly uttering derogatory remarks against the Prophet Muhammad. The statements were allegedly made after Bibi got into an argument with two Muslim women while picking berries in a field.  The Muslim women refused to accept water from Bibi because she was Christian. In Bibi v. The State, (Pak. Sup. Ct., Oct 31, 2018), a 3-judge panel concluded (in a 34-page opinion) that the charges against Bibi had not been adequately proven, since the lower courts relied on contradictory testimony and the trial court relied on a confession that was given under pressure.  Justice Nisar's majority opinion alluded to the misuse of blasphemy prosecutions in Pakistan:

[N]o one could be allowed to defy the name of the Holy Prophet Muhammad (صلى الله عليه وسلم ) and be left unpunished, but there is another aspect of the matter; sometimes, to fulfill nefarious designs the law is misused by individuals leveling false allegations of blasphemy. Stately, since 1990, 62 people have been murdered as a result of blasphemy allegations, even before their trial could be conducted in accordance with law.

Judge Khosa filed a 21-page concurring opinion, in which he observed:

It is ironical that in the Arabic language the appellant’s name Asia means ‘sinful’ but in the circumstances of the present case she appears to be a person, in the words of Shakespeare’s King Leare, “more sinned against than sinning”.

The Guardian reports on the decision and reactions to it:

By the afternoon, thousands of club-wielding demonstrators had blocked highways, burned tyres and pelted police with stones in major cities including Islamabad and Karachi.

Anti-Semitism Suit Against San Francisco State Dismissed

In Mandel v. Board of Trustees of the California State University, (ND CA, Oct. 29, 2018), a California federal district court dismissed an amended complaint charging that San Francisco State University tolerated, or even encouraged, anti-Semitic conduct. The court summarized its holding:

While I understand that these plaintiffs, and some other members of the Jewish or Israeli community in or around SFSU, feel deeply that SFSU has not done enough to curtail others’ anti-Semitic behaviors and to foster a better environment for Jewish and pro-Israeli students, the acts described in the SAC do not adequately allege a violation of federal anti-discrimination laws so that liability may be imposed on SFSU, its administrators, or its faculty.

San Francisco Chronicle reports on the decision.

Bodies of Pittsburgh Shooting Victims Handled According To Religious Law

The New York Times reported yesterday on the arrangements at the scene of the Pittsburgh synagogue massacre to assure that bodies of the victims were handled in conformity with Jewish religious law:

All night long, Jewish volunteers stood solemnly in the rain outside the Tree of Life synagogue, where 11 dead bodies lay inside, sealed off with yellow crime-scene tape. The deceased were not supposed to be left alone, according to Jewish tradition, from the moment of death until burial. So when the medical examiner removed the bodies at 5 a.m. Sunday, the volunteers were there to escort them to the morgue....

Once homicide investigators give them the all clear, they intend to meticulously clean the crime scene. They consider everything left behind to be sacred remains, to be preserved and buried with the bodies....

Although autopsies are generally avoided in Jewish tradition, there was no doubt that each of the bodies would need to be examined for evidence in the criminal case. Once the bodies were with the medical examiner, Mr. Wasserman [head of the burial society] ensured that a shomer, as the guard is called in Hebrew, was in the building to keep watch over them as they went through the process.

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

Hawaii Supreme Court Approves Manua Kea Telescope

In In re Thirty Meter Telescope at the Mauna Kea Science Reserve, (HI Sup. Ct., Oct. 30, 2018), the Hawaii Supreme Court affirmed the decision of the state's Board of Land and Natural Resources allowing a 30 meter telescope to be erected near the summit of Mauna Kea.  Native Hawaiian cultural practitioners believe that Mauna Kea should be kept in its natural state as a sacred manifestation of their ancestry. Hawaii's Constitution (Art. XII, Sec. 7) protects the cultural and religious rights of the descendants of Native Hawaiians. The Court's majority opinion by Justice McKenna upheld the agency's finding that while Native Hawaiian cultural practitioners use the summit of Mauna Kea, there is no evidence that they use the Thirty Meter Telescope Observatory site area and the Access Way. The Court also rejected appellants' RLUIPA challenge, holding that RLUIPA does not apply to the government's management of its own land. New York Times reports on the decision. [Thanks to  Kuliaikanu'u Petzoldt for the lead.]

DOJ Expands Hate Crime Resources

The Department of Justice today is concluding a two-day Law Enforcement Roundtable on Improving the Identification and Reporting of Hate Crimes. (Press release). In connection with the Roundtable it announced a new Hate Crimes website "designed to provide a centralized portal for the Department’s hate crimes resources for law enforcement, media, researchers, victims, advocacy groups, and other related organizations and individuals." Deputy Attorney General Rosenstein also announced a grant to the University of New Hampshire for a national survey on hate crime incidents and victimization. He also announced the extension of an existing technical assistance program to the prosecution and prevention of hate crimes.

Cert. Filed In Touro Synagogue Ownership Dispute

Last week a petition for certiorari (full text) was filed with the U.S. Supreme Court in Congregation Jeshuat Israel v. Congregations Shearith Israel, (cert. filed 10/22/2018). In the case, the U.S. 1st Circuit Court of Appeals held that Rhode Island's historic Touro Synagogue is owned by New York's Shearith Israel congregation. The court also concluded that a pair of historic silver Torah ornaments worth some $7 million are also owned by the New York congregation. (See prior posting.) Providence Journal reports on the petition for review.

Irish Voters Approve Elimination of Blasphemy As A Crime

In a referendum held last Friday, voters in Ireland approved removal from Sec. 40.6.1 of the Irish Constitution the language that makes blasphemy a crime.  As reported by BBC News, the vote was 64.85% voting in favor of decriminalizing blasphemy, and 35.15% against.  The removal of the language from the Constitution permits the Oireachtas to amend or repeal Sec. 36 of the Defamation Act of 2009 in order to eliminate blasphemy as a crime. (Background on referendum). See prior related posting.  [Thanks to Law & Religion UK for the lead.]

Recent Articles of Interest

From SSRN:

• Effie Fokas, The Legal Status of Religious Minorities: Exploring the Impact of the European Court of Human Rights, (Social Compass, 2017, 65(1), 25-42).
• Haniff Ahamat & Nasarudin Abdul Rahman, Halal Food, Market Access and Exception to WTO Law: New Aspects Learned from Indonesia — Chicken Products, (Asian Journal of WTO & International Health Law and Policy, Vol. 13, No. 2, pp. 355-373, September 2018).
• Wayne Barnes, The Paradox of Christian-Based Political Advocacy: A Reply to Professor Calhoun, (74 Wash. & Lee L. Rev. Online 489 (2018)).
• Helen M. Alvare, Is This Any Way to Make Civil Rights Law? Judicial Extension of 'Marital Status' Nondiscrimination to Protect Cohabitants, (Georgetown Journal of Law & Public Policy, Forthcoming).
• Paulo Pinto de Albuquerque & Andrea Scoseria Katz, Is Religion a Threat to Human Rights? Or is It the Other Way Around? Defending Individual Autonomy in the ECtHR's Jurisprudence on Freedom of Religion, (Religion and International Law: Living Together 277-293 (Robert Uerpmann-Wittzack, Evelyne La-grange, and Stefan Oeter eds. 2018)).
• Effie Fokas, The Secular Court?, (November 1, 2016).
• ZW Taylor, Sources of Free Speech in U.S. Higher Education: What the Law Tells Us, (September 27, 2018).
• Thomas Colby, The Other Half Of The Abortion Right, (20 University of Pennsylvania Journal of Constitutional Law 1043 (2018)).
• Pooja Dadhania, Deporting Undesirable Women, (9 UC Irvine L. Rev. 53 (2018)).

11th Amendment Dismissal Avoids Ruling On Free Exercise Challenge To Medicaid Rule

In Scott v. Virginia Department of Medical Assistance Services, (WD VA, Oct. 19, 2018), a Virginia federal district court dismissed on 11th Amendment grounds a suit challenging a state Medicaid rule that deny payment for in-home care services rendered by the parent of a minor child. Here the state refused to grant an exception to allow a child's stepfather to be paid as an attendant caregiver.  The child's mother had argued that her religious beliefs require that only a male relative can help bathe her son, that parents be the primary caretakers of their children, and that no male other than her husband, father, or brother be in the house alone with her. Avoiding a ruling on the merits, the court held:

Scott brought her suit against DMAS itself, rather than the appropriate state official charged with the specific duty of enforcing the contested DMAS policy. Thus, the Ex Parte Young exception does not apply, and her suit is barred regardless of the relief sought.

Prison Cannot Limit Participation In Native American Religious Ceremonies To Ethnic Native Americans

In Guardado v. Nevada, 2018 U.S. Dist. LEXIS 177365 (D NV, Oct. 16, 2018), a Nevada federal district court held that a Mexican-American inmate's free exercise rights protected by RLUIPA were violated when the Nevada prison system implemented a requirement of the Nevada Indian Commission that participation in Native American religious ceremonies in prison be limited to those of Native American heritage. Plaintiff had argued that no other religion requires inmates to show proof of their ethnicity to practice their beliefs. The court, concluding that it need not reach plaintiff's equal protection arguments since the practice violates RLUIPA, held:

Here, the Court is satisfied that Plaintiff's Native American religious beliefs are sincerely held. Further, AR 810 is a substantial burden on Plaintiff's free exercise as he is Mexican-American and cannot show that he is Native American or provide documentation that he is registered or affiliated with any recognized tribe.... Defendants have not shown that any safety or security issues are likely to arise from Plaintiff's participation in Native American religious ceremonies.

The court issued a preliminary injunction requiring  that defendants permit Ernest Guardado "to participate in Native American religious ceremonies with the Native American practitioners including sweat lodge, prayer circle, drum circle, smudging, sacred pipe, and access to the Native Indian grounds."

Charges Filed Against Accused Pittsburgh Synagogue Shooter

The U.S. Attorney's Office for the Western District of Pennsylvania announced tonight the charges that are being filed against the Pittsburgh, Pennsylvania synagogue shooter:

On Saturday, October 27, 2018, at 8:05 p.m., U.S. Magistrate Judge Robert C. Mitchell signed a criminal complaint charging Robert Bowers of Baldwin, Pa., with 29 counts setting forth federal crimes of violence and firearms offenses. The crimes of violence are based upon the federal civil rights laws prohibiting hate crimes. The FBI in Pittsburgh is leading the investigation."

The federal complaint alleges that Bowers committed the following crimes on or about October 27, 2018, in the Western District of Pennsylvania:

• Eleven counts of Obstruction of Exercise of Religious Beliefs Resulting in Death (18 U.S.C. §§ 247(a)(2) and 247(d)(1))

• Eleven counts of Use of a Firearm to Commit Murder During and in Relation to a Crime of Violence (18 U.S.C. §§ 924(c)(1)(A) and 924(j)(1)

• Four counts of Obstruction of Exercise of Religious Beliefs Resulting in Bodily Injury to a Public Safety Officer 18 U.S.C. §§ 247(a)(2) and 247(d)(3))

• Three counts of Use and Discharge of a Firearm During and in Relation to a Crime of Violence (18 U.S.C. §§ 924(c)(1)(A) and 924(iii))

UPDATE: The Pittsburgh Post-Gazette reports on state charges that have also been filed against Bowers:

Later Saturday, Pittsburgh police filed 11 counts of criminal homicide against Mr. Bowers, along with six counts of attempted homicide; six counts of aggravated assault and 13 counts of ethnic intimidation.

Government Brief To SCOTUS Says Title VII Does Not Ban Transgender Discrimination

On Wednesday, the Justice Department filed a brief (full text) with the U.S. Supreme Court arguing that Title VII of the 1964 Civil Rights Act does not cover discrimination against an individual based on gender identity. The brief follows the position taken by the Trump Administration in an Oct. 2017 Justice Department Memo.  The brief was filed in response to the petition for certiorari in R.G. and G.R. Harris Funeral Homes, Inc. v. EEOC, in which the U.S. 6th Circuit Court of Appeals held that a Michigan funeral home violated Title VII when it fired a transgender employee who was in the process of transitioning from male to female. (See prior posting.) The government's brief ultimately urges the court to hold the petition in this case pending its decision on whether to grant review in two other cases raising similar issues. NBC News reports on the DOJ brief. SCOTUS blog has links to all the briefs filed with the Supreme Court in the case.