New York Village Is Considering New Permit Requirement For Eruvs

According to yesterday's Times Herald-Record, the Village Board of Woodbury, New York is considering a new law (full text) that for the first time will require residents to obtain a permit in order erect an eruv that extends into any right of way. Currently the village's growing Hasidic Jewish population has erected a number of eruvs, and the new law is directed at creating some uniformity among them. A permit application (including photos) will be required to describe the location and dimensions of any eruv, and provide written consent from all homeowners whose property it would cross. The eruv (usually made of fishing line, or of markers on utility poles) would need to be between 8 and 20 feet high, and translucent or the same color as the pole to which it is attached. Non-complying eruvs could not cross any public road, and existing non-complying eruvs that do cross public roads will need to be removed within 90 days of enactment of the new law. The proposed law would also regulate cell towers being placed on utility poles.

Recent Articles and Books of Interest

From SSRN:

• Bob Rush & Steve Sanders, Brief Amici Curiae of Scholars of Law, History, Bioethics, Gender, and Sexuality in Good v. Iowa Dept of Human Resources, (November 4, 2018).
• Marc Greendorfer, Discrimination as a Business Policy: The Misuse and Abuse of Corporate Social Responsibility Programs, (November 6, 2018).
• Etienne Toussaint, The New Gospel of Wealth: On Social Impact Bonds and the Privatization of Public Good, (56 Hous. L. Rev. 153 (2018)).

From SmartCILP:

• Yehezkel Margalit, Towards Establishing Parenthood by Agreement in Jewish Law, 26 American University Journal of Gender, Social Policy and the Law 647-689 (2018).
• Yolanda Rondon, Treatment of Domestic Terrorism Court Cases: Class and Mental Health in the Criminal System, 26 American University Journal of Gender, Social Policy and the Law 741-792 (2018).
• Symposium on Families and Religion. Articles by Larry O.C. Chukwu, Patrick F. Fagan, William L. Saunders, Lynn D. Wardle. 32 Brigham Young University Journal of Public Law 191-255 (2018).

Recent and Forthcoming Books:

• Ronald Hutton, The Witch: A History of Fear, from Ancient Times to the Present, (Yale Univ. Press, Oct. 2018).
• Donald A. Westbrook, Among the Scientologists: History, Theology, and Praxis, (Oxford Univ. Press, Dec. 2018).
• Mohammad Hashim Kamali, Crime and Punishment in Islamic Law: A Fresh Interpretation, (Oxford Univ. Press, Jan. 2019).
• Giuliana Chamedes, A Twentieth-Century Crusade: The Vatican’s Battle to Remake Christian Europe, (Harvard Univ. Press, June 2019).
• Adriano Prosperi, Crime and Forgiveness: Christianizing Execution in Medieval Europe, (Harvard Univ. Press, July 2019).

Recent Prisoner Free Exercise Cases

In Johnson v. Lassiter, 2018 U.S. Dist. LEXIS 193660 (WD NC, Nov. 13, 2018), a North Carolina federal district court dismissed an inmate's complaint that he was deprived of his religious literature and, when he said he needed his religious literature, he was told that Rastafarian or Moorish Science is not a real religion.

In Scott v. Lewis, 2018 U.S. Dist. LEXIS 193870 (ED MO, Nov. 14, 2018), a Missouri federal district court allowed a Hindu inmate to move ahead with his RLUIPA action for an injunction for failure to accommodate his vegetarian religious diet.

In Collins v. Williams, 2018 U.S. Dist. LEXIS 194187 (D SC, Nov. 13, 2018), a North Carolina federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 194229, Oct. 18, 2018) and dismissed an inmate's complaint that he was denied publications, right to attend gatherings and observe holy days of Nation of Gods and Earths because the group was improperly identified as a security threat group.

In Monroe v. Tyo, 2018 U.S. Dist. LEXIS 195078 (ND NY, Nov. 14, 2018), a New York federal magistrate judge recommended that a former inmate who is Muslim be allowed to move ahead with his complaint that he was required to drink water to provide a urine sample for a drug test during Ramadan.

In Carpenter v. Itawamba County Jail, 2018 U.S. Dist. LEXIS 195849 (ND MS, Nov. 16, 2018), a Mississippi federal magistrate judge concluded that restricting an inmate's access to a Christian pastor when the inmate was not a Christian did not interfere with his free exercise rights.

In Richard v. Strom, 2018 U.S. Dist. LEXIS 196327 (D CT, Nov. 19, 2018), a Connecticut federal district court allowed a Moorish-American inmate to move ahead with claims that he was not permitted to purchase a fez or receive a book, "Nationality, Birthrights and Jurisprudence." However it dismissed his complaint that the Grand Mufti's return address was torn from correspondence he received.

In Heritage Family Church, Inc. v. Kansas Department of Corrections, 2018 U.S. Dist. LEXIS 197543 (D KA, Nov. 20, 2018), a Kansas federal district court denied a preliminary injunction to an inmate who claims that his religious exercise is burdened in various ways (including services, texts and clothing) by the refusal to recognize the Apostolic Faith.

In Hopper v. County of Riverside, 2018 U.S. Dist. LEXIS 198877 (CD CA, Nov. 20, 2018), a California federal magistrate judge held that a former detainee's complaint that he was unable to attend group religious services is subject to dismissal.

DOJ Seeks Early Supreme Court Review of Transgender Military Policy

As reported by SCOTUblog, the Justice Department has filed petitions for certioriari in three cases in which district courts have enjoined implementation of the Trump Administration's new policy on transgender individuals serving in the military.  The petitions in all three cases, Trump v. Karnoski, Trump v. Doe, and Trump v. Stockman, were filed before Circuit Courts of Appeal handed down decisions in the cases-- an unusual procedural step.  The Trump Administration policy-- unlike the policy adopted by the Obama Administration-- precludes most new enlistments by transgender individuals. (See prior posting.) The cert. petitions argue for the immediate granting of review:

Absent an immediate grant of certiorari, there is ... little chance of a prompt resolution of the validity of Secretary Mattis’s proposed policy. And so long as this or any other injunction remains in place, the military will be forced nationwide to maintain the Carter policy—a policy that the military has concluded poses a threat to “readiness, good order and discipline, sound leadership, and unit cohesion,” which “are essential to military effectiveness and lethality.”

Twitter CEO Charged In Indian Court With Outraging Religious Feelings

According to Times of India yesterday, a local court in Jodhpur, India has agreed to move ahead with a complaint against Twitter CEO Jack Dorsey for his Tweet of an anti-Brahmin photo.  The photo taken by Dorsey during his recent trip to India shows a woman holding a sign reading "Smash Brahminical Patriarchy". The petition filed against Dorsey charges him with violation of India's Penal Code Sec. 295A (Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs), as well as with defamation and criminal conspiracy. A hearing is set for Dec. 1.

President's Thanksgiving Day Proclamation

Donald Trump this week issued a formal Proclamation (full text) declaring today as a National Day of Thanksgiving. The Proclamation reads in part:

We are especially reminded on Thanksgiving of how the virtue of gratitude enables us to recognize, even in adverse situations, the love of God in every person, every creature, and throughout nature. Let us be mindful of the reasons we are grateful for our lives, for those around us, and for our communities. We also commit to treating all with charity and mutual respect, spreading the spirit of Thanksgiving throughout our country and across the world.

DOJ Files Statement of Interest In Church's Challenge To Limits On Use of Civic Center

As previously reported, in August a suit was filed in a South Carolina federal district court against Edisto Beach challenging the Town's rule change that prohibits renting space in the town's Civic Center for religious worship services.  Now the lawsuit has attracted the attention of the Justice Department. On Tuesday, DOJ filed a Statement of Interest (full text) in Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, arguing in part:

... [T]he Town’s legally erroneous “concerns” about Establishment Clause liability turn First Amendment jurisprudence on its head: the First Amendment prohibits the content-based and viewpoint-based restrictions on protected speech that the Town seeks to permit and permits religious worship services the equal access to government facilities that the Town seeks to prohibit.

Charleston Post and Courier reports on developments.

Court Bars Enforcement of Trump's Limitation on Asylum Seekers

In East Bay Sanctuary Covenant v. Trump, (ND CA, Nov. 19, 2018), a California federal district court issued a temporary restraining order against implementation of a Presidential Proclamation and implementing rule that allow asylum to be granted only to refugees who cross the border at a designated port of entry.  8 USC Sec. 1158(a) provides:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival ...), irrespective of such alien’s status, may apply for asylum....

Focusing on this section and on treaty obligations, the court said in part:

The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the INA and the expressed intent of Congress. Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.

A hearing on whether a preliminary injunction should issue in the case was set for Dec. 19.  Washington Post reports on the decision. The decision led to an unusual war of words between President Trump and Chief Justice John Roberts.

9th Circuit: Animal Rights Group Lacks Standing To Challenge Kapparot Practices

In United Poultry Concerns v. Chabad of Irvine, (9th Cir., Nov. 20, 2018), the U.S. 9th Circuit Court of Appeals held that an animal rights group lacks standing to sue a Jewish religious organization for violating California's Unfair Competition Law. The suit challenged Chabad's sponsoring of kapparot -- an atonement ritual carried out before Yom Kippur involving the use and slaughter of live chickens.  The district court had reached the merits of the claim and had held that the acceptance of a donation in connection with the performance of religious ritual is not covered by the state's Unfair Competition Law. (See prior posting.) The 9th Circuit, by contrast, held that plaintiff was not injured by Chabad's actions and so lacks Article III standing. It vacated the district court's judgment and ordered the case dismissed for lack of jurisdiction. Metropolitan News-Enterprise reports on the decision.

Court Invalidates Mississippi's Restrictive Ban On Abortions

In Jackson Women's Health Organization v. Currier, (SD MS, Nov. 20, 2018), a Mississippi federal district court held unconstitutional a recently enacted Mississippi statute that prohibits most abortions after 15 weeks gestation.  The court said in part:

[T]he real reason we are here is simple. The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade.

This Court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.

Bustle reports on the decision.

2 Philadelphia Police Officers Claim Anti-Semitic Harassment

Two Philadelphia police officers filed suit on Monday against the Philadelphia Police Department and Department supervisors alleging the creation and sanctioning of a racist, anti-Semitic and anti-Jewish environment. The complaint (full text) in Gonzalez v. City of Philadelphia, (ED PA, filed 11/19/2018) seeks damages for harassment, discrimination and hostile work environment in violation of 42 USC Secs. 1981, 1983 and 1985. WHYY News further summarizes the complaint:

The federal civil rights lawsuit claims an array of abuse — that the officers were not given time off to celebrate Jewish holidays, that a Nazi “SS” symbol and a German phrase meaning “skull and crossbones” were scratched onto their lockers, and that a police patrol car was marked with the Star of David with the words “Hebrew Hammer.”

Civil rights lawyers Brian Mildenberg, who is representing the officers, said those acts were intended to “scare and harass” Reznik, a Jewish immigrant born in Russia who is a 12-year veteran of the force.

Pastor Sues To Access Homeless Encampment

The Episcopal Diocese of Olympia reports on a lawsuit filed in a Washington federal district court on Monday against the city of Aberdeen, Washington by an Episcopal priest and two others over access to a homeless encampment. The city has purchased the land and intends to clear it, but in the meantime is requiring anyone entering the site to obtain a permit. Rev. Sarah Monroe, who was denied a permit, explains the lawsuit:

My permit to visit this encampment was denied by the city on the grounds that I did not provide enough detail, or a schedule, or a clear list of what I intend to do during my visits. I am a priest. I have been pastoring the people in this camp for five years. I do everything from drive people to the hospital, to prayer, to taking people to social service appointments, to performing last rites when people die here. These essential pastoral duties do not happen on a schedule, as any member of the clergy can attest. I have continued to visit people, even though I have been denied a permit, and am petitioning the court to prevent the city from arresting me.

Homeless people have a constitutionally protected right to freedom of religious expression. I have a constitutionally protected right to my freedom of religious expression, which includes serving the poor and the sick and the hungry.

California Appeals Court OK's Repeal of Belief Exemption To Immunization Requirements

In Love v. Department of Education, (CA App., Nov. 20, 2018), a California state appellate court rejected state constitutional challenges to a California law that repealed the personal belief exemption to the state's immunization requirements for school children.  Saying that "Plaintiffs’ arguments are strong on hyperbole and scant on authority," the court rejected claims that the repeal violates the constitutional right to attend school, substantive due process, or rights of privacy or free exercise of religion.

Ecclesiastical Abstention Does Not Require Dismissal of Negligent Supervision Claim

In Bourque v. Roman Catholic Diocese of Charlotte, NC, (NC App., Nov. 20, 2018), a North Carolina appellate court held that the ecclesiastical abstention doctrine does not require dismissal of a suit alleging negligent supervision and negligent infliction of emotional distress. However it does require dismissal of a negligent hiring claim. The suit alleges that a male church youth leader raped a 14-year old female who sought counsel from him about being bullied. Four years later, he repeatedly raped her again. The court said in part:

Plaintiffs’ claim is not barred by the First Amendment because determining whether Bishop Jugis and the Diocese knew or had reason to know of Defendant’s proclivities for sexual wrongdoing requires only the application of neutral principles of tort law, and “the application of a secular standard to secular conduct that is tortious is not prohibited by the Constitution.”

Court Orders Release of Iraqi Chaldean Detainees

A Michigan federal district court yesterday, in the latest installment in a case filed last year, ordered the release from federal detention of hundreds of Iraqi deportees who have been issued final removal orders, but whom the government has been unable to repatriate. Most of the detainees, according to the court, "are Chaldean Christians who would face persecution, torture, and possibly death if returned to Iraq." In Hamama v. Adducci, (ED MI, Nov. 20, 2018), the court said in part:

The law is clear that the Federal Government cannot indefinitely detain foreign nationals while it seeks to repatriate them, when there is no significant likelihood of repatriation in the reasonably foreseeable future. This principle emanates from our Constitution’s core value of rejecting arbitrary restraints on individual liberty.

The issue the Court now resolves is whether there is such a likelihood of repatriation for scores of Iraqi nationals whom the Government has detained for an extended period—many for well over a year—while it engages in a diplomatic dialogue with Iraq that has yet to produce any clear agreement on repatriation. In fact, the weight of the evidence actually uncovered during discovery shows that Iraq will not take back individuals who will not voluntarily agree to return. This means that the Iraqi detainees could remain locked up indefinitely—many in local jails.... [T]he Government has acted ignobly in this case, by failing to comply with court orders, submitting demonstrably false declarations of Government officials, and otherwise violating its litigation obligations—all of which impels this Court to impose sanctions.

As explained fully below, the Court will grant a preliminary injunction, as requested by Petitioners in this case, ordering that those detained more than six months be released under orders of supervision.

ACLU issued a press release announcing the decision.

Court Holds Federal Female Genital Mutilation Statute Unconstitutional

A Michigan federal district court today held, on federalism grounds, that the federal Female Genital Mutilation statute, 18 USC 116, is unconstitutional. The case involves the prosecution of medical personnel and of the mothers of minor girls in the small, Indian-Muslim Dawoodi Bohra community. (See prior posting.)  In United States v. Nagarwala, (ED MI, Nov. 20, 2018), the court rejected the government's argument that the statute can be supported as an exercise of Congress' treaty power or its power to regulate interstate commerce.

The International Covenant on Civil and Political Rights which Congress ratified in 1992 (subject to certain understandings and reservations) requires the adoption of laws to protect the rights of minors. One of the understandings imposed by Congress was that ratification would not change the relative roles of the federal and state governments. The court said in part:

Congress overstepped its bounds in  legislating to prohibit FGM.... FGM is a "local criminal activity" which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress.

In rejecting the government's Commerce Clause arguments, the court said in part:

In the present case, the government has failed to show that FGM is a commercial activity. It claims that “[l]ike child pornography and marijuana, an interstate market exists for FGM.” ... Yet the government’s only evidence of such a market is the fact that it has alleged nine FGM victims in the present case, five of whom were brought to Michigan from neighboring states.... This is not a market, but a small number of alleged victims. If there is an interstate market for FGM, why is this the first time the government has ever brought charges under this 1996 statute? The government’s attempt to show that there is an interstate market for FGM falls flat; its comparison to the multi-billion-dollar interstate markets for marijuana and pornography is unsupported and unconvincing....

Finally, the government asserts that only a federal statute can deal with FGM because, as Congress asserted in its fourth finding, “the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control.”... This argument fails for at least two reasons. First, the Commerce Clause allows Congress to regulate commercial activity that has a substantial effect on interstate commerce, not activity that is “beyond the ability of any single State or local jurisdiction to control.” Second, the government informs the Court that twenty-seven states have passed FGM statutes ... and nothing prevents the others from doing so.

Detroit News reports on the decision.

6h Circuit: Police Need Not Give Journalist Booking Photos of Woman Without Hijab

In Schlussel v. City of Dearborn Heights, (6th Cir., Nov. 19, 2018), the U.S. 6th Circuit Court of Appeals rejected arguments by a journalist that the City violated her 14th and 1st Amendment rights when it refused her Michigan Freedom of Information Act request for booking photos that were taken of a Muslim woman, Malak Kazan, that showed her without her hijab.  The City's refusal was pursuant to a privacy policy it instituted in response to a previous suit by brought Kazan after her arrest. In this case journalist Deborah Schlussel argued unequal treatment because booking photos of Kazan had been furnished to Kazan's lawyer before the privacy policy was adopted. The court rejected Schussel's equal protection, as well as her Establishment Clause, argument.

Suit Seeking Cannabis Exemption For Rastafari Moves Ahead In Iowa

An Iowa state trial court has denied a motion by the Iowa Board of Pharmacy to dismiss a suit brought against it claiming that it abused its discretion when it refused to recommend to the state legislature an exemption for religious use of cannabis by Rastafari.  (Order in Olsen v. Iowa Board of Pharmacy, (IA Dist. Ct., Nov. 16, 2018). Links to all the pleadings in the case as well as to audio of oral arguments are available here. (See prior related posting.)

Recent Articles of Interest

From SSRN:

• Marc O. DeGirolami, The Sickness Unto Death of the First Amendment, (Harvard Journal of Law and Public Policy, Forthcoming).
• Gerald Lebovits, Holocaust Houdinis (Condensed Remembrance Version), (Just Us 12 (Apr. 2018) (Remembrance Issue No. 7)).
• Benjamin L. Berger, Liberal Constitutionalism and the Unsettling of the Secular, (in Rex Adhar, ed., Research Handbook on Law and Religion (Northampton, Mass: Edward Elgar, 2018), 198-220).
• Benjamin L. Berger, Religious Freedom in Canada: A Crucible for Constitutionalism, ([2018] 1 Quaderni di Diritto e Politica Ecclesiastica 111-125).
• Leslie Kendrick & Micah Schwartzman, The Etiquette of Animus, (Harvard Law Review, Vol. I32, No. 1, p. 33-70, 2018).
• Benjamin L. Berger, Assessing Adler: The Weight of Constitutional History and the Future of Religious Freedom, (National Journal of Constitutional Law (2018 Forthcoming)).
• Faisal Bhabha, Religious Freedom in a Multicultural Society, (Cardus Law Research Series on Religious Freedom (January 2017)).
• Zachary Price, Symmetric Constitutionalism: An Essay on Masterpiece Cakeshop and the Post-Kennedy Supreme Court, 70 Hastings L.J., Forthcoming).
• Steven Douglas Smith, An Open Letter to Justice Ruth Bader Ginsburg, (2018).
• Rebecca Ruth Gould, Is the ‘Hate’ in Hate Speech the ‘Hate’ in Hate Crime? Waldron and Dworkin on Political Legitimacy, (Forthcoming, Jurisprudence).
• Joseph A. Seiner, The Discrimination Presumption, (Notre Dame Law Review, 2019 (Forthcoming)).

From SmartCILP:

• Erin E. Stiles, How to Manage a Marital Dispute: Legal Pluralism from the Ground Up in Zanzibar, 8 U.C. Irvine Law Review 275-297 (2018).

Recent Prisoner Free Exercise Cases

In Howard v. Polley, 2018 U.S. Dist. LEXIS 190747 (D NV, Nov. 6, 2018), a Nevada federal district court allowed a Muslim inmate to move ahead with his complaint that it takes up to several weeks for Muslim inmates to be screened so they can attend Jumu'ah services, while there is no screening for Christian and Jewish inmates.

In Kindred v. Allenby, 2018 U.S. Dist. LEXIS 191495 (ED CA, Nov. 8, 2018), a California federal magistrate judge held that an inmate's complaints regarding search and seizure of personal and religious property are subject to dismissal.

In Thomas v. Cox, 2018 U.S. Dist. LEXIS 192576 (D NV, Nov. 9, 2018), a Nevada federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 192645, Oct. 24, 2018) and denied a preliminary injunction to prevent destruction of videos of the prison culinary area in connection with his complaint that he was not furnished kosher meals.

In Hansler v. Kelley, 2018 U.S. Dist. LEXIS 192817 (WD AR, Nov. 13, 2018), an Arkansas federal district court dismissed a Wiccan inmate's complaint that his Wiccan Bible and Book of Grimoires were confiscated, and that there were no Wiccan religious leaders or volunteers to supervise its religious services.

In Doyle v. United States, 2018 U.S. Dist. LEXIS 192924 (ED KY, Nov. 13, 2018), a Kentucky federal district court dismissed a Hanafi Muslim inmate's complaint that inmates could pray in groups no larger than three.

In Shakanasa v. Allison, 2018 U.S. Dist. LEXIS 193482 (ND CA, Nov. 13, 2018), a California federal court allowed an inmate to move ahead with his complaint that he was not permitted to change his name or purchase religious items, and for retaliation.

In Wallace v. Solomon, 2018 U.S. Dist. LEXIS 193662 (WD NC, Nov. 14, 2018), a North Carolina federal district court dismissed an inmate's complaint that the policy providing for non-meat selections is inadequate to comply with Islamic dietary law.