Happy New Year 2019

Dear Religion Clause Readers:

Happy New Year 2019! I hope you continue to find Religion Clause an important resource for news on religious liberty and church-state developments. I continue to strive for objectivity in my posts and to provide links to an abundance of primary source material underlying each post.  I am pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, clergy, governmental agency personnel, students and others working professionally dealing with church-state relations and religious liberty concerns in the U.S. and around the world.

It has been a year in which some of the most highly charged church-state and religious liberty issues have been a bit defused by judicial and administrative decisions.  However, challenges to many of those administrative regulations are still working their way through the courts.  Similarly a number of the questions which courts have avoided through narrow decisions will inevitably arise again in the coming years.  Also this past year, a number of judicial and legislative developments abroad have continued to reflect interesting approaches to religious liberty concerns.

Thanks again to all of you who are loyal readers-- both those who have followed Religion Clause for years and those of you who have only recently discovered the blog.  A special thanks to readers who have quickly sent me leads on recent developments, and to those who have alerted me to mistakes. All of you have made Religion Clause the most recognized and reliable source for keeping informed on the intersection of religion with law and politics. I encourage you to recommend Religion Clause to colleagues, students and friends who might find it of interest.  I particularly renew this request this year because, for reasons inexplicable to me, there has been a fall off of page views during the last quarter of 2018 as recorded by the counters I use.  Religion Clause is accessible via Twitter and Facebook, as well as through traditional online access and RSS feeds.

I also remind you that the Religion Clause sidebar contains links to a wealth of resources.  Please e-mail me if you discover broken links or if there are other links that I should consider adding.

Best wishes for 2019!  Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions.

Howard M. Friedman

Court Refuses To Dismiss Suit Over Parents' Religious Promise

In Gonzales v. Mathis Independent School District, (SD TX, Dec. 27, 2018), a Texas federal district court refused to dismiss a claim under the Texas Religious Freedom Restoration Act by parents of school children who were unable to participate in interscholastic extra-curricular activities because of their violation of grooming standards..  The facts at issue are summarized by the court:

Parents are Hispanic and practice the Roman Catholic religion. As an expression or exercise of their faith and heritage, and in a promise (promesa) to God, Parents have kept a strand of hair on the back of the Children’s heads uncut since birth. More recently,the Children have adopted that promise as their own affirmation of faith and heritage and continue to maintain the single long braid down their backs. However, Parents admit that the promise is not dictated by the Catholic religion and they could change it at any time.

[Thanks to Eugene Volokh via Religionlaw for the lead.] 

Recent Prisoner Free Exercise Cases

In Pattison v. State Department of Corrections, 2018 Nev. App. Unpub. LEXIS 962 (NV App., Dec. 17, 2018), a Nevada appellate court held that the trial court did not abuse its discretion in denying a permanent injunction to require the Department of Corrections to furnish an inmate kosher meals.

In Jackson v. Mike-Lopez, 2018 U.S. Dist. LEXIS 215692 (D MN, Dec. 20, 2018), a Minnesota federal magistrate judge recommended dismissing claims of several inmates that their placement in segregation prevented them from taking part in various religious practices.

Objection To Immunization Was Not A Religious Belief

In Potter v. St. Joseph's Medical Center, (MN App., , Dec. 24, 2018), a Minnesota appellate court held, in a case involving the denial of unemployment benefits, that a claimant's refusal to obtain an influenza shot "was driven by a personal, secular belief," not a religious one.  The court said in part:

Potter's assertion that her faith requires that she not inject herself with impurities is undercut by her own rationale. Potter stated that if the flu shot was scientifically proven to be effective she "probably would" receive it. It follows that Potter is unwilling to inject what she considers scientifically ineffective impurities but is willing to inject what she considers scientifically effective impurities. This supports the respondents' assertion that Potter's beliefs are not sincerely held religious beliefs, but, rather, "her objection was based on her medical and scientific views, cloaked under the guise of religion."

State AGs Seek To Enjoin Final Broad ACA Exemptive Rules On Contraceptives

Attorneys general from 14 states have filed a motion for a preliminary injunction in a California federal district court against various federal departments.  The motion seeks to prevent Trump Administration rules expanding religious and moral exemptions from the Affordable Care Act contraceptive coverage mandate from taking effect. The motion and memorandum in support (full text) in State of California v. Azar, (ND CA, filed 12/19/2018) contends that the new rules are contrary to the text and purpose of the Affordable Care Act and were adopted without meeting Administrative Procedure Act requirements. Interim Final Rules similar to the Final Rules at issue in the case have already been enjoined by the courts. (See prior posting.)  Consumer Affairs reports on the preliminary injunction motion.

Australian Court Says Beth Din May Not Impose Religious Sanctions To Force Party To Appear

In Ulman v Live Group Pty Ltd., (New South Wales Ct. App., Dec. 20, 2018), the Court of Appeals of the Australian state of New South Wales held, in a 2-1 decision, that the rabbis and registrar of a Jewish religious court (Beth Din) were properly held in criminal contempt of a secular court for attempting to force adjudication of a commercial dispute in the Beth Din rather than in civil courts. The court however reduced the fines imposed for the contempt to a total of $25,000.  In the case, the Beth Din had informed the attorney representing the business being summoned to appear:

Unless by 5pm January 26 2017 the Beth Din hears from you on behalf of your client that he has recanted and that he acquiesces to the Beth Din process in accordance with Jewish Law, (which is indeed compatible with secular law), the following halachic sanctions will apply and the Synagogue/s where he prays will be informed accordingly.

1.   He will not be counted to a minyan.

2.   He will not be able to receive an aliyah to the Torah.

3.   He will not be offered any honour in the Synagogue.

J-Wire reports on the decision

9th Circuit Denies En Banc Review In School Board Prayer Case

Yesterday, the U.S. 9th Circuit Court of Appeals denied en banc review in Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, (9th Cir., Dec. 26, 2018). In the case, a 3-judge panel applied the Lemon test to strike down a California school board's prayer policy for board meetings. (See prior posting.)  Seven active judges plus one judge holding senior status who is technically unable to vote on the rehearing petition disagreed with the denial of en banc review.  An opinion by Senior Judge O'Scannlan argued that the case should be governed by the legislative prayer precedents rather than by the Lemon test. An opinion by Judge Nelson argued that even it the Lemon test applies, no Establishment Clause violation was present. The seven dissenting active judges joined all or part of both opinions. San Francisco Chronicle reports on the denial of review.

DC Circuit Denies En Banc Review In Bus Ad Case

Last Friday, the U.S. Court of Appeals for the D.C. Circuit, by a vote of 7-2, denied an en banc rehearing in Archdiocese of Washington v. Washington Metropolitan Transit Authority, (DC Cir., Dec. 21, 2018). In the case, a 3-judge panel rejected challenges to the WMATA's guidelines which preclude the sale of advertising space on public buses for issue-oriented advertising, including political, religious and advocacy ads. (See prior posting.) Judge Griffith, joined by Judge Kastas, filed an opinion dissenting from the denial of a rehearing, arguing in part"

WMATA allows entities like Walmart to speak on the subjects of the perfect Christmas gift (toys) and how to spend the Christmas season (buying gifts and visiting stores at specified hours). And WMATA permits the Salvation Army to run ads encouraging people to donate to certain charities. The Archdiocese would also like to express its views on the perfect Christmas gift (Christ), how to spend the holiday (caring for the needy and visiting churches for Mass at specified hours), and whether to contribute to charities (yes, and particularly to religious charities). By barring the Archdiocese from doing so, WMATA’s policy discriminates against religious viewpoints,,,,

[Thanks to James Phillips for the lead.] 

Top Ten 2018 Religious Liberty / Church-State Developments

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year-- including developments internationally in the mix.  My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention..  The selection obviously involves a good deal of subjective judgment, and I welcome e-mail comment from those who disagree with my choices.  So here are my Top Ten picks as another rather chaotic year comes to an end:

1. The U.S. Supreme Court issues a narrow decision in the Masterpiece Cakeshop case, failing to resolve the basic question of how to balance religious liberty and free speech rights against demands for equality.
2. Battles continue in the courts over whether existing protections against sex discrimination cover discrimination on the basis of sexual orientation or gender identity.
3. The third version of President Trump's "travel ban" is upheld by the U.S. Supreme Court.
4. Release of the Pennsylvania Grand Jury report on sexual abuse by Catholic priests in 6 dioceses refocuses attention on the clergy sex abuse scandal.
5. Mass shooting in Pittsburgh synagogue raises new fears of anti-Semitism in the United States.
6. U.S. Supreme Court protects the speech rights of pro-life pregnancy centers, finding California's FACT Act unconstitutional.
7. Canada and Ireland repeal blasphemy laws, while blasphemy cases elsewhere (Pakistan, Spain, Austria, India) continue to attract attention.
8. Federal district court holds federal Female Genital Mutilation statute unconstitutional.
9. Free speech challenges to state laws designed to combat individual participation in boycott of Israel meet success.
10. Congress takes action to fight genocide; passes Elie Wiesel Genocide and Atrocities Prevention Act and.  Iraq and Syria Genocide Relief and Accountability Act .

Don Byrd at Blog From the Capital has a different set of the Top Ten.

Christmas and the Trump White House

Today is Christmas. Vogue last week published an analysis of this year's White House Christmas Portrait. Meanwhile the White House website gives details on Christmas decorations at the White House, and this year's White House Christmas Card goes back to the traditional Merry Christmas greeting. Elite Daily discusses the issue.

Congress Passes Genocide and Atrocities Prevention Act

Last Friday, the House of Representatives gave final passage to S.1158, Elie Wiesel Genocide and Atrocities Prevention Act of 2018 (full text). Section 3 of the Act provides:

It shall be the policy of the United States to—

(1) regard the prevention of atrocities as in its national interest;

(2) work with partners and allies, including to build their capacity, and enhance the capacity of the United States, to identify, prevent, and respond to the causes of atrocities, including insecurity, mass displacement, violent conflict, and other conditions that may lead to such atrocities; and

(3) pursue a United States Government-wide strategy to identify, prevent, and respond to the risk of atrocities by—

(A) strengthening the diplomatic, risk analysis and monitoring, strategic planning, early warning, and response capacities of the Government;

(B) improving the use of foreign assistance to respond early, effectively, and urgently in order to address the causes of atrocities;

(C) strengthening diplomatic response and the effective use of foreign assistance to support appropriate transitional justice measures, including criminal accountability, for past atrocities;

(D) supporting and strengthening local civil society, including human rights defenders and others working to help prevent and respond to atrocities;

(E) promoting financial transparency and enhancing anti-corruption initiatives as part of addressing causes of conditions that may lead to atrocities; and

(F) employing a variety of unilateral, bilateral, and multilateral means to prevent and respond to atrocities by—

(i) placing a high priority on timely, preventive diplomatic efforts; and

(ii) exercising leadership in promoting international efforts to prevent atrocities.

The bill will now be forwarded to the President for his signature.

Ohio Governor Signs One Abortion Restriction, Vetoes Another

CNN Wire reports that Ohio Gov. John Kasich signed a bill into law last Friday that bans the commonly used  dilation and evacuation (D&E) procedure for abortions (Sub. S.B. 145). The new law labels such abortions "dismemberment abortions". Meanwhile, Kasich vetoed a bill that would have banned abortions where the fetus has a detectable heartbeat-- generally at 6 weeks of gestation. (Sub. H.B. 258). A press release from the Governor's office reports on the actions. [Thanks to Scott Mange for the lead.]

Recent Articles of Interest

From SSRN:

• Dwight G. Newman, Arguing Indigenous Rights Outside Section 35: Can Religious Freedom Ground Indigenous Land Rights, and What Else Lies Ahead?, (Tom Isaac, ed., Key Developments in Aboriginal Law (Toronto: ThomsonReuters Canada, 2018)),
• Teresa Stanton Collett, A Catholic Perspective on Law School Diversity Requirements, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 18-27 (2018).
• Chloë Kennedy, Defences: Justification, Excuse and Provocation. (in Norman Doe, Mark Hill & John Witte (eds), Christianity and Criminal Law: An Introduction (CUP, 2019)),
• Christof Bezemek, Stranger in a Strange Land: The Alien and the State, (In Julia Iliopoulos-Strangas, ed., Migration: Neue Herausforderungen für Europa, für die Staatssou-veränität und für den sozialen Rechtsstaat (2017)),
• Gary J. Simson, Permissible Accommodation or Impermissible Endorsement? A Proposed Approach to Religious Exemptions and the Establishment Clause, (106 Kentucky Law Journal 535 (2017-2018)).
• Barry McDonald & Erwin Chemerinsky, Eviscerating a Healthy Church-State Separation, (Washington University Law Review, Forthcoming).
• Bogdan David, Prevention and Fight Against Harvest and Revenge Motivated Crimes, (November 20, 2018).
• Christopher R. Green, Justice Gorsuch and Moral Reality, (Alabama Law Review, Forthcoming),
• Teresa Quintel  & Carsten Ullrich, Self-Regulation of Fundamental Rights? The EU Code of Conduct on Hate Speech, Related Initiatives and Beyond, (Bilyana Petkova & Tuomas Ojanen, eds., Fundamental Rights Protection Online: The Future Regulation Of Intermediaries, Edward Elgar Publishing, Summer/Autumn 2019).

From SSRN (Law of India):

• G. V. Mahesh Nath, Latest Trends in Succession among Hindus, (November 23, 2018).
• Deepa Das Acevedo, Pause for Thought: Supreme Court's Verdict on Sabarimala, (Economic & Political Weekly, Vol. LIII, No. 43, p. 12 (October 27, 2018)).
• Adeel Hussain, Muhammad Iqbal's Constitutionalism, (Indian Law Review, 2:2 (2018)),

From SSRN (Islamic Law):

• Ousmane Seck, Islamic Microfinance Experience in a Secular State: Case of Benin, (IRTI Policy Paper No. 2017-05 (2017),
• Mohammed Obaidullah, Managing Climate Change: The Role of Islamic Finance, (IRTI Policy Paper No. 2017-01 (2017).
• Mohammed Obaidullah, An Investigation into Goodness of Zakat Laws in Selected Countries, (IRTI Policy Paper No. 2017-04 (2017)),
• Khalifa MohamedæAli, Waqf Resource Mobilization for Poverty Alleviation Based on Maqasid Framework, (IRTI Policy Paper No. 2018-03 (2018)).
• Azam Ali, Tanveer Kishwar & Muhamed Zulkhibri, Islamic Financial Institutions and Participatory Finance Constraints: The Case of Pakistan, (IRTI Policy Paper No. 2018-02 (2018)).
• Jakub Vojtěch, The EU Framework for Islamic Securitisation and Sukuk in the Times of Brexit, (Charles University in Prague Faculty of Law Research Paper No. 2018/III/2 (2018)).

From elsewhere:

• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations (updated version, 2018).

Recent Prisoner Free Exercise Cases

In Amaker v. Bradt, (2d Cir., Dec. 19, 2018), the 2nd Circuit affirmed the dismissal for lack of exhaustion of administrative remedies of an inmate's claim regarding access to religious meals and retaliation.

In Vincent v. Stewart, (9th Cir., Dec. 21, 2018), the 9th Circuit reversed the district court's dismissal of free exercise and RLUIPA claims regarding a religious diet.

In Hancock v. Cirbo, 2018 U.S. Dist. LEXIS 212319 (D CO, Dec. 14, 2018), a Colorado federal magistrate judge recommended allowing a Jewish inmate to move ahead on his claim of denial of kosher meals, but recommended dismissing his complaint regarding the past requirement that he shave his beard.

In Brown v. Solomon, 2018 U.S. Dist. LEXIS 212824 (WD NC, Dec. 18, 2018, a North Carolina federal district court allowed an inmate to move ahead with claims that prison authorities should not classify Jehovah's Witness as a Christian- Protestant sect, and should provide separate group worship services for Jehovah's Witness inmates.

In Ables v. Hall, 2018 U.S. Dist. LEXIS 214749 (ND MS, Dec. 21, 2018), a Mississippi federal magistrate judge dismissed an inmate's claim of free exercise violations when he was required to withdraw from seminary school for excessive tardiness stemming from no regular schedule for administration of insulin shots.

In Pattison v. State Department of Corrections, 2018 Nev. App. Unpub. LEXIS 962 (NV App,, Dec. 17, 2018), a Nevada appellate court affirmed the trial court's award of only $1 in nominal damages for denial of kosher meals to an inmate. A concurring opinion disagreed with the majority on the need for physical injury to recover damages for a 1st Amendment violation.

Supreme Court Will Not Stay Injunction Against Asylum Rule

Today the U.S. Supreme Court issued an order (full text) in East Bay Sanctuary Covenant v. Trump (stay denied, Dec. 21, 2018), denying a stay of a preliminary injunction against implementation of a Presidential Proclamation and a rule that allow asylum to be granted only to refugees who cross the border at a designated port of entry. (See prior posting). Justices Thomas, Alito, Gorsuch and Kavanaugh dissented from the denial of the stay.

Suit Against Atlanta Archdiocese For Past Sex Abuse

A lawsuit was filed in a Georgia state trial court yesterday against the Atlanta Catholic Archdiocese by a man who was the victim of priest sexual abuse over 40 years ago when he was 12 to 15 years old.  According to AP, the suit alleges:

The Archdiocese and Archbishop of Atlanta owed a duty of reasonable care to protect minor parishioners who were altar boys at St. Joseph’s church.

It also contends that the Archdiocese's failure to report the alleged abuse constituted a public nuisance.

RLUIPA Suit By Chabad Challenges Demolition Order

The Baltimore Sun reports that a lawsuit was filed yesterday in a Maryland federal district court by the Chabad House serving Goucher College and Towson University alleging that authorities violated the Religious Land Use and Institutionalized Persons Act in requiring that a 2016 expansion of the Chabad House be razed because it violates a land covenant. State courts have given Chabad until mid-January to set aside funds to comply with the demolition order. According to the Sun:

In the lawsuit, Friends of Lubavitch alleges that Baltimore County officials required Chabad to take part in unnecessary hearings and issued citations that were without merit. The suit also says officials falsely claimed Chabad was operating as a “community center” instead of a residence because the Rivkins were hosting students for Shabbat dinners and Jewish instruction.

European Court:Says Greece Should Not Have Applied Sharia Law In Will Contest

In Molla Sali v. Greece, (ECHR, Dec. 19, 2018), the European Court of Human Rights in a Grand Chamber judgment held that Greece had violated Art. 14 of the European Convention on Human Rights which bans discrimination on the basis of religion when it insisted that Sharia law be applied to a wife's inheritance rights. As summarized in part by a press release issued by the Court:

On the death of her husband, Ms Molla Sali inherited her husband’s whole estate under a will drawn up by her husband before a notary. Subsequently, the deceased’s two sisters challenged the validity of the will, arguing that their brother had belonged to the Thrace Muslim community and that any question relating to inheritance in that community was subject to Islamic law and the jurisdiction of the “mufti” and not to the provisions of the Greek Civil Code. They relied, in particular, on the 1920 Treaty of Sèvres and the 1923 Treaty of Lausanne, which provided for the application of Muslim customs and Islamic religious law to Greek nationals of Muslim faith....

Owing to the application of Muslim inheritance law to her husband’s estate – which law in Greece applied specifically to Greeks of Muslim faith – Ms Molla Sali had been deprived of the benefit of the will drawn up in accordance with the Civil Code by her husband, and had therefore been deprived of three-quarters of the inheritance. The fact is that if her husband, the testator, had not been of Muslim faith, Ms Molla Sali would have inherited the whole estate. As the beneficiary of a will drawn up under the Civil Code by a testator of Muslim faith, Ms Molla Sali had therefore been in a situation comparable to that of a beneficiary of a will established under the Civil Code by a testator who was not of Muslim faith, but she had been treated differently on the grounds of the testator’s religion.

EEOC Moving Toward Insufficient Members For Quorum

National Law Journal yesterday reported that the Equal Employment Opportunity Commission is moving toward a scenario in which it will not have a quorum. Currently the 5-member Commission has two vacancies. Also Chair Chai Feldblum's current term is drawing to an end.  Feldblum's renomination and nominations for the two vacant positions have been pending in the Senate for months.  Utah Senator Mike Lee has blocked a vote on Feldblum's renomination because he opposes her advocacy of LGBTQ rights. Meanwhile, Daniel Gade, a nominee for one of the other vacancies says he has withdrawn and accepted another position, though his nomination is still listed on the Senate's executive calendar.

Court Orders Church To Allow Federal Surveyors On Its Property

A federal judge in the Southern District of Texas yesterday ordered attorneys for the Pharr Oratory of St. Philip Neri-- a congregation of priests that owns 26 acres near the U.S. Mexican border-- to allow government surveyors access to their land so surveys for a border wall could be conducted.  According to the Mission, Texas Progress Times, the Bishop of Brownsville had argued that using church property to build a border wall would limit the ability of the Church to carry out its mission. Federal Judge Randy Crane however rejected the Church's argument that allowing surveyors on the property would constitute a substantial burden of free exercise rights. The court ordered the parties to negotiate terms for reasonable access to the property.