Suit Challenges School Limits on Flyer Distribution For Bible Event

A suit was filed this week in a California federal district court against the Huntington Beach School District for barring a 2nd and a 5th-grade student from handing out flyers promoting Focus on the Family's "Bring Your Bible to School Day."  The complaint (full text) in M.B. v. Huntington Beach City School District, (CD CA, filed 1/7/2019),  contends that plaintiffs' free speech, free exercise, equal protection and due process rights were infringed by not allowing them to distribute the flyers at lunch, recess and other non-instructional times during the school day. School officials limited the distribution to before- and after-school hours. OC Weekly reports on the lawsuit.

NY Quaker Marriage Provision Cannot Be Limited To Quakers

In N.B. v. F.W., (NY County Sup Ct, Jan. 4, 2019), a New York state trial court rejected a husband's argument in a divorce proceeding that no valid marriage existed between the parties. The couple, who lived in New York throughout their 13-year purported marriage, had obtained a "self-uniting" marriage license from Pennsylvania and had a wedding ceremony in France at which the couple solemnized their own marriage in the presence of two witnesses and guests. The wife argued, among other things, that the marriage was valid under New York Domestic Relations Law Sec. 12 which recognizes self-uniting ceremonies among Friends or Quakers if solemnized in the manner practiced by their societies. In response, the husband argued that neither party to the marriage was a member of the Friends or Quakers.  The court responded:

The court's ability to hold the marriage as valid or invalid may not, however, depend on the parties' religious affiliation to members of the Friends or Quakers, or on the parties' level of religious observance. To hold otherwise would violate the First Amendment....

The court cannot deny a benefit or right to a person for not following any particular religious practice. To do so would violate the Establishment Clause. Lee v. Weisman, 505 U.S. 577, 596 (1992). Husband's argument would prefer religiously observant Quakers over individuals such as the parties here (or vice-versa, since Husband is seeking to "free" himself from a finding of a valid marriage that would have attached to him if he were religiously observant, under his argument).

NYT Editorializes On Ritual Slaughter Restrictions

The New York Times editorial board today stepped into the debate in some European countries over kosher and halal slaughter, as a law in the Flemish Region of Belgium banning slaughter without first stunning of animals takes effect. (See prior posting.)  The Times says in part:

Right-wing politicians in several countries have used controls on such religious practices to press bigoted agendas under the cloak of battling for civil or animal rights....

The pretexts of some politicians does not mean all those who insist on stunning have dubious motives. Animal-rights activists have long campaigned, justifiably and successfully, for the humane treatment of animals destined for the table. Many earnestly believe that slashing the neck of a conscious animal causes more suffering than stunning the animal first....

But those who really care about the welfare of animals should be wary of making common cause with right-wing nationalists whose hostile intent is to make life more difficult for religious minorities. A real conversation on balancing animal rights and religious freedoms can take place only if it is free of hidden bigotry.

Suit Challenges Restrictions On Sharing Food With the Hungry

A suit was filed yesterday in a Missouri federal district court claiming that St. Louis' Temporary Food Service Ordinance is unconstitutional as applied to restrict the non-commercial sharing of food with the hungry.  The complaint (full text) in Redlich v. City of  St. Louis, (ED MO, filed 1/8/2019) pits a pastor and another Christian man who believe they have a religious obligation to feed the hungry against city enforcement officials.  It alleges in part:

Plaintiffs contend that as applied to them and to others similarly situated the Temporary Food Service Ordinance unconstitutionally and unlawfully restricts their free exercise of religion, their freedom of expression, their freedom of association, their rights of conscience, and denies them equal protection of the laws.

St. Louis Public Radio reports on the lawsuit.

Chicago Church Drops Defamation Suit

RNS reports that the Chicago-area megachurch Harvest Bible Chapel will drop a defamation lawsuit it had filed against a former teacher at the church's school and a former church member who have posted criticism of the church's founding pastor on their blog.  The move comes after a Cook County trial court refused to enjoin the online publicizing of documents that would be produced during discovery in the case.  In a statement posted on its website, the church said in part:

... [T]he court appears unwilling to protect our many friends, including those with whom we seek to reconcile. In good conscience we cannot knowingly subject innocent people, in many instances against their will, to a full subpoena process.

Surely the Lord could have caused the court to rule in our favor.... We receive these outcomes as God’s direction and have instructed our legal counsel to drop the suit entirely. With this decision, we can again focus our energies on continued growth in personal and organizational faults we have owned, enduring what is false, and striving to mitigate the damage such attacks bring to our church family and friends.

USCIRF Suggests Standards For Registration of Religious Groups

The U.S. Commission on International Religious Freedom this week issued a Legislative Factsheet on Registration Laws for religious groups.  It sets out seven standards necessary for registration laws to protect religious freedom:

• Registration of religious groups cannot be mandatory: Registration can only be required to confer legal personality and must not be compulsory in order to practice religion....
• Legislation cannot contain undue restrictions or other bureaucratic burdens that hinder access to legal personality....
• Requirements for registration must be precise and defined....
• Registration laws must be non-discriminatory....
• Religious organizations must be carefully defined....  religion and belief must be construed broadly and include both traditional and non-traditional religions and beliefs, including both theistic and non-theistic beliefs....
• Registration requirements cannot be onerous or invasive....
• There must be avenues for appealing denials...

Colorado Bakery Can Move Ahead With Suit Over Non-Discrimination Laws

In Masterpiece Cakeshop Inc. v. Elenis, (D CO, Jan. 4, 2018), a Colorado federal district court held that the owner of a Colorado bakery may move ahead with his suit seeking injunctive relief against enforcement of the state's anti-discrimination laws. However the court dismissed plaintiffs' damage claims on immunity grounds.  Plaintiff Jack Phillips won a U.S. Supreme Court victory last year when the Supreme Court held that the Colorado Civil Rights Commission showed impermissible hostility toward his religious objections to designing a cake for a same-sex wedding ceremony.  While that case was pending, a different customer sought a cake to celebrate her gender transition. Phillips refused to make the cake that conveyed a message in conflict with his religious belief that gender is immutable. The Commission again issued a probable cause determination and the state filed a formal complaint against Phillips. In response Phillips filed this suit claiming that the Division's bullying of him violates his free exercise, free speech, due process and equal protection rights. Catholic News Agency reports on the decision.

Recent Articles of Interest

From SSRN:

• Mary Case, Trans Formations in the Vatican's War on 'Gender Ideology', (44 Signs: Journal of Women in Culture and Society __ (2019, Forthcoming)).
• Sam Bookman, Book Review: Freedom of Religious Organizations by Jane Calderwood Norton,  ((2017) 23 Auckland U L Rev.).
• Perry Dane, Robert Cover and Legal Pluralism, (December 18, 2018).
• Suman Acharya, Jurisprudence of Law and State; An Experience of Nepal ,(December 12, 2018).
• James Loeffler, 'A Certain Kind of Liberalism': Jewish Minority Rights in Eastern Europe and Beyond, 1848-1948, (Jews, Liberalism, Antisemitism: A New History, eds. Abigail Green and Simon Levis Sullam (Indiana University Press, Forthcoming)).
• Is Secularism a Non-Negotiable Aspect of Liberal Constitutionalism?, Articles by Frank S. Ravitch, Alan Brownstein, Gabor Halmai, Bruce Ledewitz, Yaniv Roznai, Jaclyn L. Neo. 2017 Michigan State Law Review 149-370.
• Giancarlo Anello, Europe and the Ummah: A Legal Inquiry on the Condition of the Muslim Community in a Transforming Continent, (November 16, 2018).
• Kyriaki Topidi, The Culturalization of Religion and the Pursuit of Diversity: Co-Existence within Difference in South Africa, (Christa Rautenbach (ed.), In the Shade of an African Baobab: Tom Bennett’s Legacy, Juta Publishers, pp. 106- 122, 2018).
• Shivaraj Huchhanavar, Introduction to Natural Justice, (September 8, 2018).
• Islam Abdel Magid, Gender Equality: Islamic Law and Legal Validity, (Magalãt Al-Dȋmouqraţyah, 2018).
• Wiliam Echikson & Olivia Knodt, Germany’s NetzDG: A Key Test for Combatting Online Hate, (CEPS Policy Insight, 2018).
• John Picton, Donor Intention and Dialectic Legal Policy Frames, (Research Handbook on Not-for Profit Law, Edward Elgar, 2018).

Religious Makeup of New 116th Congress

Pew Forum reports on the religious make up of the new 116th Congress, saying:

There has been a 3-percentage-point decline in the share of members of Congress who identify as Christian – in the 115th Congress, 91% of members were Christian, while in the 116th, 88% are Christian. There are also four more Jewish members, one additional Muslim and one more Unitarian Universalist in the new Congress – as well as eight more members who decline to state their religious affiliation (or lack thereof).

While the number of self-identified Christians in Congress has ticked down, Christians as a whole – and especially Protestants and Catholics – are still overrepresented in proportion to their share in the general public. Indeed, the religious makeup of the new, 116th Congress is very different from that of the United States population.

The full report gives numbers and percentages for the various faith groups, including various Protestant denominations. [Thanks to Scott Mange for the lead.]

Establishment Clause Challenge To Drag Queen Storytime Dismissed

In Christopher v. Lawson, (SD TX, Jan. 3, 2018), a Texas federal district court dismissed a lawsuit that claimed the Houston Public Library's "Drag Queen Storytime" violates the Establishment Clause. Plaintiffs claimed that the program promotes secular humanism over other religions, including Christianity,  The court first held that plaintiffs lack standing. Because they avoided the event to protect their children, they suffered no harm.  The court held that they also lack taxpayer standing.  The court went on to find that even if plaintiffs had standing, they failed to show an Establishment Clause violation, saying in part:

Here, the plaintiffs argue that “Drag Queen Storytime” is a religious event because of an alleged connection between “Drag Queen Storytime,” the LGBTQ community, and secular humanism.... [E]ven accepting that secular humanism could be a religion for Establishment Clause purposes, the plaintiffs fail to allege any facts or basis showing that “Drag Queen Storytime” is a religious activity. There is no allegation that a reader discussed secular humanism at the event, or that any story the Library selected invoked secular humanism or any religion at all. The plaintiffs instead make only conclusory statements associating secular humanism with the event.

Houston Chronicle reports on the decision,

Two Muslim Women To Be Sworn In As Members of Congress Today

As the Democrats take control of the House of Representatives today, they will pass a new rules package that includes a provision allowing religious headgear to be worn on the floor of the House.  As reported by ABC radio, this will overturn a nearly 200-year old ban on wearing hats on the House floor. The rule change will allow newly-elected Rep. Ilhan Omar from Minnesota, a Muslim woman, to wear her hijab. Meanwhile, CNN reports more broadly in a piece by Rafia Zakaria:

On January 3, 2019, not one but two Muslim American women will be sworn into Congress. Taking the oath on a Quran that belonged to Thomas Jefferson, Ilhan Omar and Rashida Tlaib will become the first Muslim-American women to serve in the House of Representatives.

Their swearing in will be a historic milestone for the country, but it will be so much more than that for me. A black Somali-American woman who wears a headscarf and pokes fun at Islamophobes on Twitter, Omar crushes stereotypes of what a Muslim woman in a headscarf represents. As an unveiled Muslim American woman, Rashida Tlaib -- who will wear a Palestinian gown to her swearing in -- also dismantles the myth that all "real" Muslim women wear the headscarf.

7th Circuit Remands Prisoner's Attempt To Join Moorish Science Worship

In Neely-Bey v. Conley, (7th Cir., Jan. 2, 2019), the U.S. 7th Circuit Court of Appeals, in a 38-page opinion, remanded to an Indiana federal district court a suit by an inmate who claimed that his free exercise rights were infringed when prison authorities at Correctional Industrial Facility did not permit him to participate fully in worship services of the Moorish Science Temple of America. The court said in part:

Mr. Neely-Bey ... does not ask the CIF to accommodate a personal belief not required of MSTA adherents. Rather, he asks that the CIF require the MSTA to accept him as a full member even though his belief system as a declared sovereign citizen differs substantially from that of the MSTA and MSTA liturgical practices require that its adherents share their religious beliefs in the course of their worship services. The MSTA consequently believes that admitting Mr. Neely-Bey as a member would challenge its teachings and, possibly, jeopardize its status....

We therefore have no doubt that the prison officials are on solid ground in maintaining that they have a right, and indeed an obligation, to protect the right of other prisoners who adhere to the MSTA faith to worship in a congregational manner to the extent that such a practice is consistent with other penal objectives.

Of course, in asserting such an objective and in choosing a means to achieve such an objective, Turner v. Safley ...teaches that prison officials cannot rely on the mere incantation of a penal interest but must come forward with record evidence that substantiates that the interest is truly at risk and that prison officials have chosen an appropriate manner to assert that interest. Before us, the defendants justify their actions only in terms of the MSTA’s rights without any reference to the possible impact on the security, operations, or finances of the CIF. Under such circumstances, we cannot conclude that the defendants have articulated a legitimate “penological” reason for denying Mr. Neely-Bey full participation in MSTA’s Friday services.

The merits of Mr. Neely-Bey’s claim for injunctive relief therefore remain an open question. In considering this question, the district court should not only determine the propriety of injunctive relief under the Free Exercise Clause, but possible relief under RLUIPA.

Indiana Lawyer reports on the decision.

2018 Law and Religion Bibliography Now Available

The Association of American Law Schools Section on Law and Religion has published its Annual Bibliography.  The 21-page bibliography lists journal articles, special journal issues, monographs and edited volumes published in 2018 on law and religion topics.

Vatican's Delay of U.S. Bishops Proposals Explained

AP reports today that the surprising Vatican directive to U.S. bishops last November precluding them from discussing proposed standards of conduct for bishops (see prior posting) stemmed from the fact that the Vatican had received a draft of the proposals only 4 days before the U.S. bishops' conference began. According to AP's report on a letter from Vatican Cardinal Marc Oulett:

While [Conference of Bishops President Cardinal Daniel] DiNardo blamed the Vatican, the letter from Ouellet suggests that the Vatican thought DiNardo had tried to pull a fast one by intentionally withholding legally problematic texts until the last minute.

Split of Ukrainian Orthodox Church From Moscow Looms

The New York Times reported yesterday that in a move having significant political as well as religious significance, the Ukrainian Orthodox Church is about to formalize its separation from the Moscow-based Orthodox Patriarchate:

Intensifying a millennium-old religious struggle freighted with 21st-century geopolitical baggage, Ukraine’s security services have in recent weeks interrogated priests loyal to Moscow, searched church properties and enraged their Russian rivals....

The new Ukrainian church is expected to be granted legitimacy on Jan. 6, the eve of the Orthodox Christmas, when its newly elected head, Metropolitan Epiphanius, travels to Istanbul to receive an official charter from the Constantinople patriarchate, a longtime rival power center to Moscow.

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.