Texas County Republicans Keep Muslim Doctor As Vice Chairman

Texas Tribune reports that the precinct chairs of the Tarrant County, Texas Republican Party last night rejected by a vote of 139-49 an attempt to remove trauma surgeon Shahid Shafi as vice-chairman of the county Republican Party. A small faction had attempted to remove Shafi because he is a Muslim.  They argued that he did not represent all Tarrant County Republicans because he is a Muslim, and that Islamic ideologies are opposed to the U.S. Constitution.  A former county precinct chair had sat outside the meeting wearing a burqa which, she said, represented "the Islamization of our county, our state and our country."  Shafi's defenders say the vote for religious liberty.

Supreme Court Grants Cert. In Title VII Religious Discrimination Jurisdictional Case

The U.S. Supreme Court today granted review on a procedural issue in a Title VII religious discrimination case--  Fort Bend County, Texas v. Davis, (Docket No. 18-525, certiorari granted, 1/11/2019). (Order List). In the case, the U.S. 5th Circuit Court of Appeals held that the the requirement that a person exhaust administrative remedies before bringing a Title VII action is not jurisdictional.  This meant that the county's delay in raising the defense of exhaustion could result in its forfeiting its right to raise the defense. (See prior posting.) Here is SCOTUSblog's case page giving links to the filings with the Supreme Court in the case.

Synagogue Wins $2.5M Settlement For RLUIPA Violations

JNS reported this week that a New Jersey synagogue has won a $2.5 million settlement in a mediation proceeding against the town of Clifton, New Jersey. The synagogue claims that Clifton violated the Religious Land Use and Institutionalized Persons Act by creating over ten years of delays in approving construction of a building for Shomrei Torah congregation.  According to one of the synagogue's attorneys:

Shomrei Torah had been commanded to appear before the Planning Board 25 times between March 2013 and October 2015, and before the zoning board seven times between November 2008 and January 2013. They had to appear in state court four times.

The settlement terms, reached in December, were made public on Jan. 3. [Thanks to Steven H. Sholk for the lead.]

Mormon Church Sued In Tribal Court Over Abuse of Student

AP reports on a lawsuit filed Tuesday against the Mormon Church in a Navajo Tribal Court. Plaintiff, identified only as LB, was part of the Mormon Church's Indian Student Placement Program which began in the 1940's and was designed to give educational opportunities to Native American children.  LB alleges that he was sexually molested three times in the 1980's by a Church bishop who lived across the street from the foster family with whom LB had been placed.  The suit seeks damages for failure to supervise participants in the program and for failing to report the abuse to authorities or to the victim's family.  The Church has contended that Tribal Courts lack jurisdiction over the lawsuit.

NYT Explores Implications of Fetal Personhood

The New York Times has posted an 8-part series on the legal and societal implications of fetal personhood. In an introduction to the series, Times editors write in part:

The creation of the legal scaffolding for the idea that the fetus is a person has been the steady work of the anti-abortion movement, at the national level and in every state. Today, at least 38 states and the federal government have so-called fetal homicide laws, which treat the fetus as a potential crime victim separate and apart from the woman who carries it.

The movement has pressed for dozens of other measures to at least implicitly affirm the idea that a fetus is a person, such as laws to issue birth certificates for stillborn fetuses or deny pregnant women the freedom to make end-of-life decisions for themselves. Some of these laws are also intended to create a basis for challenging and eventually overturning Roe.

In the hands of zealous prosecutors, cautious doctors and litigious attorneys, these laws are creating a system of social control that polices pregnancy, as the editorials in this series show. Because of the newly fortified conservative majority on the Supreme Court, such laws are likely to multiply — and the control to become more pervasive — whether or not Roe is overturned.

In the concluding part of the series, Times editors opine:

A society that embraces a legal concept of fetal personhood would necessarily compromise existing ideals of individual freedom. Americans — even many who oppose abortion — have not considered the startling implications of this idea, even as it has steadily gained strength in the law and in social norms. If a fetus is granted equal rights, women who become pregnant may find their most personal decisions coming under state control.

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.