Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Tuesday, February 19, 2019
Supreme Court Review Denied In Nuns' Pipeline Challenge
The U.S. Supreme Court today denied certiorari in Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, (Docket No. 18-548, certiorari denied 2/192019) (Order List). In the case, the U.S. 3rd Circuit Court of Appeals dismissed on procedural grounds a Religious Freedom Restoration Act challenge to FERC's approval of a pipeline project. The natural gas pipeline at issue runs through land owned by an order of Catholic nuns whose religious beliefs require them to preserve the earth. Developers were authorized to acquire land for the pipeline by eminent domain. (See prior posting.)
Labels:
Catholic,
RFRA,
US Supreme Court
Cert. Denied In Attempt To Subpoena Bishops' Documents
The U.S. Supreme Court today denied review in Whole Woman's Health v. Texas Catholic Conference of Bishops, (Docket No. 18-622, certiorari denied 2/19/2019) (Order List). In the case, the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, held that a Texas federal district court should have quashed a document discovery order in a case in which several health care providers challenged the state's fetal remains regulations. (See prior posting). While discussing the Bishops' constitutional claim that internal deliberations of religious organizations should be protected, the 5th Circuit ultimately relied on Federal Rules of Civil Procedure 45(d) which calls for quashing a subpoena when it imposes an undue burden. Becket issued a press release discussing the Supreme Court's denial of certiorari.
Labels:
Abortion,
Catholic,
Judiciary,
Texas,
US Supreme Court
Rastafarian Minister's Trespass Arrest did Not Violate His Free Exercise Rights
In Brown v. Jordan, (WD AR, Feb. 14, 2019), a Rastafarian minister sued over his arrest that grew out of his picketing for passage of a medical marijuana issue on the 2016 Arkansas ballot. The court rejected his claim that his arrest violated his free exercise rights, saying in part:
In this case, Plaintiff was advocating for the passage of the Medical Marijuana Act. While the Act's passage would, in his view, pave the way for his church to lawfully use marijuana in its ceremonies, his advocacy did not itself involve his exercise of a religious belief. Furthermore, the officers who arrested him appeared at the Flash Market in response to a claim that Plaintiff was trespassing, as he had remained on the Flash Market property after having been asked to leave and was bothering the customers. No action the officers took on October 16, 2016 inhibited Plaintiff from practicing or exercising his religious beliefs. Therefore, no free exercise claim is stated, and this claim is dismissed.
Labels:
Arkansas,
Cannabis,
Free exercise,
Rastafarian
Monday, February 18, 2019
Recent Prisoner Free Exercise Cases
In Timmons v. Polley, 2019 U.S. Dist. LEXIS 14533 (D NV, Jan. 29, 2019), a Nevada federal district court allowed a Muslim inmate to move ahead with complaints regarding inadequate Halal food during Ramadan, and refusal of permission to attend Jumah services and receive certain religious material.
In McKinney v. County of Imperial, 2019 U.S. Dist. LEXIS 14927 (CD CA, Jan. 30, 2019), a California federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 14927, Jan. 3, 2019) and dismissed, with leave to amend, a Jewish inmate's claim for damages for denial of kosher meals.
In Sassi v. Dutchess County, 2019 U.S. Dist. LEXIS 15387 (ND NY, Jan. 23, 2019), a New York federal district court allowed a Catholic inmate to move ahead with his complaint that he was denied a Bible for several days, but dismissed his complaint regarding inability to attend Bible study groups.
In Hardy v. Agee, 2019 U.S. Dist. LEXIS 15093 (WD MI, Jan. 31, 2019), a Michigan federal district court, in a case on remand from the 6th Circuit, adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 220438, Dec. 11, 2018) and dismissed a Muslim inmate's complaint that he was not allowed for a period of time to attend religious services, and was not allowed to attend Taleem (study sessions) while on room restriction for refusing a work assignment.
In Dykes v. Benson, 2019 U.S. Dist. LEXIS 15990 (WD MI, Feb. 1, 2019), a Michigan federal district court allowed an inmate to move ahead with his complaint that he could not access his Koran for the first two weeks in segregation.
In McKinney v. County of Imperial, 2019 U.S. Dist. LEXIS 14927 (CD CA, Jan. 30, 2019), a California federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 14927, Jan. 3, 2019) and dismissed, with leave to amend, a Jewish inmate's claim for damages for denial of kosher meals.
In Sassi v. Dutchess County, 2019 U.S. Dist. LEXIS 15387 (ND NY, Jan. 23, 2019), a New York federal district court allowed a Catholic inmate to move ahead with his complaint that he was denied a Bible for several days, but dismissed his complaint regarding inability to attend Bible study groups.
In Hardy v. Agee, 2019 U.S. Dist. LEXIS 15093 (WD MI, Jan. 31, 2019), a Michigan federal district court, in a case on remand from the 6th Circuit, adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 220438, Dec. 11, 2018) and dismissed a Muslim inmate's complaint that he was not allowed for a period of time to attend religious services, and was not allowed to attend Taleem (study sessions) while on room restriction for refusing a work assignment.
In Dykes v. Benson, 2019 U.S. Dist. LEXIS 15990 (WD MI, Feb. 1, 2019), a Michigan federal district court allowed an inmate to move ahead with his complaint that he could not access his Koran for the first two weeks in segregation.
Labels:
Prisoner cases
Recent Articles of Interest
From SSRN:
- Michael S. McGinniss, Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession, (Harvard Journal of Law and Public Policy, Forthcoming).
- Robert C. Blitt, The Organization of Islamic Cooperation's (OIC) Response to Sexual Orientation and Gender Identity Rights: A Challenge to Equality and Nondiscrimination Under International Law, (28.1 Transnational Law & Contemporary Problems 89 (2019)).
- Nathan S. Chapman, Money for Missionaries: Rethinking Establishment Clause History, (University of Georgia School of Law Legal Studies Research Paper No. 2019-10 (2019).
- Dr. Krishnan Mani, Religious Militant Extremism in Pakistan: Security Threat to South Asian Region and Challenges, (February 11, 2019).
- Shahbaz Ahmad Cheema, Islamization of Restitution of Conjugal Rights by Federal Shariat Court of Pakistan: A Critique, (February 5, 2019).
From SmartCILP and elsewhere:
- Mark Fathi Massoud, How an Islamic State Rejected Islamic Law, 66 American Journal of Comparative Law 579-602 (2018).
- Ferdaouis Bagga, Central Nigeria: Overcoming Dangerous Speech and Endemic Religious Divides, (U.S. Commission on International Religious Freedom, Feb. 2019).
Labels:
Articles of interest
Sunday, February 17, 2019
Former Cardinal McCarrick Defrocked By Vatican Over Sex Abuse
In the Vatican yesterday, the Congregation for the Doctrine of the Faith issued a statement (full text) announcing that former Cardinal Theodore McCarrick has been "dismiss[ed] from the clerical state," i.e. defrocked. McCarrick had already resigned from the College of Cardinals over allegations of past sexual misconduct. In laicizing McCarrick, the Congregation for the Doctrine of the Faith found him guilty of "solicitation in the Sacrament of Confession, and sins against the Sixth Commandment with minors and with adults, with the aggravating factor of the abuse of power." Vatican News reported on the action against McCarrick. An analysis of the news Crux says in part:
The four dioceses in the U.S. in which McCarrick served over the course of his long career - New York; Metuchen, New Jersey; Newark; and Washington, D.C., are all conducting separate investigations, a result of the fact that a request by the leadership of the U.S. bishops’ conference for a Vatican-sponsored apostolic investigation was turned down by Francis.
Labels:
Clergy,
Sex abuse claims,
Vatican
Suit Challenges Religious Requirements Permitted In South Carolina Faith-Based Foster-Care Agencies
A lawsuit was filed Friday by Americans United for Separation of Church and State on behalf of a Catholic woman challenging actions by the federal government and the state of South Carolina that permit foster-care placement agencies to use religious criteria for approval of foster care families. The complaint (full text) in Maddonna v. U.S. Department of Health and Human Services, (D SC, filed 2/15/2019) challenges the waiver from the religious discrimination ban in federally funded foster-care programs that the Department of Health and Human Services granted to the state of South Carolina last month. (See prior posting.) It also challenges a March 13, 2018 executive order by the Governor of South Carolina (Executive Order 2018-12) permitting licensed faith-based foster-care child-placement agencies to limit recruitment and training of foster parents to those who share the same faith as the agency. Plaintiff in the case, Aimee Maddonna, was refused participation in a foster care volunteer program by Miracle Hill Ministries because Miracle Hill required participants to be born-again Christians who belong to a Protestant church. The suit alleges Establishment Clause, equal protection and due process violations. AP reports on the lawsuit.
Friday, February 15, 2019
Death Qualification of Jurors Does Not Violate RFRA
In United States v. Ofomata, (ED LA, Feb. 11, 2019), a Louisiana federal district court rejected a number of challenges to the federal death penalty, including the argument that the death-qualification process violates the Religious Freedom Restoration Act and the First Amendment by necessarily excluding jurors based on their religion. The court said in part:
Even assuming that Ofomata was able to show that the death-qualification process constitutes a substantial burden, his RFRA claim fails because “[t]he question [of] whether a juror is able to follow the law and apply the facts in an impartial way . . . is a compelling government interest.”
Labels:
Capital punishment,
RFRA
2nd Circuit Denies En Banc Review In RFRA Damages Case
In Tanvir v. Tanzin, the U.S. 2nd Circuit Court of Appeals by a vote of 7-3 denied en banc review of a panel decision that held RFRA plaintiffs could recover money damages against federal officials sued in their individual capacities. (See prior posting.) Plaintiffs in the lawsuit are three Muslim men who claim that federal officials placed or kept them on the no-fly list because they refused for religious reasons to act as FBI informants. In denying en banc review, Chief Judge Katzmann and Judge Pooler filed an opinion explaining their reasons for doing so. Judge Jacobs, joined by Judges Cabranes and Sullivan filed an opinion dissenting from the denial of review.
Court Refuses To Enjoin Florida Cities' Conversion Therapy Bans
In Otto v. City of Boca Raton, Florida, (SD FL, Feb. 13, 2019), a Florida federal district court refused to grant a preliminary injunction to prevent the cities of Boca Raton and Palm Beach, Florida from enforcing their ordinances that prohibit the use by medical professionals of sexual orientation change therapy on minors. In a 60-page opinion, the court held that plaintiffs are unlikely to succeed on their free speech, prior restraint, vagueness or ultra vires claims.
Labels:
Conversion therapy,
Florida
Thursday, February 14, 2019
New Jersey Dioceses Release Names of Accused Priests
North Jersey Record reports that the five Catholic dioceses in New Jersey yesterday posted the names of 188 priests who have been credibly accused of sexually abusing children over past decades.79 of the priests listed are still living. In a letter to the faithful of the Archdiocese of Newark, Cardinal James Tobin announced that a new Independent Victim Compensation Program has been established.
Labels:
Catholic,
New Jersey,
Sex abuse claims
British Court Upholds Conviction For Holocaust Denial On YouTube
In Chabloz v. Regina, (Crown Ct., Feb. 13, 2019), s British Crown Court upheld the conviction of a Holocaust denier on three counts of sending a grossly offensive message by means of an electronic communication. The decision upholds a Magistrates' Court conviction of Alsion Chabloz for three songs posted on Your Tube.The court held that Holocaust denial per se is not outlawed. Rather, each instance of Holocaust denial must be examined to determine if it is grossly offensive. The court describes each song as
a collection of anti-Semitic tropes or motifs, with a particular emphasis on Holocaust denial. Furthermore, two of the songs are in whole or part set to the tunes of well-known Hebrew songs, which the prosecution says is no accident, bu rather a deliberate attempt to increase the insulting effect of each.The Campaign Against Antisemitism reports that this is the first conviction in the UK for Holocaust denial on social media.
Labels:
Antisemitism,
Britain,
Social Media
Satanic Temple Adherent Loses Challenge To Missouri Abortion Restrictions
In Doe v. Parson, (MO Sup, Ct., Feb. 13, 2019), the Missouri Supreme Court rejected a challenge by a member of the Satanic Temple to the state's informed consent abortion law. Rejecting both an Establishment Clause and a religious freedom challenge, the court said in part:
Ms. Doe alleges by offering her a booklet containing what she refers to as legislative findings constituting the “Missouri tenet,” Missouri is violating her religious beliefs by forcing her to read the contrary religious belief contained in the booklet. But the informed consent law does not purport to make any sort of legislative findings. It simply requires the noted statements be included in a booklet offered to a woman seeking an abortion. § 188.027....
This Court need not determine whether requiring Ms. Doe to have an ultrasound, to listen to the fetal heartbeat, or to read the booklet offered by Planned Parenthood would have constituted a restriction on her religious freedom, for the statute imposes no such requirements. Nothing in the informed consent law requires a woman seeking an abortion to have an ultrasound, much less to pay for the ultrasound or to listen to the fetal heartbeat. The informed consent law solely requires an abortion provider or another qualified professional to present a woman seeking an abortion with the opportunity to have or to view an ultrasound and, if she chooses to have one, an opportunity to listen to the heartbeat. Ms. Doe and any other woman is free to decline both opportunities.Two justices also joined in concurring opinion. St. Louis Public Radio reports on the decision.
Labels:
Abortion,
Missouri,
Satanic Temple
Wednesday, February 13, 2019
Cert Filed In Puerto Rico Catholic School Pension Case
A petition for certiorari (full text) was filed last month in Roman Catholic Archdiocese of San Juan Puerto Rico v. Feliciano (filed 1/14/2019). At issue is whether Puerto Rico courts can get to the assets of numerous related Catholic entities in Puerto Rico to satisfy pension obligations to Catholic school employees,The petition describes the question presented as:
Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability.The petition contains a translation of the opinion below rendered by the Puerto Rico Supreme Court.
Labels:
Catholic schools,
Puerto Rico
Tuesday, February 12, 2019
Curriculum On Muslim World Does Not Violate 1st Amendment
In Wood v, Arnold, (4th Cir., Feb. 11, 2019), the U.S. 4th Circuit Court of Appeals rejected a high school student's Establishment Clause and free speech challenges to portions of classroom unit on The Muslim World. One challenge was to the teacher's Power Point slide that included the statement that most Muslims' faith is stronger than that of the average Christian. The other challenge was to the requirement on a work sheet for the student to fill in two words of the shahada. The court said in part:
The use of both the comparative faith statement and the shahada assignment in Wood’s world history class involved no more than having the class read, discuss, and think about Islam. The comparative faith statement appeared on a slide under the heading “Peaceful Islam v. Radical Fundamental Islam.” The slide itself did not advocate any belief system but instead focused on the development of Islamic fundamentalism as a political force. And the shahada assignment appeared on the student worksheet under the heading “Beliefs and Practices: The Five Pillars.” Thus, the assignment asked the students to identify the tenets of Islam, but did not suggest that a student should adopt those beliefs as her own.Rejecting the student's compelled speech argument, the court said in part:
[T]he shahada assignment required Wood to write only two words of the shahada as an academic exercise to demonstrate her understanding of the world history curriculum. On these facts, we conclude that Wood’s First Amendment right against compelled speech was not violated.[Thanks to Will Esser via Religionlaw for the lead.]
Labels:
Establishment Clause,
Free speech,
Muslim,
Religion in schools
Monday, February 11, 2019
Recent Articles and Book of Interest
From SSRN:
- Puranjay K. Vedi, Working Paper: Muslims, Their Identity and Discontent in India, (October 1, 2018).
- Puranjay K. Vedi, Working Paper: Decoding Anandpur Sahib Resolution, (November 19, 2018).
- Puranjay K. Vedi, Working Paper: A Brief Introduction to Old Russia, (November 19, 2018).
- Kathryn Chan & Howard Kislowicz, Divine Intervention, Part I: A Study of the Operation and Impact of Non-Governmental Interveners in Canadian Religious Freedom Litigation, ((2019) 90 SCLR (2d) Forthcoming).
- Ronald James Krotoszynski, 'The Devil Is in the Details': On the Central Importance of Distinguishing the Truly Public from the Truly Private in Reconciling Equality and Religious Liberty, (Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William N. Eskridge, Jr. & Robin Fretwell Wilson, eds., Cambridge University Press 2018) (Chapter 7)),
- Howard Kislowicz & Senwung Luk, Recontextualizing Ktunaxa Nation v. British Columbia: Crown Land, History and Indigenous Religious Freedom, ((2019) 88 S.C.L.R. (2d) 205-229).
- Lonen Titia, In Search of An EU Approach to Headscarf Bans: Where to Go after Achbita and Bougnaoui?, (Review of European Administrative Law; Vol. 10, Nr. 2, 47-73 (2017).
- Gautam Bhatia, Caste and the Law (January 30, 2019).
From SmartCILP:
- Jamal Greene, Rights As Trumps? 132 Harvard Law Review 28-132 (2018).
- John Medeiros & Philip Steger, Sanctuary and Harboring in Trump's America. 44 Mitchell Hamline Law Review 869-906 (2018).
- James A. Sonne, Cross-Cultural Lawyering and Religion: A Clinical Perspective, 25 Clinical Law Review 223-268 (2018).
Recent Book:
- Douglas Laycock, Religious Liberty (set of 5 volumes), (Wm. B. Eerdmans Publishing Co, Nov. 2018).
Labels:
Articles of interest,
Books of interest
Sunday, February 10, 2019
Immunization Order Did Not Violate Mother's Free Exercise Rights
In In re Julie C.and Anthony Price, 2019 Cal. App. Unpub. LEXIS 935 (CA App., Feb. 6, 2019), a California state appellate court held that a wife's free exercise rights were not violated by a court order in a divorce proceeding requiring immunization of her children. In 2016, California repealed the personal belief exemption from immunization requirements for school children. The court ordered the immunizations on motion of the husband, finding that immunization was in the best interest of the children. (Corrected. Earlier version referred to wrong court).
Labels:
California,
Vaccination
Friday, February 08, 2019
House Dust Up Over Absence of "So Help Me God" In Oaths By Committee Witnesses
USA Today reported yesterday that Republican Louisiana Congressman Mike Johnson, new chairman of the Republican Study Committee, as well as some other Republicans, are charging that Democrats in the House are making a concerted effort to eliminate the phrase "so hep me God" when they administer oaths to committee witnesses. The charges come after incidents in the House Judiciary Committee and House Natural Resources Committee. [Thanks to Scott Mange for the lead.]
Labels:
Oaths,
U.S. House of Representatives
4th Circuit Allows Church To Move Ahead With Challenges To Zoning Denial
In Jesus Christ Is the Answer Ministries, Inc. v. Baltimore County, Maryland, (4th Cir., Feb. 7, 2019), the U.S. 4th Circuit Court of Appeals, reversing a Maryland federal district court, refused to dismiss a church's complaint regarding zoning denials that prevented it from operating a church on land that its pastor had purchased. The court held that plaintiffs had sufficiently alleged a substantial burden on their religious practice and discrimination based on religious denomination under RLUIPA. The court said in part:
Particularly relevant to this case, a government decision influenced by community members’ religious bias is unlawful, even if the government decisionmakers display no bias themselves.The court also vacated the lower court's dismissal of plaintiffs' free exercise, equal protection and state constitutional claims. [Thanks to Will Wsser via Religionlaw for the lead.]
Supreme Court Keeps Injunction Against Louisiana Abortion Law In Effect
In June Medical Services, L.L.C. v. Gee, (US Sup. Ct. Feb. 7, 2019), a case involving Louisiana's new abortion law, the U.S. Supreme Court by a 5-4 vote prevented the law from going into effect pending the filing of a petition for certiorari. A 5th Circuit Court of Appeals decision had stayed a district court's injunction against the law. Now the Supreme Court has stayed the 5th Circuit's action. At issue is a facial challenge to Louisiana's law that requires doctors at abortion clinics to have admitting privileges at nearby hospitals. Challengers had argued that this would leave only one abortion clinic operating in the state. In allowing the law to go into effect, the 5th Circuit questioned that conclusion. In the Supreme Court, Justices Thomas, Alito, Gorsuch and Kavanaugh would have denied the application so that the law could take effect. Justice Gorsuch, writing only for himself, filed an opinion saying that:
I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period if the Fifth Circuit’s factual prediction about the doctors’ ability to obtain admitting privileges proves to be inaccurate.NBC News reports on the decision.
Labels:
Abortion,
Louisiana,
US Supreme Court
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