5th Circuit Upholds Direct Supervision Requirement For Muslim Inmate Worship Services

In Brown v. Scott, (5th Cir., July 5, 2019), the U.S. 5th Circuit Court of Appeals in a 2-1 decision (56 pages long) written by Judge Owen held that a 1977 consent decree allowing Muslim inmates to gather for worship without direct supervision should be vacated. While Muslim inmates had met with only indirect supervision from 1977 to 2012, that arrangement was terminated after a Jehovah's Witness inmate successfully sued arguing that the more favorable treatment of Muslim inmates violates the Establishment Clause. The termination of the special treatment for Muslim inmates, however, violated the earlier consent decree. This led prison officials to ask that the earlier decree be vacated under provisions of the Prison Litigation Reform Act that allow lifting of the injunction if it is no longer needed to correct an ongoing violation of rights.

Muslim inmates argued that requiring direct supervision of their services would impose a substantial burden in violation of the Religious Land Use and Institutionalized Persons Act. The majority held, however, that it is not prison authorities that have imposed a substantial burden, but instead it is caused by a lack of Muslim volunteers from outside who will supervise services. The majority also rejected Free Exercise and Establishment Clause arguments.

The district court had concluded that Texas prison regulations favor Catholic, Jewish, Native American and Protestant inmates over Muslim inmates.  Judge Owen concluded that this does not create an Establishment Clause violation because in the prison context the more lenient Turner v. Safley test should be applied to Establishment Clause claims.

Judge King joined all of Judge Owen's opinion except for the Establishment Clause section. She held there was an Establishment Clause violation, but that the 1977 consent decree should be vacated nevertheless because it is broader than necessary to remedy the violation.

Judge Dennis in a separate opinion dissented as to the RLUIPA issue, and would not have reached the Establishment Clause or Free Exercise claims

German Court Says Sikhs Not Exempt From Motorcycle Helmet Law

DW reports that Germany's Federal Administrative Court has ruled that religious freedom objections are not sufficient to exempt Sikhs from Germany's law requiring motorcyclists to wear helmets. According to DW:

The Federal Administrative Court in Leipzig rejected a Sikh man's appeal, who had argued that the helmet would not fit over his turban.

"People wearing a turban on religious grounds are not for that reason alone exempt from the obligation to wear a helmet," the presiding judge, Renate Philipp, said, adding that the claimant has to accept this restriction to his freedom of religion, as it serves to uphold the rights of others, too....

The Leipzig court argued that the obligation to wear a helmet not only protects the driver but also keeps other drivers from being traumatized if they cause heavy injury to someone driving without a helmet.

The court also said a driver wearing a helmet would be better placed to help others in case of an accident.

Tunisia Bans Niqab In Government Buildings

Tunisia's Prime Minister yesterday signed a government circular banning the niqab, which covers the entire face except for the eyes, from government  offices.  As reported by  France24, this comes as part of efforts to heighten security after a double suicide bombing last month. The government fears that the niqab will be used as a disguises for terrorists.

SCOTUS Amicus Briefs Supporting Title VII Coverage of LGBTQ Discrimination Now Available

As previously reported, on Oct. 8 the Supreme Court will hear oral arguments in three cases posing the question of whether Title VII of the 1964 Civil Rights Act prohibits discrimination on the basis of sexual orientation or gender identity. Wednesday was the deadline for amicus briefs supporting the parties asserting that Title VII bars such discrimination. More than 40 amicus briefs have been filed, and may be found through links to them on the SCOTUSblog case pages: here. here and here. Amicus briefs supporting the position of the employers in the cases are due Aug. 23.

VA Issues New Policies On Religious Literature and Symbols At VA Facilities

In a News Release issued Wednesday, the U.S. Department of Veterans Affairs announced a new directive on Religious Symbols in VA Facilities and amendments to its directive on Spiritual and Pastoral Care in the Veterans Health Administration. According to the VA:

The new policies will:

• Allow the inclusion in appropriate circumstances of religious content in publicly accessible displays at VA facilities.
• Allow patients and their guests to request and be provided religious literature, symbols and sacred texts during visits to VA chapels and during their treatment at VA.
• Allow VA to accept donations of religious literature, cards and symbols at its facilities and distribute them to VA patrons under appropriate circumstances or to a patron who requests them.

The Hill reports on the policy changes. Earlier this year, suit was filed yesterday in New Hampshire federal district court against a VA Medical Center challenging a lobby display that includes a Bible. (See prior posting.)

Britain's Appeals Court: Christian Social Work Student Improperly Suspended For Anti-Gay Facebook Postings

In Ngole v. University of Sheffield, (EWCA, July 3, 2019), England's Court of Appeal held that the University of Sheffield had unfairly removed a Christian student from its Master of Social Work program after the student posted his views on Facebook that homosexuality and same-sex marriage are sins.  The postings, in response to the jailing in 2015 of Kentucky court clerk Kim Davis for refusing to issue same-sex marriage licenses, appeared on MSNBC's Facebook page. The Court, ordering a new disciplinary hearing by the University, summarized its conclusions in part as follows:

(10) The University wrongly confused the expression of religious views with the notion of discrimination. The mere expression of views on theological grounds (e.g. that ‘homosexuality is a sin’) does not necessarily connote that the person expressing such views will discriminate on such grounds. In the present case, there was positive evidence to suggest that the Appellant had never discriminated on such grounds in the past and was not likely to do so in the future (because, as he explained, the Bible prohibited him from discriminating against anybody).

(11) The University gave different and confusing reasons for suspending the Appellant. Initially, it was said (by the Fitness to Practice Committee) that he lacked “insight” into how his NBC postings might affect his ability to carry out “his role as a social worker”; and subsequently it was said (by the Appeals Committee) that he lacked “insight” into how his NBC postings “may negatively affect the public’s view of the social work profession”. Further, at no stage during the process or the hearings did the University properly put either concern as to perception to the Appellant during the hearings.

(12) The University’s approach to sanction was, in any event, disproportionate: instead of exploring and imposing a lesser penalty, such as a warning, the University imposed the extreme penalty of dismissing the Appellant from his course, which was inappropriate in all the circumstances.

The Guardian reports on the decision.

9th Circuit En Banc Temporarily Reinstates Injunctions On Trump Administration Family Planning Rules

According to an AP report, the U.S. 9th Circuit Court of Appeals yesterday voted to vacate the 3-judge panel's decision in State of California v. Azar, and to grant en banc review of whether the Trump Administration's new regulations on family planning grants may go into effect. The new rules bar recipients of family planning grants under title X from referring clients for abortions. They also ban clinics that receive Title X funds from sharing office space with abortion providers.  Three district courts had enjoined implementation of the new rules, but a 3-judge panel of the 9th Circuit had granted a stay of the injunctions. (See prior posting.) Yesterday's action reinstates the district court injunctions while the full 9th Circuit considers the issue.

2nd Circuit Gives Broad Reading To Allow Late Filing of Asylum Application

Normally an application for asylum must be filed within one year of an alien's arrival in the United States. However, an application filed later than that may be considered if the alien demonstrates changed circumstances that materially affect his or her eligibility for asylum.  In Yang v. Barr, (2d Cir., July 2, 2019), a woman born in China applied for asylum ten years after entering the United States on a tourist visa.  The application was filed less than a month after she converted to Christianity, and asserted two grounds for asylum-- fear of persecution because of her Christian religion and a forced abortion in China eight years before she entered the United States. In a 2-1 decision, the U.S. 2nd Circuit Court of Appeals held that the change of circumstances-- her religious conversion-- means that an immigration judge may now consider both her bases for asylum, not just the one related to the conversion.

Confrontation Clause Satisfied Even Though Muslim Witness Had Face Partly Covered

In Commonwealth of Pennsylvania v. Smarr, (PA Super., July 3, 2019), a Pennsylvania state appellate court held that the Confrontation Clauses of the U.S. and Pennsylvania constitutions were not violated when a trial court allowed the sole eye-witness to a murder to testify with a colorful scarf covering her mouth and nose. The witness, a Muslim, said that she wears a face covering on Fridays, when she goes to religious services, and whenever else she feels like it. She said she was wearing it to court out of concern for her safety. Focusing on the importance of protecting the witness' free exercise rights, the court said in part:

No precedent has established that a witness’s clothing or accessories renders a physical, in-court confrontation other than face-to-face, particularly where the clothing does not obstruct the witness’s eyes, and we decline to do so under the facts of this case. We therefore hold that Smarr’s right to be brought face-to-face with his accuser was satisfied....

[T]he jury could view Brown’s eyes, and to some extent, her facial expressions; her posture, her gestures, and her body language; hear her tone of voice, her cadence, and her hesitation; and observe any nervousness, frustration, or hostility.

Pastor Sues City Council Over Censorship of His Invocation

A suit was filed in a Florida federal district court this week by a pastor whose invocation at a Jacksonville City Council meeting was cut off by the Council president who thought the invocation was too political.  The complaint (full text) in Gundy v. City of Jacksonville, (MD FL, filed 7/1/2019), alleges that Pastor Reginald Grundy's microphone was cut off 4 minutes into his invocation after he said:

Father, in the name of Jesus, we have a political climate right now that is dividing our community further and further apart because of pride and selfish ambitions. People are being intimidated, threatened, and bullied by an executive branch of our city government while cronyism and nepotism is being exercised in backrooms.

City Council President Aaron Bowman justified his action the next day on Twitter, saying:

I never envisioned a CM (council member) stooping so low to find a pastor that would agree to such a sacrilegious attack politicizing something as sacred as our invocation. It obviously was a last ditch effort to try and revive a failed term and campaign. Fortunately I control the microphone.

Grundy contends that Bowman's action violated his free speech and free exercise rights protected by the U.S. and Florida constitutions. News4JAX reports on the lawsuit.

NY Archdiocese Sues Insurers For Coverage of Anticipated Sex Abuse Claims

As reported by Church Militant and Lower Hudson News, the Catholic Archdiocese of New York last week filed suit in a state trial court against 32 of its insurance companies to force them to cover the costs of defending cases likely to be filed when the state's new Child Victims Act set to take effect in August. The suit was filed after a subsidiary of the Chubb Group refused to defend an upcoming lawsuit that alleges the Archdiocese knew or should have known about the sexual abuse that was suffered by the plaintiff. The insurance company claims that this is an event that was expected or intended by the Archdiocese, and so is not covered by its liability policy.

Vatican Reiterates Inviolability of Confessional

On Monday, the Vatican, with the approval of Pope Francis, released the Note of the Apostolic Penitentiary on the Importance of the Internal Forum and the Inviolability of the Sacramental Seal.(Full text in Italian.)   The Note reads in part [unofficial translation]:

Any political action or legislative initiative aimed at "forcing" the inviolability of the sacramental seal would constitute an unacceptable offense against the libertas Ecclesiae , which does not receive its legitimacy from individual States, but from God; it would also constitute a violation of religious freedom, legally fundamental to all other freedoms, including the freedom of conscience of individual citizens, both penitents and confessors. Breaking the seal would be tantamount to violating the poor who is in the sinner.

The Apostolic Penitentiary is a Vatican tribunal dealing with issues of confession and absolution. According to an AP report, Cardinal Piacenza, head of the tribunal, issued a statement interpreting the Note, and saying in part:

It’s opportune to make clear that the text of the statement cannot and doesn’t want to be in any way a justification or a form of tolerance of the abhorrent cases of abuse perpetrated by members of the clergy.

No compromise is acceptable in promoting the protection of minors and of vulnerable persons and in preventing and combatting every form of abuse, in the spirit of that which has been constantly reiterated (by Francis).

[Thanks to Tom Rutledge for the lead.]

Supreme Court Denies Review In Abortion Case, But Thomas Urges Future Action

Last Friday, the U.S. Supreme court denied certiorari in Harris v. West Alabama Women's Center, (Docket No. 18-837, certiorari denied 6/28/2019). In the case, the U.S. 11th Circuit Court of Appeals struck down Alabama's ban on dilation and evacuation abortions (referred to in the Alabama statute as "dismemberment abortions").  Justice Thomas filed a separate opinion concurring in the denial of review, but making a strong plea for the Court to revisit its abortion decisions.  He said in part:

The notion that anything in the Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible. But under the “undue burden” standard adopted by this Court, a restriction on abortion—even one limited to prohibiting gruesome methods—is unconstitutional if “the ‘purpose or effect’ of the provision ‘is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’” ...

This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control....  Although this case does not present the opportunity to address our demonstrably erroneous “undue burden” standard, we cannot continue blinking the reality of what this Court has wrought.

New Jersey Town Settles With Native American Tribe Seeking Use of Its Sacred Land

Mahwah Patch reports that a settlement has been reached in four pending cases pitting the Native American Ramapough Lenape Nation against the Township of Ramapough, New Jersey. Three of the cases are land use and zoning claims against the Indian Tribe. The fourth is a federal civil rights suit by the Tribe  claiming that local officials along with a neighboring housing association are attempting to prevent the Ramapoughs from using their own prayer ground for religious activities. (See prior posting.) Under the settlement agreement, the Tribe can continue to hold community and religious gatherings at its Sweet Water Prayer Site, and the Township will not try to remove the Tribe's sacred prayer circle or stone altar from the site. The settlement also dismisses millions of dollars of fines that had been levied against the Tribe. A civil rights action by the Tribe against the Ramapo Hunt & Polo Club has not been settled. That suit alleges that the Club, which borders the Tribe's Prayer Site, has conspired to deny the Tribe the use of its own land. Center for Constitutional Rights also issued a press release announcing the settlement agreement.

Rhode Island Catholic Diocese Posts List of Credibly Accused Clergy

As reported by AP, the Diocese of Providence (Rhode Island) yesterday posted on its website a list of 50 clergy who have been credibly accused of sexual abuse of children since 1950.  Over half of those on the list are now deceased. Those who are living have all been removed from the ministry (or in one case resigned before allegations surfaced).

New Tax Law Tweaks Non-Profit Annual Filing Requirements

President Trump yesterday signed the bipartisan Taxpayer First Act (full text) into law. The bill makes two changes applicable to non-profit organizations. Section 3101 provides that those organizations required to file annual returns must file them electronically. Section 3102 requires the IRS to give notice to a non-profit before revoking its tax exempt status for failure to file annual returns.  It should be noted that under IRC Sec. 6033(a)(3), churches and small religious organizations are exempt from annual return filing requirements. The Hill reports on the President's signing of the bill into law.

Church Sues Over Cannabis Raid

Redheaded Blackbelt reported yesterday:

A church called Redwood Spiritual Healing Ministry filed a lawsuit Thursday, June 27 against the County of Humboldt and the California Department of Fish and Wildlife (CDFW) alleging violations of its 1st Amendment right to religious freedom as well as due process violations when a multiple agency task force destroyed cannabis as well as private property during the execution of a search warrant. The case further alleges that the County of Humboldt may have withheld relevant information from a judge by having CDFW file the Affidavit for the search warrant without informing the judge that the property in question may be a church under the law.

The full text of the complaint in Redwoods Spiritual Healing Ministry v. Humboldt County, California, (CA Super. Ct., filed 6/27/2019) embedded at the end of the news report on the lawsuit.

Recent Articles of Interest

From SSRN:

• Susanna Mancini, European Law and the Veil. Muslim Women from Victims to Emblems of the Enemy, (A. Melloni, F. Cadeddu (eds.) Religious Literacy, Law and History, Routledge, 2019).
• Michael Quinlan, Christianity And The Law: Trial Separation Or Acrimonious Divorce?, (2018).
• Michael Quinlan, Law And Religion In Western Australia: Cooperation or Conflict?, (June 17, 2019).
• Elizabeth Sepper, Religious Exemptions, Harm to Others, and the Indeterminacy of a Common Law Baseline, (Kentucky Law Journal, Vol. 106, 2018).
• Nathan B. Oman, Temple, Talmud, and Sacrament: Some Christian Thoughts on Halakhah, (Villanova Law Review, Forthcoming 2019).
• Peter J. Oliver & Philippa Watson, Is the Court of Justice of the European Union Finding its Religion?, (Fordham International Law Journal, Vol. 42, No. 3, 2019).
• Matteo Winkler, Same-Sex Marriage and Italian Exceptionalism, (ICL Journal 2018; 12(4); 431–456).
• Hannah Haksgaard, Blending Surnames at Marriage, (30 Stanford Law & Policy Review __ (2019) (Forthcoming)).
• Shazny Ramlan, Religious Law for the Environment: Comparative Islamic Environmental Law in Singapore, Malaysia, and Indonesia, (NUS Centre for Asian Legal Studies Working Paper 19/03 (2019).

From SmartCILP:

• Derrick Bell, Law As a Religion, 69 Case Western Reserve Law Review 265-274 (2018).
• Jean Stefancic, Law, Religion, and Racial Justice: A Comment on Derrick Bell's Last Article, 69 Case Western Reserve Law Review 341-354 (2018).
• Mark L. Rienzi, Administrative Power and Religious Liberty at the Supreme Court, 69 Case Western Reserve Law Review 355-394 (2018).
• Twentieth Annual Review of Gender and the Law, 20 Georgetown Journal of Gender & Law 265-540 (2019).

EEOC Sues United Methodist's Global Ministries

The EEOC announced Friday that it has filed a federal lawsuit against  the Atlanta-based Global Ministries of the United Methodist Church, claiming that it fired an employee for complaining about racial discrimination. The lawsuit alleges that an employee who was hired to write articles for Global Ministries' website was fired after she complained several times to the human resources department about discriminatory and retaliatory treatment.

HHS Agrees To Delay In Implementing New Health Care Conscience Rules

The Department of Health and Human Services will delay at least until Nov.22 implementation of its newly adopted rules for conscience protection of health care providers.  The move came through an consent order submitted by the Justice Department and the San Francisco City Attorney Dennis Herrera in a lawsuit brought by Herrera challenging the new rules. (See prior posting.) The delay will allow time for the court to decide the merits of the challenge. Announcing the filing of the consent order, Herrara said in part:

The Trump administration is trying to systematically limit access to critical medical care for women, the LGBTQ community, and other vulnerable patients. We’re not going to let that happen. We will continue to stand up for what’s right. Hospitals are no place to put personal beliefs above patient care. Refusing treatment to vulnerable patients should not leave anyone with a clear conscience.