6th Circuit: Street Near Planned Parenthood Clinic Is Traditional Public Forum

In Brindley v. City of Memphis, (6th Cir., July 24, 2019), the U.S. 6th Circuit Court of Appeals held that a street adjacent to a Planned Parenthood clinic is a traditional public forum even though the street was originally privately owned.  The court said it is enough that the street looks and functions like a public street. Also the street was dedicated as a public right of way. Thus the court reversed and remanded a district court's denial of a preliminary injunction to a pro-life activist who wanted access to the street. [Thanks to Tom Rutledge for the lead.]

Judge Urges Plaintiffs To File New Religious Discrimination Suit

In TAL Properties of Pomona, LLC v. Village of Pomona, (SD NY, July 22, 2019), a New York federal district court refused to vacate its earlier judgment and reopen a religious discrimination case brought by a Jewish building developer against a New York village. Plaintiffs argued that a subsequent New York State Division of Human Rights report revealed new evidence of discrimination against Orthodox Jewish residents of the village.  The court, while ruling against plaintiffs, said:

Defendants should take little comfort in this outcome. The allegations presented on this motion, if even half true, are disturbing. I am obliged to stay within the confines of Rule 60(b), which in my judgment does not allow for this lawsuit to be reopened, but should Plaintiffs commence a new lawsuit, they may well be able to state a claim. And I do not see how Defendants will “suffer immense prejudice,” ... if they have to defend themselves on the merits. They may well be able to do so; I have no opinion as to the what the outcome of such a case would be, nor could I at this stage. But should Plaintiffs find it in their interest to pursue a case, airing the allegations and getting to the truth would hardly be a bad thing.

Copyright Infringement Counterclaims Not Dismissed

In Holy Spirit Association for the Unification of World Christianity v. World Peace & Unification Sanctuary, Inc., (MD PA, July 22, 2019), a Pennsylvania federal district court refused to dismiss counterclaims or strike defenses in a copyright infringement suit between two religious organizations.  At issue is the "Twelve Gates" mark which defendant claims is not a valid trademark, and the Tongil symbol which defendant claims is available to be used by all followers of Rev. Sun Myung Moon.

11th Circuit: Inmate's Complaint About Halal-Compliant Food Can Move Ahead

In Robbins v. Robertson, (11th Cir., July 23, 2019), the U.S. 11th Circuit Court of Appeals held that a Muslim inmate's 1st Amendment claim regarding the adequacy of his religious diet should not be dismissed, saying in part:

Plaintiff also made some non-conclusory allegations that plausibly supported his claim that the Islamic-compliant vegan meals were so nutritionally deficient that he was forced to choose between abandoning his religious precepts (by eating religiously non-compliant food that was nutritionally adequate) or suffering serious health consequences (by eating nutritionally inadequate food that was religiously compliant).

Cert Filed In Challenge To Exclusion of Foster Care Agencies That Reject Same-Sex Couples

A petition for certiorari (full text) was filed this week in Fulton v. City of Philadelphia, (cert. filed 7/22/2019).  In the case, the U.S. 3rd Circuit Court of Appeals upheld against 1st Amendment challenges the City of Philadelphia's policy of refusing to contract with foster care agencies, such as Catholic Social Services, that will not place children with same-sex married couples. (See prior posting.)  Becket issued a press release announcing the filing of the petition.

Settlement Reached In Christian School's Zoning Fight

A settlement has been reached in Englewood Church of the Nazarene, Inc. v. Sarasota County, Florida. The suit filed in a Florida federal district court in March alleged violations of RLUIPA, the 1st and 14th Amendments and Florida's Religious Freedom Restoration Act. After the school had been operating in a church's building for more than three years, the county demanded that it seek a special exception to continue its operation and levied daily fines on the school. The school spent $10,000 to complete the application, only to have the special exception denied. (See prior posting.)  According to a press release from ADF, in settling the case the county has approved the church's use of its property. A joint stipulation of dismissal (full text) was filed in Florida federal district court on July 22.

DOJ Summit On Combating Anti-Semitism Held Last Week

Last Monday, the Department of Justice held a Summit on Combating Antisemitism.  Deputy Attorney General Jeffrey A. Rosen delivered Introductory Remarks (full text) and Attorney General William Barr delivered the keynote speech opening the Summit (full text). He said in part:

The first panel will focus on combatting anti-Semitism while respecting the First Amendment. Hate-crime and civil-rights prosecutions are important tools but they cannot solve the problem on their own. Hearts and minds must be changed, but that is not always a task to which the government is particularly well-suited. We have a legal obligation to respect the free speech rights of even despicable speakers and our harshest critics. But lines can be drawn by our society, sometimes easily and sometimes not so easily, between that commitment and repudiation of anti-Semitism.

Another panel will focus on the problem of anti-Semitism on campus. On college campuses today, Jewish students who support Israel are frequently targeted for harassment, Jewish student organizations are marginalized, and progressive Jewish students are told they must denounce their beliefs and their heritage in order be part of "intersectional" causes. We must ensure – for the future of our country and our society – that college campuses remain open to ideological diversity and respectful of people of all faiths.

The DOJ website contains photos of the Summit. JTA reports on additional speakers at the Summit.

Recent Articles of Interest

From SSRN:

• William E. Thro, Embracing Constitutionalism: The Court and the Future of Higher Education Law, (University of Daytona Law Review, Vol. 44, No. 147, 2019).
• Richard W. Garnett, Religious Freedom and the Churches: Contemporary Challenges in the United States Today, (Studies in Christian Ethics, Vol. 32, Issue 4 (2019)).
• Stephen Mark Bainbridge, Bob Cochran on Law and Lawyering: A Catholic Perspective , (UCLA School of Law, Public Law Research Paper No. 19-21 (2019)).
• Stephen Mark Bainbridge, Enhanced Accountability: The Catholic Church’s Unfinished Business, (53 University of San Francisco Law Review 165 (2019)).
• Allen R. Kamp, Right Rights, (January 29, 2019).
• Erik Baldwin, et. al., The Burqa Ban: Legal Precursors for Denmark, American Experiences and Experiments, and Philosophical and Critical Examinations,(International Studies Journal, vol. 15, no. 1, Summer 2018).
• Laura T. Kessler, Reynolds v. United States, Rewritten, (July 18, 2019).
• John Witte, 'John Calvin,' (in Olivier Descampes and Rafael Domingo, eds., Great Christian Jurists in French History (Cambridge University Press, 2019), 117-33).
• John Witte, Church, State, and Sex Crimes: What Place for Traditional Sexual Morality in Modern Liberal Societies?, (Emory Law Journal 68 (2019): 837-865).

Court Expands Injunction On Prayer At High School Graduations

In American Humanist Association v. Greenville County School District, (D SC, July 18, 2019), a South Carolina federal district court expanded its May 2015 order relating to prayer at high school graduation ceremonies in a South Carolina school district. It issued a permanent injunction that includes the following provisions:

(1) The district shall not include a prayer ... as part of the official program for a graduation ceremony. The district also shall not include an obviously religious piece of music as part of the official program for a graduation ceremony.

(2) The district and/or school officials shall not encourage, promote, advance, endorse, or participate in causing prayers during any graduation ceremony....

(4) The district and/or school officials shall not provide copies of student remarks from any prior year’s graduation ceremony to any students selected to make remarks during an upcoming graduation ceremony.

(5) ... No program or flier may direct the audience or participants to stand for any student’s remarks at a graduation ceremony.

(6) If school officials review, revise, or edit a student’s remarks in any way prior to the graduation ceremony, then school officials shall ensure that the student’s remarks do not include prayer.

(7) If school officials do not review, revise, or edit a student’s remarks ..., then a student’s remarks may include prayer, provided that no other persons may be asked to participate or join in the prayer, for example, by being asked to stand or bow one’s head. Moreover, in the event that a student’s remarks contain prayer, no school officials shall join in or otherwise participate in the prayer.

(8) Any program or flier for a graduation ceremony must include the following disclaimer if the ceremony includes a student’s remarks: “The views or opinions expressed by students during this program are their own and do not reflect the policy or position of the school district.”

Greenville News reports on the decision.

FOIA Lawsuit Seeks Information On International Religious Freedom Press Briefing

A Freedom of Information Act lawsuit was filed this week seeking State Department records relating to a March 18 press briefing on international religious freedom. The complaint (full text) in Reporters Committee for Freedom of the Press v. U.S. Department of State, (D DC, filed 7/17/2019), alleges that the State Department press corps was excluded from the briefing, and they were denied a transcript of the briefing,  a list of faith-based media that were invited, and the criteria used to determine those who were invited. Reporters Committee issued a press release announcing the filing of the lawsuit.

Quebec Court Refuses To Enjoin Law Barring Officials From Wearing Religious Symbols

In Hak v. National Council of Canadian Muslims, (Quebec Super. Ct.., July 9, 2019) [opinion in French], a Quebec trial court refused to issue a temporary injunction against enforcement of the province's new law that prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. (See prior posting.) According to CBC News:

The government hoped to shield the law from constitutional challenges by invoking the notwithstanding clause; meaning critics can't appeal to the fundamental freedoms section of the Charter of Rights and Freedoms to get it struck down....

At several points in his decision, [Judge] Yergeau said the injunction request had a steeper hill to climb because the civil society groups couldn't argue the law violated fundamental freedoms protected by the charter.

"The plaintiffs had no other choice for success than to base themselves on purely constitutional arguments, as opposed to Charter arguments, whose validity remains uncertain," the decision reads....

He noted, in particular, the arguments that the law trampled on federal jurisdiction and violated minority rights had enough merit to warrant further consideration by the courts.

But he also said claims that the law had caused irreparable harm were "purely hypothetical and often speculative" given the motion filed so quickly after it was passed.

Catholic Schools Can Challenge Athletic Competition Rule Change

The Ohio Supreme Court in a 5-2 decision in Ohio High School Athletic Association v. Ruehlman, (OH Sup. Ct., July 16, 2019), allowed a trial court judge to move ahead with a challenge brought by Catholic high schools to a rule change by the Ohio High School Athletic Association.  The rule change which relates to the division to which a school is assigned for post-season competition is designed to adjust for the purported advantage that private schools have by reason of their ability to enroll students from wider geographic areas than public schools.  A Catholic school and the athletic conference to which it belongs sought to enjoin application of the new rule. The Ohio High School Athletic Association here sought unsuccessfully to prevent the suit from moving forward.  AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

State Department Hosts Second Ministerial To Advance Religious Freedom

Secretary of State Mike Pompeo is hosting the second Ministerial to Advance Religious Freedom. The 3-day event ends today.  The State Department's website outlines each day's agenda.  The website also has videos of all the speeches and workshops presented during the three days. Secretary Pompeo offered opening remarks at the event. The State Department's website describes the conference:

The Ministerial will reaffirm international commitments to promote religious freedom for all and focus on concrete outcomes that produce durable, positive change. A broad range of stakeholders will convene to discuss challenges, identify concrete ways to combat religious persecution and discrimination, and ensure greater respect for freedom of religion or belief.

The State Department has also chosen 5 recipients of the 2019 International Religious Freedom Awards.

Conservatives Oppose Trump's 5th Circuit Nominee Because of His Contraceptive Mandate Decision

The Washington Times yesterday reported that federal district court judge Halil Suleyman Ozerden, who has been nominated by President Trump for a seat on the U.S. 5th Circuit Court of Appeals is facing opposition from some Republican members of the Senate Judiciary Committee. They have questioned Ozerden's record on religious liberty because of an opinion he wrote in 2012 in Catholic Diocese of Biloxi, Inc. v. Sebelius, (SD MS, Dec. 20, 2012). In that case he dismissed on ripeness grounds a Catholic diocese's challenge to the Affordable Care Act contraceptive coverage mandate.  Conservative advocacy groups such as the American Family Association and the First Liberty Institute are opposing his selection.

U.S. Sanctions Top Burmese Military Leaders For Ethnic Cleansing of Rohingya

Yesterday U.S. Secretary of State Mike Pompeo announced that four top Burmese military leaders and their immediate families will be barred from entry into the United States "for gross human rights violations, including in extrajudicial killings in northern Rakhine State, Burma, during the ethnic cleansing of Rohingya." This made the United States the first government to publicly take action against the most senior leadership of the Burmese (Myanmar) military. The announcement was followed by an official briefing on the action by State Department officials. AlJazeera reports on the State Department's action.

New Report Released On Religious Restrictions Around the World

On Monday, the Pew Research Center released its tenth annual report on governmental restrictions and social hostility to religion in 198 countries and territories around the world. The 126-page report titled A Closer Look At How Religious Restrictions Have Risen Around the World, concludes:

Over the decade from 2007 to 2017, government restrictions on religion — laws, policies and actions by state officials that restrict religious beliefs and practices — increased markedly around the world. And social hostilities involving religion – including violence and harassment by private individuals, organizations or groups – also have risen since 2007, the year Pew Research Center began tracking the issue.

Indeed, the latest data shows that 52 governments – including some in very populous countries like China, Indonesia and Russia – impose either “high” or “very high”levels of restrictions on religion, up from 40 in 2007. And the number of countries where people are experiencing the highest levels of social hostilities involving religion has risen from 39 to 56 over the course of the study.

EEOC Sues McDonald's Franchisee For Failure To Compromise On Grooming Policy

The EEOC announced yesterday that it has filed a lawsuit in a Florida federal district court charging the owner of several McDonald's restaurant franchises in central Florida with religious discrimination.  McDonald's grooming policy requires all employees to be clean shaven.  The restaurant refused to grant an accommodation to a Hasidic Jew who was applying for a part-time maintenance position. The job applicant offered to wear a beard net, but said his religious beliefs preclude shaving.

UPDATE: Here is the full text of the complaint in EEOC v. Chalfont & Associates Group, Inc., (MD FL, filed 7/16/2019). [Thanks to Tom Rutledge.]

9th Circuit Rejects Free Exercise Challenge To Tax Injunction Act

In Samaj v. County of Riverside, (9th Cir., July 15, 2019), the U.S. 9th Circuit Court of Appeals rejected petitioner's free exercise challenge to the federal Tax Injunction Act ("TIA"). The court said in part:

Samaj contends that by stripping the district court of its ability to entertain First Amendment challenges to state taxes, the TIA amounts to a law prohibiting the free exercise of religion. We disagree.... Although a more difficult question would be presented if Samaj were altogether precluded from suing to enjoin an allegedly unconstitutional tax, that is not the case here. The TIA only withdraws federal jurisdiction where the party has a “plain, speedy, and efficient remedy” under state law.

Christian Group Settles Harassment Suit

Last week, a Minnesota state trial court entered a mediated settlement agreement in a case in which a lawyer had obtained a temporary restraining order against the Christian Action League of Minnesota.  As related by a press release from the Thomas More Society:

A local lawyer complained about postcards and emails the group sent to her because she advertises in City Pages. The correspondence informed advertisers that the metro Minneapolis-St. Paul alternative newspaper also promoted the adult sex trade and invited advertisers to reconsider supporting a media outlet that did so.

In R. Leigh Frost Law, Ltd. v. Christian Action League of Minnesota, (MN Dist. Ct., July 11, 2019), the court entered a mediated order dismissing the harassment restraining order, but requiring that for the next two years, Christian Action League may not contact petitioner by any means, including e-mail, social media, post cards, regular mail, phone or in person, nor may it encourage others to contact her or her employer.

Britain Announces Next Steps For Opposite-Sex Civil Partnerships

In a press release last week, Britain's Government Equalities Office announced the release of its report titled Implementing Opposite-Sex Civil Partnerships: Next Steps.  It announces detailed plans for extending civil partnerships to opposite sex couples, and to ask for views of the public on whether conversion of marriages to civil partnerships should be permitted. The report says in part:

Broadly, we intend to provide protections to ensure that faith or religious organisations are not compelled to act in a way that would be in contravention of their beliefs.

...We are aware that for many religious groups, the preferred union for opposite-sex couples is marriage and those groups would not wish to host civil partnerships for opposite-sex couples on their premises, or in any way participate in the formation of opposite-sex civil partnerships. They may also have religious objections to employing individuals, including ministers, who are in a civil partnership as opposed to a marriage.

Law & Religion UK has an extensive discussion of the report.