10th Circuit Reverses Dismissal Of Inmate's 1st Amendment Claims

In Khan v. Barela, (10th Cir., March 26, 2020), the U.S. 10th Circuit Court of Appeals in a 35-page opinion reversed a New Mexico federal district court's sua sponte dismissal of a federal pre-trial detainee's pro se 1st and 4th Amendment claims. Erik Khan was a pre-trial detainee for some four years. His 1st Amendment free speech claims involved a prohibition on his reading hard-cover books, newspaper and newspaper clippings. His 1st Amendment free-exercise claims revolved around prison chaplains' refusal to allow him a clock, prayer schedule, and Muslim calendar to track the timing of Ramadan, and his inability to obtain Ramadan-compliant meals.

Student Who Objects To Reciting Pledge May Move Ahead On Compelled Speech Claim Against Teacher

In Oliver v. Klein Independent School District, (SD TX, March 25, 2020), a Texas federal district court, while dismissing a number of plaintiff's claims, allowed a high school student to move ahead with her 1st Amendment compelled speech claim against her sociology teacher Benji Arnold.  Plaintiff Mari Oliver  objected to reciting the Pledge of Allegiance. As described by the court:

Arnold played the Bruce Springsteen song “Born in the U.S.A.,” and told the class to write down how the song made them feel.... He then gave the students a timed assignment to transcribe the Pledge of Allegiance, stating that, because the assignment was written, the students were not actually pledging allegiance to the United States.... Oliver refused, drawing a “squiggly line” instead.

The court held:

The parties disagree about whether Arnold was hostile to those who abstain from the pledge and refuse to assimilate into American society. The complaint alleges that Arnold compared people who abstain from the pledge to Soviet communists, supporters of Sharia, and people who condone pedophilia.... The parties’ interpretations of Arnold’s remarks inform their arguments about whether the pledge assignment had an impermissible patriotic intent. Oliver and Arnold also dispute whether Oliver’s refusal to write the pledge was protected speech or a mere refusal to do coursework.... Granting summary judgment for Arnold on the compelled-speech claim is clearly inappropriate. Granting partial summary judgment for the plaintiffs is a closer question, but the full record at trial will provide a more secure basis for an accurate ruling.

Cert. Filed In Pittsburgh Abortion Clinic Buffer Zone Ordinance

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Bruni v. City of Pittsburgh. In the case, the U.S. 3rd Circuit Court of Appeals upheld a Pittsburgh ordinance that creates a 15-foot buffer zone outside any health care facility, including a Planned Parenthood clinic. In Bruni v. City of Pittsburgh, (3d Cir., Feb. 6, 2019), the court upheld the ordinance by interpreting it to not cover sidewalk anti-abortion counseling. ADF issued a press release announcing yesterday's filing of the petition for review.

Sioux Tribes Get Delay In Dakota Access Pipeline

In Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, (D DC, March 25, 2020), the D.C. federal district court held that the Army Corps of Engineers needs to prepare an environmental impact statement on the proposed Dakota Access Pipeline route under Lake Oahe in North and South Dakota.  Sioux tribes rely on Lake Oahe water for, among other things, sacred religious and medicinal practices. Inside Climate News reports on the decision.

Canadian Province's School Funding of Catholic School Upheld

In Government of Saskatchewan v. Good Spirit School Division No. 204, (SK Ct. App., March 25, 2020), the Saskatchewan (Canada) Court of Appeal in a 133-page opinion, upheld the province's funding for non-Catholic students enrolled in a government-funded Catholic school. Global News reports on the decision.

Navy Liberalizes Policy On Religious Head Coverings

The U.S. Navy, in a memo dated March 16 (full text), became the third branch of the armed forces to liberalize its policy on accommodation of religious headgear.  As reported by Navy Times:

Previously, religious head coverings like Muslim hijabs and Jewish kippahs were allowed because they did not interfere with uniform covers, but per the March 16 instruction from the Bureau of Navy Personnel, there is no longer a requirement that an approved religious head covering be worn underneath the cover prescribed by the uniform of the day.

[Thanks to Scott Mange for the lead.]

Texas and Ohio COVID-19 Limits On Elective Medical Procedures Include Elective Abortions

Texas Tribune reports:

Citing the need to preserve health care capacity for COVID-19 patients, Texas Attorney General Ken Paxton said Monday that abortions should not be performed unless the mother's life is in danger.

The warning comes one day after Gov. Greg Abbott ordered health care facilities and professionals to postpone all procedures that are deemed “not medically necessary” as the state gears up for an influx of patients with COVID-19, the disease caused by the new coronavirus.

The attorney general said that the order, set to expire April 21, should also be interpreted to cover abortion clinics in the state.

Here is the Attorney General's press release.

New York Times reports that Ohio imposed a similar ban last week.

Britain Moves To Coronavirus Closures, Including Churches

Yesterday in Britain, Prime Minister Boris Johnson announced stay-at-home restrictions for the country to combat the spread of COVID-19. He said in part:

To ensure compliance with the Government’s instruction to stay at home, we will immediately: .... we’ll stop all social events​, including weddings, baptisms and other ceremonies, but excluding funerals.

The Church of England quickly announced that all of its churches would close immediately. [Thanks to Law & Religion UK for the lead.]

Huthi Court In Yemen Upholds Anti-Baha'i Death Sentence and Dissolution Order

AFP reports that on Sunday, a Huthi run appellate court in Yemen upheld the death sentence of a member of the Baha'i faith, despite international appeals on his behalf:

Hamed bin Haydara, who has been detained since 2013, was not allowed into Sunday's hearing in the capital Sanaa that rejected his appeal against the sentence imposed more than a year ago, the community said....

The rebels are linked to Iran, whose Shiite clerical regime bans the Baha'i faith....

The Baha'i International Community reports that there have been 18 appeals court hearings since bin Haydara was sentenced.

The U.S. Commission on International Religious Freedom issued a press release condemning the decision and said that the same court also upheld an order requiring dissolution of Baha'i institutions in Yemen.

Ohio Stay-At-Home Order Exempts Religious Gatherings

Ohio Governor Mike DeWine yesterday announced a statewide stay-at-home order designed to limit the spread of the coronavirus. The Order (full text) requires all persons to stay at home unless engaged in "essential" work, activity or travel. Among the list of essential operations that may continue is:

Religious facilities, entities and groups and religious gatherings, including weddings and funerals.

The Order takes effect at 11:59 pm today.  Business Insider reports on the governor's action.

Recent Articles of Interest

From SSRN:

• Helen M. Alvare, Beyond Moralism: A Critique and a Proposal for Catholic Institutional Religious Freedom, (Connecticut Public Interest Law Journal, Vol. 19, No. 1, 2019).
• Terri Day, Revisiting Masterpiece Cakeshop -- Free Speech and the First Amendment: Can Political Correctness Be Compelled?, (Hofstra Law Review, Volume 48 (Forthcoming)).
• Joao Pedro Padua, Discursive Devices for Inserting Morality Into Law: Initial Exploration From the Analysis of a Brazilian Supreme Court Decision, (Language and Law / Linguagem e Direito, Vol. 6(1), 2019, p. 11-29).
• Shamshad Pasarlay, Shīʿī Constitutionalism in Afghanistan: A Tale of Two Draft Constitutions, (Australian Journal of Asian Law, Vol. 20, No. 2, Article 1, 2020).
• Greer Donley, Parental Autonomy over Prenatal End-of-Life Decisions, (Minnesota Law Review, Vol. 105, Forthcoming).

From SmartCILP:

• Jonathan J. Kim & Eugene Temchenko, Constitutional Intolerance to Religious Gerrymandering, 18 Connecticut Public Interest Law Journal 1-57 (2019).
• L. Darnell Weeden, Using Rational Basis Review in an Establishment Clause Challenge to an Alleged Muslim Travel Ban Undermines Religious Liberty, 18 Connecticut Public Interest Law Journal 165-186 (2019).

Michigan Houses of Worship Exempted From Penalties For Violating COVID-19 Executive Order

On March 17, Michigan Governor Gretchen Whitmer issued Executive Order 2020-11 (COVID-19) which banned assemblages of more than 50 people in a single indoor shared space, with limited exceptions. None of the exceptions related to houses of worship.  However is an FAQs posting later in the week, the state said that while places of worship are covered, they are exempt from the penalty provisions that make willful violations of the ban a misdemeanor.  Detroit Free Press reports on the developments.

Texas Judge Sues Over Right To Oppose Same-Sex Marriage

A county judge in Jack County, Texas has filed suit in a Texas federal district court seeking declaratory and injunctive relief to prevent any future enforcement action by the Texas State Commission on Judicial Conduct against him. The complaint (full text) in Umphress v. Hall, (ND TX, filed 3/18/2020) alleges in part:

A few months ago, the Texas State Commission on Judicial Conduct issued a “public warning” to Dianne Hensley, a justice of the peace who recuses herself from officiating at same-sex marriage ceremonies on account of her Christian faith....  The Commission’s interpretation of Canon 4A(1) threatens every judge in Texas who refuses to perform same-sex marriages, as well as those who publicly evince disapproval of same-sex marriage or homosexual conduct in their extra-judicial activities.....

The Court should therefore declare that the First Amendment protects Judge Umphress’s right to conduct his extra-judicial activities in a manner that evinces disapproval of same-sex marriage and homosexual conduct.

Pink News reports on the lawsuit.

Police Had Cause To Search Residence of Catholic Religious Order Member

In State of Connecticut v. Sawyer, (CT Sup. Ct., March 19, 2020), the Connecticut Supreme Court held that the search warrant that led to the arrest of a member of a Catholic religious order for possessing child pornography was properly issued.  The court held that authorities had probable cause to search the residence of defendant, a member of The Brothers of Holy Cross, living with two other brothers in an apartment they rented from a West Haven Catholic church. Police acted on a report by one of defendant's roommates. AP reports on the decision.

New Hampshire Governor Sued Over Ban On Large Gatherings

One News Now reports that a lawsuit was filed yesterday in a New Hampshire state trial court challenging the Governor's COVID19- inspired emergency ban on gatherings of 50 or more people. The three plaintiffs argue that there is no emergency and that the ban violates their constitutional rights. Among the gatherings that plaintiffs wish to visit are religious services and Sunday school at a Baptist church. The court refused to issue an immediate temporary restraining order and scheduled a hearing for Friday.

HHS Sued Over Non-Enforcement of LGBTQ Anti-Discrimination Rules

As previously reported, last November the U.S. Department of Health and Human Services announced actions that effectively allow agencies receiving HHS grants to refuse to serve gay, lesbian and transgender individuals and families on religious grounds. First, HHS issued a Notice of Non-Enforcement of  rules adopted in 2016 that prohibit such discrimination. HHS then issued a Notice of Proposed Rulemaking that would repromulgate the rules with narrower anti-discrimination protections. Yesterday, a lawsuit was filed in a New York federal district court challenging the legality of the Notice of Non-Enforcement.

The complaint (full text) in Family Equality v. Azar, (SD NY, filed 3/19/2020) contends that the Notice of Non-Enforcement violates the Administrative Procedure Actin three ways. It was promulgated without notice-and-comment rule making. It was based on a mistaken determination that the 2016 original non-discrimination rule did not comply with the Regulatory Flexibility
Act. HHS failed to consider alternative remedies, the costs and benefits of their decision, and the public interest.  Lambda Legal issued a press release announcing the filing of the lawsuit, saying in part:

As the coronavirus pandemic continues to spread rapidly throughout the U.S., LGBTQ individuals of all ages are left vulnerable by the Trump administration’s illegal action, which implicitly permits discrimination when providing critical services.

Maine Voters Refuse To Repeal Strengthened Vaccination Requirements

As reported by BJC, on Super Tuesday earlier this month, voters in Maine, by a 3-1 margin, rejected an attempt to repeal Maine's new stronger immunization law. The law removes the prior exemption for religious and philosophical objections to vaccination. The law goes into effect in September 2021.

USCIRF Fact Sheet On COVID-19's Impact on Religious Freedom

The U.S. Commission on International Religious Freedom has issued a new Fact Sheet titled: The Global Response to the Coronavirus: Impact on Religious Practice and Religious Freedom.

Maryland Amends Hate Crime Law

The Maryland General Assembly this week gave final passage to an amended hate crime law, making it easier to convict. The bill-- SB606/ HB917 (full text)-- defines a hate crime as one "motivated  in whole or in substantial part" by a person's race, color, religious beliefs, sexual orientation, gender, disability, or national origin, or because another person or group is homeless. Previously the law required the crime be committed "because of" such characteristics. WTOP News reports on the legislature's action.                   

White House Briefs New York's Orthodox Rabbis On COVID-19 Precautions

Jerusalem Post and Jewish Insider report that the White House yesterday held a conference call with 15 leading Orthodox rabbis in the New York area to encourage them to follow the White House guidelines designed to prevent the further spread of COVID-19. The call was conducted by Avi Berkowitz, an Orthodox Jew who is an assistant to the President. More than 100 people have tested positive for the coronavirus in New York's Orthodox Jewish Borough Park neighborhood. After the call, the Satmar Rebbe, Rabbi Aaron Teitelbaum, ordered all synagogues and Jewish schools in the largely Hasidic village of Kiryas Joel to close.