Dispute Over Selection of New Pastor Dismissed Under Ecclesiastical Abstention Doctrine

In Mouton v. Christian Faith Missionary Baptist Church, (TX App., May 24, 2016), a Texas state appeals court dismissed on ecclesiastical abstention grounds a dispute between two groups in a church over who should be its new pastor.  The court said in part:

Appellants contend that their claims arise solely from the church’s failure to abide by non-ecclesiastical terms of the church’s bylaws and, therefore, the trial court had jurisdiction to adjudicate the case under neutral principles of law.  According to appellants, the questions they raise—including whether appellees complied with church bylaws in electing Wilson as pastor and whether appellees properly expelled appellants from church membership—are non-ecclesiastical because they are governed by non-ecclesiastical provisions in the church’s corporate documents. We conclude that the trial court correctly granted the plea to the jurisdiction because appellants’ claims are inextricably intertwined with inherently ecclesiastical issues

In Vietnam, Obama Calls For Increased Freedom of Religion Among Other Human Rights

President Obama today during his trip to Vietnam delivered an address to the people of Vietnam from the National Convention Center in Hanoi. His remarks (full text) included a call for improvement in the human rights situation in Vietnam, including freedom of religion.  He said in part:

When there is freedom of expression and freedom of speech, and when people can share ideas and access the Internet and social media without restriction, that fuels the innovation economies need to thrive....  

When there is freedom of religion, it not only allows people to fully express the love and compassion that are at the heart of all great religions, but it allows faith groups to serve their communities through schools and hospitals, and care for the poor and the vulnerable.  And when there is freedom of assembly -- when citizens are free to organize in civil society -- then countries can better address challenges that government sometimes cannot solve by itself.  So it is my view that upholding these rights is not a threat to stability, but actually reinforces stability and is the foundation of progress. 

After all, it was a yearning for these rights that inspired people around the world, including Vietnam, to throw off colonialism.  And I believe that upholding these rights is the fullest expression of the independence that so many cherish, including here, in a nation that proclaims itself to be “of the People, by the People and for the People.”

Court Issues TRO Against Ohio's Cutoff of Funding For Planned Parenthood

In Planned Parenthood of Greater Ohio v. Hodges, (SD OH, May 23, 2016), an Ohio federal district court issued a two-week temporary restraining order barring the Ohio Department of Health and the Hamilton County Public Health Commission from enforcing Ohio Rev. Code § 3701.034.  That section requires the state department of health to ensure that funds it receives under six specific federal programs are not used to contract or affiliate with an entity that performs or promotes non-therapeutic abortions. The effect of the law is to cut off funding for Planned Parenthood to use for various women's health programs that do not involve abortion services in order to pressure Planned Parenthood to end performing or promoting abortions using other funding. The court concluded that it is likely plaintiffs will succeed in their claim that the statute imposes unconstitutional conditions on the receipt of federal funds:

Section 3701.034 allows ODH to leverage its control over government funds to prevent recipients of government funds from engaging in constitutionally protected speech and association, even if that speech is undertaken with private funds.

The court also found a likelihood of success on plaintiffs' claims that the law imposes an undue burden on a woman's right to have an abortion and denies equal protection.  Cleveland Plain Dealer reports on the decision.

Bill Would Prohibit Excluding Aliens' Admission To U.S. On Religious Grounds

Apparently in reaction to presumptive Republican presidential nominee Donald Trump's proposals on Muslim immigration, on May 12 Rep. Donald Beyer introduced into Congress H.R. 5207, the Freedom of Religion Act of 2016 (full text). The bill, which now has 103 co-sponsors (all Democrats), would amend the Immigration and Nationality Act by adding a section that provides:

Notwithstanding any other provision of the immigration laws, an alien may not be denied admission to the United States because of the alien’s religion or lack of religious beliefs.

Supreme Court Denies Review In Two Cases of Interest

The U.S. Supreme Court today denied certiorari in two cases of interest (Order List):

Chabad-Lubavitch of Michigan v. Schuchman, (Docket No. 15-1005, cert. denied 5/23/2016). In the case, the Michigan Supreme Court found that the statute of limitations had run in a dispute between Chabad-Lubavitch of Michigan and a local Chabad organization over ownership of a Chabad center. (See prior posting.)

Sunrise Children's Services v. Glisson, (Docket No. 15-1021, cert. denied 5/23/2016).  In the case decided below under the name Pedreira v. Sunrise Children's Services, Inc., the 6th Circuit essentially reopened a long-running Establishment Clause dispute over Kentucky state funding  of treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization. (See prior posting.) The cert. petition (full text) focuses on standing questions.

Supreme Court Sends 2 More Contraceptive Mandate Cases Back To Circuit Courts

The U.S. Supreme Court today sent back to Courts of Appeal two more of the cases involving challenges by religious non-profits to the contraceptive coverage mandate accommodation. (5/23/16 Order List).  The cases today in which the Court granted certiorari, vacated the judgement below and remanded in light of Zubik v. Burwell are Catholic Health Care System v. Burwell, (Docket No. 15-1100) remanded to the 2nd Circuit (see prior posting), and Michigan Catholic Conference v. Burwell,  (Docket No. 15-1131) remanded to the 6th Circuit (see prior posting).

Tajikistan Voters Ban Religious Political Parties

Deutsche Welle reports that voters in Tajikistan yesterday overwhelmingly (94.5% in favor) approved a series of constitutional amendments. One of them bans all political parties based on religion.  Last year the government labeled the opposition Islamic Renaissance Party of Tajikistan (IRPT) a terrorist group and a court shut it down.  According to The Guardian, before then the IRPT had been viewed as moderate and was President Emomali Rakhmon's chief opposition. In another amendment approved by voters yesterday, 63-year-old President Rakhmon is now allowed to run for an unlimited number of terms.  The lifting of the term limit ban applies only to him.

Recent Articles of Interst

From SSRN:

• Michael James Novotny, Excluding Non-Federally Recognized Tribal Members from Obtaining Eagle Parts Under 50 C.F.R. Section 22.22 Violates Post-Burwell RFRA, (May 16, 2016).
• Amy J. Sepinwall, Burdening Substantial Burdens: Zubik v. Burwell and the Contraceptive Mandate, (University of Illinois Law Review, Forthcoming).
• Enzo Rossi, Understanding Religion, Governing Religion: A Realist Perspective, (C. Laborde & A. Bardon, eds, Religion in Liberal Political Philosophy. Oxford: Oxford University Press, 2017).
• Gwendolyn Gordon, Who Speaks the Culture of the Corporation? Dissent in the Close Corporation after Hobby Lobby and Citizens United, (Michigan Business & Entrepreneurial Law Review, Forthcoming).
• Timothy Zick, Rights Dynamism, (May 19, 2016).
• Alexander Tsesis, Terrorist Speech on Social Media, (Vanderbilt Law Review, Vol. 70, 2017).

From SmartCILP:

• Charlotte Garden, Religious Employers and Labor Law: Bargaining in Good Faith?, 96 Boston University Law Review 109-160 (2016).
• Debbie N. Kaminer, Religious Accommodation in the Workplace: Why Federal Courts Fail to Provide Meaningful Protection of Religious Employees, [Abstract], 20 Texas Review of Law & Politics 107-156 (2015).
• Timothy J. Tracey, Just Because You Can, Doesn't Mean You Should: Equal Protection, Free Speech, and Religious Worship, 36 Northern Illinois University Law Review 58-110 (2015).

Recent Prisoner Free Exercise Cases

In Davila v. Marshall, (11th Cir., May 20, 2016), the 11th Circuit upheld the dismissal of a complaint by an inmate that he was denied delivery of a Spanish language Santeria bible and a set of five Santeria bead necklaces required to practice his religion which had been sent to him.

In Merrick v. Inmate Legal Services, (9th Cir., 9th Cir., May 16, 2016), the 9th Circuit reversed the dismissal of an inmate's complaint that the jail did not allow him to confess to clergy of his faith by way of un-monitored, unrecorded phone calls.

In Quinn v. Management & Training Corp., 2016 U.S. Dist. LEXIS 64048 (SD MS, May 16, 2016), a Mississippi federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 64049, April 20, 2016) and dismissed an inmate's complaint that authorities denied him the right to designate Voodoo as his religion of preference.

In Cochran v. Sherman, 2016 U.S. Dist. LEXIS 64958 (ED CA, May 17, 2016), a California federal magistrate judge allowed an inmate to proceed with his RLUIPA claim against the warden seeking an injunction that would allow him, for religious reasons, to obtain a name change.

In Williams v. Beard, 2016 U.S. Dist. LEXIS 65245 (MD PA, May 18, 2016), a Pennsylvania federal district court, finding that plaintiff's rights under RLUIPA had been violated, ordered the prison to provide a clean and appropriate space for Muslim inmates working in the kitchen to offer prayer in a prone position during their shift all year round, or else allow Muslim inmates on kitchen duty to pray in the dining room.

In Atkinson v. Mackinnon, 2016 U.S. Dist. LEXIS 65281 (WD WI, May 18, 2016), a Wisconsin federal district court allowed an inmate to move ahead with his complaint that he was reassigned to a less desirable position with less pay and fewer hours because he is a Muslim.

In Bragg v. Smith, 2016 U.S. Dist. LEXIS 65412 (ED AR, May 18, 2016), an Arkansas federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 65408, April 27, 2016) and dismissed a Musliim inmate's complaint that he was served pork at least three times per week.

In Herndon v. Tostand, 2016 U.S. Dist. LEXIS 65662 (ED CA, May 17, 2016), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's vague claim that "our Imam does not have any money to give one jumuah prayer on Fridays."

In Hall v. Frauenheim, 2016 U.S. Dist. LEXIS 65693 (ED CA, May 17, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that he missed numerous kosher meals, which are a call to worship, and that defendant criticized his religion.

In Cosby v. Erfe, 2016 U.S. Dist. LEXIS 65884 (D CT, May 19, 2016), a Connecticut federal district court dismissed a Buddhist inmate's complaint about difficulties in obtaining a vegetarian diet.

City Sells Religious Monument In Park To Church To Counter Complaints

Christian News reports today that the city of Port Neches, Texas has fended off complaints from the Freedom From Religion Foundation about a 10-foot high Latin cross in a public park by selling the cross and the land surrounding it to a local church.  The 20 foot by 20 foot parcel of land in Riverfront Park was sold to the First United Methodist Church for $100.  FFRF, while applauding the sale, is looking further into whether the sale price was artificially low.

Oklahoma Governor Vetoes Abortion Ban

As reported by the Washington Post, Oklahoma Governor Mary Fallin today vetoed SB 1552, a bill that, with narrow exceptions, would have subjected doctors who perform abortions to felony prosecution as well as to loss of their licenses. (See prior posting.)  In her veto message (full text), Gov. Fallin said that the bill's exclusion for abortions that are "necessary to preserve the life of the mother" is unconstitutionally vague. She added:

While I consistently have and continue to support a re-examination of ... Roe v. Wade, this legislation cannot accomplish that re-examination.  In fact, the most direct path to a re-examination ... is the appointment of a conservative pro-life justice to the United States Supreme Court.

Supreme Court Says Attorneys' Fees In Title VII Actions Available In Procedural Wins

Yesterday, in a case that has implications for religious discrimination cases brought by the EEOC, the U.S. Supreme Court held that successful defendants in employment discrimination cases can recover attorneys' fees when they win on procedural grounds, as well as when they succeed on the merits.  In CRST Van Expedited, Inc. v. EEOC, (Sup. Ct., May 19, 2016), the court held that "a defendant need not obtain a favorable judgment on the merits in order to be a 'prevailing party.'" SCOTUSblog has more on the decision.

Oklahoma Legislature Purports To Outlaw Almost All Abortions In Statute Raising Many Questions

The Oklahoma legislature gave final passage yesterday (legislative history) to Senate Bill No. 1552 (full text), purporting to outlaw almost all abortions in the state.  The bill makes it a felony punishable by not less than one nor more than three years in prison for anyone to "perform or induce an abortion upon a pregnant woman."  The bill also requires revocation of the license of any physician performing an abortion, and prohibits any physician participating in the performance of an abortion from obtaining or renewing a medical license in the state. The only exclusion is for "an abortion necessary to preserve the life of the mother...." However this does not include the situation in which the physician determines "that the woman may engage in conduct which she intends to result in her death."

As reported by Huffington Post, it is unclear whether or not Governor Mary Fallin will sign the law which is clearly unconstitutional under current U.S. Supreme Court precedent. It should be noted that, besides the constitutional concern, the language of the bill creates a number of questions.  While the bill does not explicitly prescribe punishment for the woman who has procured the abortion, existing law, Oklahoma Statutes, Title 21, Sec. 172, provides that "All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission ... are principals." Also, it is unclear whether the bill's ban on licensure of any physician who participates in performing an abortion would apply to those who while in medical training in other states participate in the procedure there.

Polish Court Upholds Refusal To Recognize Pastafarians

Radio Poland reports that in Warsaw, Poland yesterday the Voivodship Administrative Court upheld the refusal by the Internal Affairs Ministry to list the Church of the Flying Spaghetti Monster in the register of religious denominations.  The court said that the Pastafarians still have the right to practice their religion, so neither the country's constitution nor international conventions were breached.  The church says it will appeal to the Supreme Administrative Court.

3rd Circuit Hears Oral Arguments In Ten Commandments Case

The U.S. 3rd Circuit Court of Appeals heard oral arguments yesterday (audio of full arguments) in  Freedom From Religion Foundation, Inc. v. New Kensington-Arnold School District, a challenge to a Ten Commandments monument on the lawn of a Pennsylvania high school.  In the case, the federal district court held that plaintiffs lacked standing to challenge the monument because they had not been injured by its presence. (See prior posting.) The Pittsburgh Tribune-Review reports on the case.

Ryan Appoints 2 USCIRF Members

In a press release yesterday, the U.S. Commission on International Religious Freedom announced that on May 13, House Speaker Paul Ryan reappointed Villanova University faculty member Dr. Daniel Mark for a second 2-year term on the Commission.  Ryan also appointed Kristina Arriaga de Bucholz, executive director of the Becket Fund for Religious Liberty, to a 2-year term replacing Dr. Robert George whose term has expired. Appointments to the 9-member Commission are made by the President and by Congressional leaders of each party.

Colombia Court Ends Municipal Council Invocations

Fox News Latino reports that on May 10 a trial court judge in Cartagena, Colombia ordered a stop to invocations at the beginning of Municipal Council meetings and events of other public entities. Yesterday 1000 people demonstrated against the decision in front of city hall, carrying signs with messages such as:   "Cartagena is Christ's" and "God demands that we pray without ceasing."

Nevada Trial Court Rejects State Constitutional Challenge To School Choice Law

In Duncan v. Sate of Nevada, (NV Dist. Ct., May 18, 2016), a Nevada state trial court judge dismissed state constitutional challenges to Nevada's new Educational Savings Account program. The program, more extensive than any other in the country, allows parents of any child who has attended a public or charter school for at least 100 days to receive into an educational savings account a portion of the state's funding for use at an eligible alternative private (including religious) school. Finding that plaintiffs had standing only to bring facial challenges, the court held that the program does not violate Nevada Constitution Art. XI, Sec. 2 that requires the legislature to provide a uniform public school system nor Art. XI, Sec. 10 that prohibits use of public funds for sectarian purposes.

In a wide-ranging 45-page opinion, the court held that the state constitution does not limit the legislature to providing education only through a uniform public school system. It may also use other suitable means.  It also held that the prohibition on using public funds for sectarian purposes only imposes restrictions co-extensive with the federal Establishment Clause.

In January, another trial court judge enjoined implementation of the program. (See prior posting.) Reacting to yesterday's court's decision, Nevada Attorney General Adam Paul Laxalt said  in part (full text of statement): "The decision today clears the way for the Nevada Supreme Court to meaningfully address the remaining uncertainty caused by the injunction in the other case challenging Nevada’s ESA program. We are one giant step closer to helping thousands of Nevada families choose the best educational option for their children." AP reports on the decision and the ACLU's reaction to it.

6th Circuit Remands RLUIPA "Equal Terms" Zoning Challenge

In Tree of Life Christian Schools v. City of Upper Arlington, (6th Cir., May 18, 2016), the U.S. 6th Circuit Court of Appeals in a 2-1 decision reversed and remanded in a RLUIPA land use case, finding that material facts remain as to the application of RLUIPA's "equal terms" provision.  At issue is an Ohio city's refusal to rezone a large office building for use as a religious school. The office building is in an area zoned as an "Office and Research District" -- an area designed for uses that would maximize the city's tax revenues. The majority said in part:

The religious land use that TOL Christian Schools proposes is, we assume without deciding, deleterious to the purpose of the regulation at issue (which we assume to be increasing income-tax revenue). But the nonreligious uses that the government concedes it would allow seem to be similarly situated to the regulation..... [T]he government suggested at oral argument that it would prefer that [the property] be used for an ambulatory care center or outpatient surgery center. But we cannot assume as a fact... that an ambulatory care center (or an outpatient surgery center, or a data and call center, or office space for a not-for-profit organization, or a daycare) would employ higher-income workers than TOL Christian Schools would.... 

Proposed RFRA Amendment Would Bar Its Use To Discriminate or Injure 3rd Parties

Yesterday two members of the U.S. House of Representatives, Joe Kennedy III and Bobby Scott, announced the introduction of the Do No Harm Act (full text). The bill would amend the Religious Freedom Restoration Act to preclude its use in ways that result in discrimination or harm to third parties or impose one person's religious views on another. More specifically, the bill would preclude using RFRA to create religious exemptions from various civil rights laws or labor laws, or accommodations which limit access to health care, or receipt of goods or services from the government or from government contractors or grantees.