Study Finds Global Restrictions On Religion Are Easing

The Pew Research Center last week released its latest report on Trends in Global Restrictions on Religion. The report covers calendar year 2014.  Summarizing its findings, the report says in part:

Of the 198 countries included in the study, 24% had high or very high levels of government restrictions in 2014 (the most recent year for which data are available), down from 28% in 2013.  There was a similar decline in the share of countries with high or very high social hostilities involving religion, which dropped from 27% to 23%. This is the second year in a row the number of countries with this level of religious restrictions has declined, after three years of steady increases.

Although only about a quarter of the countries included in the study fall into the most religiously restrictive categories, some of the most restrictive countries (such as Indonesia and Pakistan) are very populous. As a result, roughly three-quarters of the world’s 7.2 billion people (74%) were living in countries with high or very high restrictions or hostilities in 2014, down slightly from 77% in 2013.

The modest declines in countries with high restrictions or hostilities took place despite a marked increase in the number of countries that experienced religion-related terrorist activities, including acts carried out by such groups as Boko Haram, al-Qaida and the Islamic State (also known as ISIS or ISIL).

USCIRF Elects Reese As Chair

The U.S. Commission on International Religious Freedom announced last week that it has elected Rev. Thomas J. Reese, S.J., as Chair of the Commission.  Dr. Daniel Mark and Dr. James J. Zogby were elected as Vice-Chairs.

Court Moves To Invalidate Mississippi's Law For Recusal By County Clerks Who Object To Same-Sex Marriage

In a decision issued yesterday, a Mississippi federal district court took the first step toward issuing an injunction that would have the effect of preventing county clerks in Mississippi from relying on the provisions in Mississippi HB 1523 that allow them to recuse themselves from issuing marriage licenses to same-sex couples because of religious or moral objections to same-sex marriage. (See prior posting.)  The decision came in an attempt to reopen and expand the injunction issued by the federal district court in 2015 baring enforcement of Mississippi's statutory and constitutional provisions barring same-sex marriage.

In Campaign for Southern Equality v. Bryant, (SD MS, June 27, 2016), the court explained:

The constitutional violation this case addressed in 2014 and 2015 was whether the Fourteenth Amendment permitted a State to treat same-sex couples differently than opposite-sex couples with respect to the issuance and recognition of marriage licenses.

Today’s motion concerns the same issue. In HB 1523 § 3(8)(a), the State is permitting the differential treatment to be carried out by individual clerks.***

Section 3(8)(a) is a significant change sufficient to reopen this case and reconsider the language of the Permanent Injunction....  The undersigned, though, is not persuaded that the 81 non-party Circuit Clerks are presently bound by the Permanent Injunction.... [T]he better course of action is to ensure that the remaining 81 Circuit Clerks have received actual notice of a Permanent Injunction that binds them before they are held accountable for it. The parties shall confer on an appropriate procedure for providing that notice....

No one has argued that the Permanent Injunction is invalid, but the briefing now suggests that it lacks all necessary parties. Judicial economy may be served by an Amended Permanent Injunction which enjoins § 263A of the Mississippi Constitution and Mississippi Code § 93-1-1(2), incorporates appropriate language from Rule 65, and clarifies that the persons it binds must issue marriage licenses “on the same terms and conditions as opposite-sex couples.” Obergefell, 135 S. Ct. at 2605....

The point of adding Obergefell’s language is simple: the Supreme Court’s ruling will be enforced. Obergefell “is the law of the land and, consequently, the law of this circuit.” 791 F.3d at 627. Mississippi’s elected officials may disagree with Obergefell, of course, and may express that disagreement as they see fit – by advocating for a constitutional amendment to overturn the decision, for example. But the marriage license issue will not be adjudicated anew after every legislative session. And the judiciary will remain vigilant whenever a named party to an injunction is accused of circumventing that injunction, directly or indirectly.

BuzzFeed reports on the decision.

Supreme Court Invalidates Texas Abortion Access Law

In a 5-3 decision today in Whole Women's Health v. Hellerstedt, (Sup. Ct., June 27, 2016), the U.S. Supreme Court struck down key provisions in Texas' controversial statute regulating access to abortions.  The majority opinion, written by Justice Breyer, held that both the requirement for a physician performing an abortion to have admitting privileges in a near-by hospital and for abortion clinics to meet standards that apply to ambulatory surgical centers place a substantial obstacle in the path of women seeking a pre-viability abortion and place an undue, unconstitutional burden on abortion access. Justices Kennedy, Ginsburg, Sotomayor and Kagan joined Justice Breyer's opinion. Justice Ginsburg also filed a concurring opinion. Justice Thomas filed a dissenting opinion. Justice Alito also filed a dissenting opinion which Chief Justice Roberts and Justice Thomas joined.

Religious Tracts Cannot Be Distributed On Arena Plaza

In Ball v. City of Lincoln, Nebraska, (D NE, June 23, 2016), a Nebraska federal district court dismissed an attempt to enjoin authorities from enforcing a policy that, among other things, bars leafleting on a Plaza Area outside the Pinnacle Bank Arena unless requested by a person renting out the Arena or the artists or productions they represent. (Full text of Use Policy.) The Arena was jointly constructed by the city of Lincoln and the University of Nebraska.  Plaintiff Larry Ball handed out religious tracts in the Plaza Area on several occasions, and was cited for trespass.  The court upheld the Arena's policy, finding that the Plaza Area is a non-public forum and that the restrictions on its use are reasonable because they are neutral and do not curtail free speech in nearby areas. Lincoln Journal Star reporting on the decision says that an appeal is planned.

Recent Articles of Interest

From SSRN:

• Patrick McKinley Brennan, A Catholic Way to Cook a Hamburger? The Catholic Case against McLaw, (Villanova Law Review, Forthcoming).
• Corinna Lain, Death Row, Calls for Indifference, and Redemption of the Soul, (77 Ohio St. L.J. Furthermore, Forthcoming).
• Caroline Mala Corbin, Deference to Claims of Substantial Religious Burden, (Illinois Law Review Online, p.10, 2016).
• Danielle Weatherby & Terri Day, LGBT Rights and the Mini RFRA: A Return to Separate But Equal (Draft), (DePaul Law Review, Forthcoming).
• Dwight G. Newman, Judicial Method on Rights Conflicts in the Context of Religious Identity, (June 24, 2016).
• Courtney G. Joslin, Marriage Equality and its Relationship to Family Law, (129 Harv. L. Rev. F. 197 (2016)).

From SSRN (Non-U.S. Law):

• Gabor Halmai, Constitutionalism, Law, and Religion in Israel: A State's Multiple Identities, (J Civil Legal Sci 2016).
• Mohamed Abdelaal, The Paradox of Freedom of Religion in Post-Revolutionary Egypt, (Pieter Coertzen, M. Christian Green, and Len Hansen (eds.) Religious Freedom and Religious Pluralism in Africa: Prospects and Limitations (African Sun Media, 2016)).
• Luke Beck, When is an Office or Public Trust 'Under the Commonwealth' for the Purposes of the Religious Tests Clause of the Australian Constitution?, (Western Sydney University School of Law Research Paper No. 04/2016 (2016)).
• Alfons Aragoneses, Convivencia and Filosefardismo in Spanish Nation-building, (Max Planck Institute for European Legal History Research Paper Series No. 2016-05 (2016)).
• Victor M. Muniz-Fraticelli, The (Im)Possibility of Christian Education, (June 21, 2016).
• Robert W. McGee, The Relationship between Religion and Views Toward Homosexuality: An Empirical Study of 98 Countries, (June 23, 2016).
• Robert W. McGee, Does Religion Influence Views Toward Homosexuality: An Empirical Study of 16 Countries, (June 23, 2016). 
• Peter M. Beattie, Anti-Semitism and Opposition to Israeli Government Policies - The Roles of Prejudice and Information, (June 15, 2016).
• Elen Seymour & Marina Nehme, The ACNC, the Senate, the Commission of Audit and the Not-for-Profit Sector, (Western Sydney University School of Law Research Paper No. 05/2016 (2015)).

Top Religious Leaders React To Brexit

Several top religious leaders have issued statements reacting to Thursday's vote in Britain to exit from the European Union.  Here are links:

• Archbishops of Canterbury and York
• Cardinal Vincent Nichols, Catholic Archbishop of Westminster
• Britain's Chief Rabbi Ephraim Mirvis
• Pope Francis

Ark Encounter Set To Open In Kentucky

Today's New York Times has a background piece on Kentucky's Ark Encounter-- the massive $102 million Noah's Ark display scheduled to open July 7.  The project has been the subject of extensive controversy over whether state tourism subsidies are appropriate. (See prior  posting.) The Times quotes Ark Encounter promoter, Ken Ham:

The reason we are building the ark is not as an entertainment center.  I mean it’s not like a Disney or Universal, just for anyone to go and have fun. It’s a religious purpose. It’s because we’re Christians and we want to get the Christian message out.

Court Says Religious Autonomy Precludes Adjudication of Suit By Torture Victim

In a fascinating decision handed down June 17, an Oklahoma trial court held that the "religious autonomy doctrine" requires it to dismiss a suit against a U.S. church by a convert from Islam to Christianity who was captured and tortured in Syria because of his conversion. The facts are set out more fully in a complaint (full text) filed in 2014.  A Tulsa, Oklahoma resident who was born in Syria decided to convert, but told First Presbyterian Church leaders that his conversion had to remain confidential because he periodically traveled back to Syria and the punishment for apostasy under Sharia law was death. Despite assurances of confidentiality, the church published an announcement of his baptism in its Order of Worship, which was posted on the World Wide Web.  After traveling back to Syria, plaintiff was bound, beaten and tortured by radical Muslims who threatened to behead him. He eventually escaped.  His suit alleges that the church is guilty of negligence, breach of contract and outrageous conduct leading to extreme emotional distress.

In Doe v. First Presbyterian Church USA of Tulsa, Oklahoma, (OK Dist. Ct., June 17, 2016), the court held that the public dissemination of the names of those who have been baptized "is a key part of how the Church requires a conversion and baptism to be 'visible" to the world." The court went on to say:

the simple dispositive issue is whether the public dissemination of Plaintiff's name as a baptized person is "rooted in religious belief"....

[A] secular Court like this one must not consider claims ... that arise out of a sacrament because a sacrament is part of the most sacred beliefs of that religious institution.... Defendants' deeply held religious belief about the visible, public nature of baptism must not be disturbed by this Court. [emphasis in original]

Tulsa World reports on the decision, with additional background.

Recent Prisoner Free Exercise Cases

In Russell v. Helder, 2016 U.S. Dist. LEXIS 79862 (WD AR, June 20, 2016), an Arkansas federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 79870, May 18, 2016), and refused to dismiss a suit by a Wiccan inmate who was seeking a vegan diet for religious reasons.

In Maon v. State Department of State Hospitals, 2016 Cal. App. Unpub. LEXIS 4576 (CA App., June 21, 2016), a California state appeals court upheld a decision by authorities at a state mental hospital refusing to allow a patient detained there who was to be married in the hospital's visiting room to wear a tuxedo for the ceremony in accordance with Buddhist tradition.

In Rivera v. Raines, 2016 U.S. Dist. LEXIS 82495 (SD IL, June 23, 2016), an inmate complaining about the refusal of prison officials to permit Nation of Gods & Earths to hold religious services was allowed by an Illinois federal district court to move ahead with his challenges under the 1st Amendment, the Equal Protection Clause, and his official capacity RLUIPA claims.

Free Exercise Defense To Food and Drug Act Indictment Rejected

In United States v. Girod, 2016 U.S. Dist. LEXIS 82365 (ED KY, June 24, 2016), a Kentucky federal district court refused to dismiss an indictment under the Food, Drug and Cosmetic Act against defendant who claimed that his religious faith rejects FDA testing.  Defendant was charged with operating an establishment that manufactured and marketed products for the treatment of skin disorders, cancer, sinus infections, and other ailments, without required registration with the FDA. (See opinion at 2016 U.S. Dist. LEXIS 81047, June 22, 2016). The court held that defendant did not properly raise his free exercise objection, but that even if he had he had not shown that the Act imposes a substantial burden on his exercise of religion.

ADL Issues Annual Audit of Anti-Semitic Incidents

This week the ADL issued its 2015 Audit of  Anti-Semitic Incidents. It showed 941 incidents in the United States last year, a 3% increase from 2014. Fifty-six of the incidents were assaults (compared to 36 in 2014).  Overall, the number of anti-Semitic incidents on college campuses grew to 90 (compared to 47 in 2014). According to the ADL, the number of anti-Semitic incidents peaked in 2006 (1,554 incidents that  year), and has generally been on the decline since then. The Audit adds:

ADL witnessed an explosion of hate online, especially on social media platforms in 2015. While the Audit includes incidents of online anti-Semitism reported to ADL in which an individual or institution is explicitly targeted, it does not count general anti-Semitic expressions online.

HHS Sued Over Allowing Catholic Agencies To Limit Health Services To Unaccompanied Immigrant Minors

The ACLU today filed suit in a California federal district court alleging that officials in the U.S. Department of Health and Human Services have violated the Establishment Clause in allowing the U.S. Conference of Catholic Bishops and its sub-grantees to impose religiously based restrictions on the use of taxpayer funds to aid unaccompanied immigrant minors.  The complaint (full text) in ACLU of Northern California v. Burwell, (ND CA, filed 6/24/2016) alleges in part:

1. There are currently thousands of unaccompanied immigrant minors ... in the legal custody of the federal government.... Many have come to the United States fleeing abuse and torture in their home countries; many have been sexually abused or assaulted ....; some have also been trafficked for labor or prostitution....

2. The federal government is legally required to provide these young people with basic necessities, such as housing, food, and access to emergency and routine medical care, including family planning services, post-sexual assault care, and abortion.

3. To provide young people with these necessities, the government ... issues grants to private entities, including a number of religiously affiliated organizations.

4. ... Defendants authorize a few of these religiously affiliated organizations—such as the United States Conference of Catholic Bishops ... and its subgrantees across the country ... to refuse on religious grounds to provide information about, access to, or referrals for contraception and abortion, even if the young person in their care has been raped.

New York Times reports on the lawsuit.

Orthodox Church Lays Groundwork For Legal Enforcement of Ban on Church Use For Same-Sex Marriages

The Holy Synod of Bishops of the Orthodox Church in America last week adopted a statement (full text) titled Sincerely Held Religious Beliefs Regarding Marriage.  It is apparently designed to allow parishes and monasteries to legally enforce restrictions on use of their facilities for same-sex or transgender marriage ceremonies without courts invoking the ecclesiastical abstention doctrine to refuse to do so.  The introduction to the statement says in part:

The purpose of that statement was to articulate the basic and fundamental beliefs of the Orthodox Church in America regarding marriage and to do so in terms which could be understood and applied by federal, state, and local governmental officials without the necessity of any probing inquiry or interpretation which might require them to transgress limitations imposed on them by the First Amendment.

The statement says in part that "Marriage can only be between two people whose birth sex is male and female." It then calls for each diocese, parish, institution and monastery to adopt a statement declaring:

The (Name of the Parish/Hall/Facility) is the property of the (Name of the Parish/Institution/Monastery), a non-profit church organization located in (Location). Due to sincerely held religious beliefs, documented in the Biblical, dogmatic and canonical documents of the Orthodox Church, we do not permit the (Name of the Parish/Hall/Facility) to be used for the following purposes: events, services or receptions related to non-Orthodox sacraments (including, but not limited to, baptisms, weddings or funerals); non-Orthodox worship services; and partisan political or social rallies.

Texas Supreme Court: Challenge To Home-School Rules Does Not Require Exhaustion of Administrative Remedies

In McIntyre v. El Paso Independent School District, (TX Sup. Ct., June 24, 2016), the Texas Supreme Court in a 6-3 decision held that parents of home-schooled children were not required to exhaust administrative remedies before they challenged the constitutionality of state law provisions mandating curricular standards for home schools.  The parents alleged that their rights to due process, equal protection, and free exercise of religion under the Texas Constitution and U.S. Constitutions were infringed, along with their right to privacy under the Texas Constitution. According to the majority:

The McIntyres claim that the District and its attendance officer unconstitutionally investigated them and filed criminal complaints against them. They do not claim to be aggrieved by the school laws.

The dissent by Justice Green, joined by Justices Johnson and Brown argued:

[T]he Court today ignores our rules of statutory construction and holds that homeschool parents can avoid that exhaustion requirement simply by cloaking their school-law claims in constitutional language.

According to a Christian Science Monitor report on the decision, the parents stopped teaching their children a standard curriculum because they believed they would soon be "raptured."

Indonesian Police Investigate Whether Facebook Post Was Blasphemy

In Indonesia yesterday, Ade Armando, a lecturer in Communications Science at the University of Indonesia, was questioned by the Jakarta Police Special Criminal Investigation Unit after an employee of a media company filed blasphemy charges against Armando.  According to Tempo, the charges stem from a post by Armando on his Facebook page reading: "Allah is not an Arab. Allah will be happy if His verses are being recited with Minang, Ambon, Chinese, Hip hop, Blues style." Apparently the post was in response to a suggestion by Indonesia's Religious Affairs Minister for a Qur'an recitation festival.  Armando says that the post generated a charge that he was likening God to man. Art. 156a of the Indonesia Penal Code prescribes up to 5 years in prison to anyone "who deliberately in public gives expression to feelings ... which principally have the character of being at enimity with, abusing or staining a religion, adhered to in Indonesia...."

9th Circuit Hears Challenge To Ban On Conversion Therapy

The U.S. 9th Circuit Court of Appeals yesterday heard oral argument (video of oral arguments) in Welch v. Brown.  In the case, a California federal district court rejected Free Exercise and Establishment Clause challenges to California's ban on mental health professionals providing "sexual orientation change efforts" (SOCE) for minors. (See prior posting.).  SFGate reports on yesterday's oral arguments.

7th Circuit: Bus Company Wrongly Refused Ad From Pro-Life Health Link

In Women's Health Link, Inc. v. Fort Wayne Public Transportation Corp., (7th Cir., June 22, 2016), the U.S. 7th Circuit Court of Appeals held that Fort Wayne's Citilink wrongly refused to accept an ad that Women's Health Link wanted to place on city buses. Citilink's rules bar ads that "express or advocate opinions or positions upon political, religious, or moral issues."  The proposed ad did not express any such opinion or position, but the health care referral service it advertised is pro-life and so urges alternatives to abortion.  The court held that Citilink's rules are limited to ad content, and do not relate to the advertiser's underlying policies or material that may be on the advertiser's website. It concluded: "Citilink’s refusal to post the ad was groundless discrimination against constitutionally protected speech." Reuters reports on the decision.

Muslim NYPD Officer Wins Temporary Relief Over Beard Length

Once again (see prior posting) the New York City Police Department's grooming rules are being challenged in court.  According to yesterday's New York Daily News, the NYPD on Tuesday imposed a 30-day suspension without pay on a Muslim officer who works as a law clerk for the Department. The officer, Masood Sayed, refused to shave his one-inch long beard. The NYPD had previously allowed him to wear a beard one millimeter in length, but said a longer beard would create problems with proper sealing of department-issued gas masks.  A federal district court yesterday, finding a likelihood of success by Sayed, barred the NYPD from taking further disciplinary action against him until a July 8 hearing.

No Police Liability For Telling Woman To Stop Praying During Investigation

In Sause v. Louisburg Police Department, 2016 U.S. Dist. LEXIS 80243 (D KA, June 17, 2016), a Kansas federal district court dismissed on qualified immunity grounds plaintiff's claim that her free exercise rights were infringed when a police officer investigating a noise complaint told plaintiff to stop praying while the officers were in the middle of talking with her in her apartment about the complaint. According to the court:

While Officer Stevans's instruction to Plaintiff to stop praying may have offended her, it does not constitute a burden on her ability to exercise her religion. Plaintiff fails to provide any allegations that would suggest Officer Stevans's actions coerced her into conduct contrary to her religious beliefs, or that he otherwise prevented her from practicing her religion.