Chaplains' Group Says New Military Policy On Transgenders Poses Religious Freedom Concerns

On June 30, Secretary of Defense Ash Carter announced that the ban on transgender individuals serving in the military is being lifted. (Links to DOD documents.) Those already in the military will be permitted to serve openly and will be provided appropriate medical care and treatment after receiving a diagnosis from a military medical provider indicating that gender transition is medically necessary. (Fact Sheet). The Chaplain Alliance for Religious Liberty issued a statement (full text) yesterday raising questions about the new policy. The statement reacts to a conference call with a Pentagon official, and reads in part:

The official said that such persons will be required to receive a medical statement from a military medical professional that they suffer from gender dysphoria.... 

An endorser on the call asked whether medical professionals who hold a biblical view on human sexuality will be required to violate their consciences and do as these persons demand, and the response was that it is the responsibility of medical professionals to serve military persons. It’s an understatement to say that this raises serious religious liberty concerns,” said Chaplain (COL) Ron Crews.... “The Department of Defense must ensure ... that doctors and nurses who hold to a biblical view of human sexuality can serve in today’s military...."

The official on the conference call went on to say that “mixed genitalia” will be present in military bathrooms, showers, and barracks because service members will be in various stages of change in their sexual identity.... Crews said. “Do we want our sons and daughters to be forced to share showers and sleeping spaces in a ‘mixed genitalia’ environment with no recourse for objections of conscience?”

USCIRF Criticizes China's Restrictions On Muslims During Ramadan

The U.S. Commission on International Religious Freedom yesterday issued a statement (full text) strongly criticizing restrictions imposed by the Chinese government on religious practices during Ramadan, ending with Eid al-Fitr. USCIRF Chair Thomas Reese, S.J. said:

The Chinese government once again has banned government employees, students, and children from fasting, and in some cases praying, during Ramadan.  While restrictions on Uighur Muslims’ religious practices take place year round, they are particularly onerous during Ramadan, giving lie to the government’s claim that Uighur Muslims in Xinjiang enjoy religious freedom.  They do not.  The Chinese government is violating its own constitution and international human rights standards by denying religious freedom to its citizens.

Obama Sends Eid al-Fitr Greetings

President Obama yesterday issued a statement (full text) sending greetings to the Muslim community on the arrival of Eid al-Fitr-- the holiday that marks the end of the month of Ramadan.  The President said in part:

Muslim Americans are as diverse as our nation itself—black, white, Latino, Asian, and Arab. Eid celebrations around the country remind us of our proud history as a nation built by people of all backgrounds; our history of religious freedom and civil liberties, and our history of innovation and strength. These legacies would not be possible without the contributions of Muslim Americans that make our country even stronger.

This past month, our country and the world endured challenges and senseless violence that broke our hearts and tried our souls.  Our prayers are with the hundreds of innocent lives, many of them Muslim, taken during the month of Ramadan in places like Orlando, Istanbul, Dhaka, Baghdad, and Medina. 

Here at home, we’ve also seen a rise in attacks against Muslim Americans. No one should ever feel afraid or unsafe in their place of worship. Many Americans have shared in the experience of Ramadan by volunteering in community service efforts to assist those in need and even fasting a few days with their fellow Muslim American co-workers. In the face of hate, it’s our American values and strength that bring us together to stand in solidarity and protect one another—thereby, making our Nation stronger and safer.

Muslim Americans have been part of our American family since its founding. This Eid, we recommit to protecting Muslim Americans against bigotry and xenophobia, while celebrating the contributions of Muslim Americans around the country, including one of our finest, the People’s Champion Muhammad Ali, to whom we bade farewell this Ramadan. Later this month, Michelle and I will host an Eid celebration at the White House and we look forward to welcoming Americans from around the country to celebrate the holiday.

NYC Human Rights Commission OKs Limited Women-Only Swimming Hours

As reported yesterday by dna info, the New York City Human Rights Commission has granted the city's Parks Department a limited exemption for gender anti-discrimination rules in order to accommodate religious objections to mixed gender swims at two of the city's pools.  Reserving a limited number of hours for women-only swimming to accommodate Hasidic Jewish women had become a controversial issue in recent weeks, with the New York Times last month editorializing against the practice. However now an HRC spokesman says:

Everyone in New York City should have an equal opportunity to enjoy recreation centers.  After weighing the Parks Department’s request for an exemption for limited women-only swimming hours at two Brooklyn pools and balancing the impact on the broader community, the Commission has granted a limited exemption. Maintaining limited women-only swim hours at these pools will allow all women to enjoy the pool without being asked to compromise their religious beliefs or affiliations and will have a minimal impact on other community members’ ability to access the pool.

The Parks Department though will substantially reduce the number of women-only swim hours to four hours per week.

Obergefell Decision Attacked By Suit Demanding License For Man-Object Marriage

As reported in a Liberty Counsel press release, in a rambling 44-page complaint filed last week Mark "Chris" Sevier, a Vanderbilt Law School graduate who was suspended from practice in 2011, filed suit challenging Kentucky's refusal to issue him a marriage license to allow him to marry his laptop computer.  Framed as a challenge to the U.S. Supreme Court's Obergefell decision, the complaint (full text) in Sevier v. Davis, (ED KY, filed 7/1/2016)) alleges in part:

The Plaintiff seek one of two forms of relief: (1) that the state be enjoined from enforcing any laws and policies that prevents him from legally marrying an inanimate object in light of the decision in Obergefell v. Hodge ... and United States v. Windsor ... or alternatively, (2) that all forms of marriage outside the traditional definition of marriage be nullified in reviving the original marriage laws and bans, since laws that try to establish the plausibility of gay rights violates the establishment clause of the first amendment....

If the plaintiffs request to many a machine is frivolous and "removed from reality," then certainly a man's request to many a man in order to call him his lawfully wedded wife in hopes that the society will whomp up more dignity for such marriages is equally "removed from reality" and culturally imperialistically arrogant. It is this kind of moral relativist that causes Middle Eastern Nations to hate the United States so much - because the adaptation of these values are a threat to the integrity of families - and they recognize that.

Sevier has previously filed similar lawsuits in Texas, Florida and Utah (see Above The Law). This time however he named as one of the defendants the equally adamant opponent of same-sex marriage, Rowan County Kentucky Clerk Kim Davis. (See prior posting.)  Alluding to this, the complaint alleges:

Unless total marriage equality is permitted as demanded by the Plaintiff, Mrs. Davis will have a valid cause of action under racketeering statutes against those who conspired to persecute and prosecute her maliciously as an an attempt to force her to convert to their sexually exploitative self-justifying world view.... Allowing the Plaintiff to marry an inanimate object will give those who put her in jail more credibility, since it will show that the Courts really believe that sexual orientation is based on civil rights matter and not an ideological religious one stemming from an attempt to legislate away feelings of shame and inadequacy.

Suit Challenges California's Elimination of Religious and Personal Belief Exemptions From Mandatory Immunization

A number of parents as well as several advocacy groups filed a lawsuit in a California federal district court last week challenging the constitutionality of California's SB 277, a law requiring school students (other than those being home-schooled) to be immunized against ten specific diseases, and removing the state's prior personal belief and religious belief exemptions. The law became effective on July 1. (See prior posting.) The complaint (full text) in Whitlow v. State of California, (SD CA, filed 7/1/2016) says that various plaintiffs have a variety of safety and religious objections to immunizations, including concern that some vaccines are manufactured with cell lines that began with aborted fetal cells. The complaint alleges that the new law violates a number of state and federal constitutional protections:

Defendants' conduct infringes on the Plaintiffs' and their children's fundamental rights, including parental rights, right to bodily integrity, right to informed consent and to refuse medical intervention, right to privacy, and/or right to free exercise of religion, by requiring Plaintiffs to choose between those rights and the right to education.

Los Angeles Times reports on the lawsuit.

UPDATE: The court denied a temporary restraining order, finding there were no allegations of immediate harm. Also there were no efforts to serve defendants. Whitlow v. California, 2016 U.S. Dist. LEXIS 86848 (SD CA, July 5, 2015).

Church Sues Iowa Officials Over Transgender Access Rules

In Iowa yesterday, a conservative Christian church filed a federal lawsuit against officials of the Iowa Civil Rights Commission and against the city of Des Moines alleging that their anti-discrimination laws requiring transgender access to restrooms and changing rooms consistent with gender identity violate its 1st and 14th Amendment rights.  The complaint (full text) in Fort Des Moines Church of Christ v. Jackson, (SD IA, filed 7/4/2016) focuses on the following Iowa Civil Rights Commission's interpretation of its public accommodation rules:

Sometimes. Iowa law provides that these protections do not apply to religious institutions with respect to any religion-based qualifications when such qualifications are related to bona fide religious purpose. Where qualifications are not related to a bona fide religious purpose, churches are still subject to the law’s provisions. (e.g. a child care facility operated at a church or a church service open to the public).

The complaint alleges that the church invites the public to all its services and events, and that even those that are not overtly religious nevertheless "engender other important elements of religious meaning, expression, and purpose." It goes on to allege in part:

13. The Church believes and teaches that maleness or femaleness is designed by God and is tied to biology, chromosomes, physiology, and anatomy.

14. The Church’s religious beliefs mandate that sex is an immutable trait from which springs the natural and healthy desires for physical privacy and modesty in states of partial or full undress, such as in restrooms, showers, and changing rooms.

15. The Church recognizes that some individuals do not identify with their biological sex, and the Church welcomes those individuals, wants to be a blessing to them, and wants to minister to them.

16. The Act and City Code prohibit the Church from issuing statements that might cause individuals to believe that they are unwelcome because of their perceived gender identity.

17. The language of the Act and the City Code are broad enough to include within that prohibition sermons, theological expositions, educational speeches, newsletters or church worship bulletin text, or other statements from the Church and its leaders....

27. Allowing biological males to use facilities reserved for women and girls, and vice versa, violates the Church’s religious beliefs about human sexuality.

Des Moines Register reports on the lawsuit.

UPDATE:  Shortly after the lawsuit was filed, the Iowa Civil Rights Commission revised its interpretive pamphlet (full text) to read:

Places of worship (e.g. churches, synagogues, mosques, etc.) are generally exempt from the Iowa law’s prohibition of discrimination, unless the place of worship engages in non-religious activities which are open to the public. For example, the law may apply to an independent day care or polling place located on the premises of the place of worship.

DC Circuit In Procedural Reversal Allows Religious Discrimination Suit To Proceed

In Al-Saffy v. Vilsack, (DC Cir., July 1, 2016), the U.S. Court of Appeals for the D.C. Circuit reversed the district court and allowed a religious and national origin discrimination claim against both the Department of Agriculture and the Department of State to proceed.  As stated by the court, "Determining whether Al-Saffy’s lawsuit was properly brought requires us to navigate a quagmire of procedural rules."  BNA Daily Labor Report summarizes the court's holding:

Mohamed Tahwid Al-Saffy raised genuine factual issues about whether Agriculture and State were his joint employers when he directed the trade offices in Saudi Arabia and Yemen.... Although Al-Saffy wasn't “officially employed” by the State Department, he reported directly to the ambassadors of Saudi Arabia and Yemen, who are State employees, the court said.....

The court also rejected arguments that Al-Saffy did not file his lawsuit in a timely manner.  Again BNA summarizes the court's holding:

An EEOC order that omits that required information can't trigger the 90-day deadline, the court said. Al-Saffy therefore retained the option to sue at any time after 180 days had elapsed from his filing of the original administrative complaint....

Israeli Court Says Shouting Allahu Akbar Can Amount To Breach of Peace

In Israel last week, a Jerusalem Magistrate's Court ruled that shouting Allahu akbar (God is great) at a group of Jews on the Temple Mount can be the basis for a conviction for disturbing the peace. According to The Algemeiner, the court wrote in part:

[chanting] Allahu akbar during prayer, at a site of prayer and in the spot in the prayer [book] where it is called for does not constitute a breach of the peace, but a fundamental right. However, when those calls are used as a form of demonstration or protest, or as a way of creating a riot or unrest, they do not constitute prayers and are therefore a clear disturbance of the peace.

German Court Says Legal Intern Can Wear Hijab

In Germany last week, a high-ranking law graduate who encountered a ban on wearing her hijab after she had begun her internship with the Bavarian judicial system won a court victory, at least for now.  According to The Local:

The battle started after [Aqilah] Sandhu successfully completed her state exams and started a traineeship with the Bavarian judicial system.

In July 2014, the highest court in the state sent her a letter informing her that she was forbidden from interrogating witnesses or fulfilling other legal duties as long as she continued to wear a headscarf....

She immediately asked for an explanation of the ban, to which she was told “[religious] clothing and symbols can impair the trust in the religious neutrality of the administration of justice.”...

Judge Bernhard Röthinger decided that the young lawyer was in the right, agreeing that there was no legal basis for the state's attack on her religious freedom.

Sandhu is now seeking damages.  However  the state says it will appeal.

Recent Articles of Interest

From SSRN:

• Bernard Jackson, Mediation and Immediacy in the Jewish Legal Tradition, (June 26, 2016).
• Natasha Bakht & Lynda Margaret Collins, The Earth is Our Mother: Freedom of Religion and the Preservation of Aboriginal Sacred Sites in Canada, (Ottawa Faculty of Law Working Paper No. 2016-24, 2016).
• Musa Njabulo Shongwe, Cultural and Religious Relativism as Opposition to the Aims of International Human Rights Law: Revisiting the Universalism vs. Regionalism Debate, (June 29, 2016).
• William B. Turner, The National Masturbators' Task Force; or, The Importance of LGBT Political Organizing for Evaluating LGBT Equal Protection Claims in Competition with Free Exercise of Religion Claims, (Journal of Law and Sexuality, Forthcoming).
• Jennifer Hendry & Melissa L. Tatum, Human Rights, Indigenous Peoples, and the Pursuit of Justice, (34 Yale Law & Policy Review 351 (2016)).
• Sarah Cravens, 'Love's Congruence': A Theological Account of Wisdom for Judges, (Tulsa Law Review, Vol. 51, No. 3, 2015).
• Varun Kumar Aery, Bringing Marriage Equality Overseas: A New Argument for International Human Rights Law, (2 U.C. Davis J. Int'l L & Pol'y 22 (2015)).

From SSRN (Islamic Law):

• Jill Wilson, Linda S. Rosenman, Ben White, Cheryl Tilse & Rachel Feeney, Cultural Considerations in Will-Making in Australia: A Case Study of Islamic or Sharia-Compliant Wills, (Alternative Law Journal, Vol. 41(1), Pp. 23-26, 2016).
• Michelle Limenta, Bayan Edis & Oscar Fernando, Disabling Labeling: The WTO Consistency of the Indonesian Mandatory Halal Labeling Law, (Society of International Economic Law (SIEL), Fifth Biennial Global Conference, Working Paper 2016/08, 2016).
• Asifa Quraishi-Landes, Islamic Constitutionalism: Not Secular. Not Theocratic. Not Impossible, (16 Rutgers Journal of Law and Religion 553 (2015)).
• M.B. Hooker, The Evolution of Singapore's Common Law Fiqh, 1957-2013, (Australian Journal of Asian Law, Vol. 17, No. 1, Article 9, 2016).

From SmartCILP and elsewhere:

• Steven P. Brown, The Girard Will and Twin Landmarks of Supreme Court History, 41 Journal of Supreme Court History 7-20 (2016).
• Carol Goforth, A Corporation Has No Soul, and Doesn't Go to Church: Relating the Doctrine of Piercing the Veil to Burwell v. Hobby Lobby, 67 South Carolina Law Review 73-97 (2015).
• Emilia Justyna Powell, Islamic Law States and the Authority of the International Court of Justice: Territorial Sovereignty and Diplomatic Immunity, 79 Law & Contemporary Problems 209-236 (2016).
• Evan C. Rothera, The Tenacious "Twin Relic": Republicans, Polygamy, and The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 41 Journal of Supreme Court History 21-38 (2016).
• Symposium on LGBT Antidiscrimination Law and Policy After Hobby Lobby. Foreword by David Dinielli; articles by Ira C. Lupu, Andrew Koppelman, Leslie C. Griffin and Elizabeth Sepper. 7 Alabama Civil Rights & Civil Liberties Law Review 1-170 (2015).
• Journal of Law, Religion and State, Vol. 4, Issue 2 (2016) has recently appeared.

Settlement Requires ChristianMingle To Include Same-Sex Date Searching

As reported by the Wall Street Journal, last week a California trial court entered a consent decree settling an Unruh Civil Rights Act class action that had been brought by two gay men against the dating sites ChristianMingle.com, CatholicMingle.com, AdventistSinglesConnection.com and BlackSingles.com. Plaintiffs charged that the sites did not allow users to meet singles of the same sex, thus violating state anti-discrimination laws that require business establishments to offer equal services regardless of sexual orientation. The judgment (full text) in Sparks Network Unruh Act Cases, (CA Super. Ct., June 27, 2016), requires that for the next two years the home pages of the sites must no longer provide the choices of "man seeking woman" and "woman seeking man," but instead only ask whether the user is a Man or Woman.  Those seeking a same-sex match can then search using text searching and profile building tools.  After that, the sites can be reconfigured so long as there is an option for those seeking a same-sex match to do so without indicating they are seeking someone of the opposite sex. The judgment also calls for future changes to create equal matching services.  Finally the judgment calls for defendant to pay damages totaling $18,000 and attorneys fees of $450,000.

Recent Prisoner Free Exercise Cases

In Smith v. Jensen, 2016 U.S. Dist. LEXIS 82909 (WD WI, June 27, 2016), a Wisconsin federal district court rejected claims by plaintiff who was committed as a sexually violent person that his right to freely exercise his Wiccan religion were infringed by a new restrictions on computer use and on computer access to clip art.

In Townsend v. Headley, 2016 U.S. Dist. LEXIS 82947 (ND AL, June 27, 2016), an Alabama federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 83182, May 11, 2016) and dismissed without prejudice the claim by a member of the Moorish Science Temple of America that his free exercise rights were infringed when "my chartel paper I use to open up as Grand-Shiek" (along with other papers, books, magazines and photos) was destroyed as contraband.

In Hardwick v. Senato, 2016 U.S. Dist. LEXIS 83565 (D DE, June 28, 2016), a Delaware federal district court dismissed an inmate's complaint of 4 years' delay in confirming his Jewish faith, and called for plaintiff to file an a mended complaint stating more clearly his claims regarding refusal of a position because he would not work on his Sabbath, and problems receiving kosher meals.

In Bryant v. Woodall, 2016 U.S. Dist. LEXIS 83690 (MD TN, June 28, 2016), a Tennessee federal magistrate judge recommended that inmates who are members of the Odinic or Asatru faith be allowed to move ahead with their attempt to obtain approval for group worship and acquisition of various items used during worship ceremonies.

In Stile v. United States Marshals Services, 2016 U.S. Dist. LEXIS 83747 (D NH, June 27, 2016), a New Hampshire federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 83750, May 9, 2016) and allowed an inmate to move ahead with his complaint that he could not participate in weekly religious services while he was being housed the maximum security disciplinary unit.

In Amaker v. Goord, 2016 U.S. Dist. LEXIS 83976 (WD NY, June 27, 2016), a New York federal magistrate judge (in addition to ruling on a number of non-religion related issues) recommended that an inmate be allowed to proceed with his free expression, but not his RLUIPA, complaint that delivery of incoming mail including Jehovah's Witnesses' magazines was denied. The court recommended dismissal of his complaint regarding occasional denial of food to break the fast during Ramadan, and his claim that denial of call outs was in retaliation for not complying with the prison grooming policy.

In Holland v. City of New York, 2016 U.S. Dist. LEXIS 84586 (SD NY, June 24, 2016), a New York federal district court dismissed on qualified immunity grounds a Muslim inmate's complaint about a strip search because there was no clearly established rule that, during a lockdown or other exigent situation, a correction officer is prohibited from conducting a strip search and viewing the private parts of a Muslim inmate of the opposite sex,

In Brown v. Fischer, 2016 U.S. Dist. LEXIS 85105 (WD NY, June 23, 2016), a New York federal district court allowed a Rastafarian inmate to proceed with his complaint that, while in restraints after an attempt to injure himself, his dreadlocks were forcibly cut while he was told Rastafarians were not permitted in that housing unit.

In Kadonsky v. D'Ilio, 2016 U.S. Dist. LEXIS 86224 (D NJ, July 1, 2016), a New Jersey federal district court allowed an inmate to proceed with his claim that a series of incidents led to ongoing theft and denial of access to his personal religious documents.

In Mehmood v. United States Marshals Services, 2016 U.S. Dist. LEXIS 86082 (D NV, June 30, 2016), a Nevada federal district court held that petitioners had stated a colorable free exercise claim based on the lack of halal-certified meals, but dismissed without prejudice ordering each petitioner to file separately stating allegations specific to him.

In Green v. Director/Secretary, California Department of Corrections and Rehabilitation, 2016 U.S. Dist. LEXIS 86187 (SD CA, June 10, 2016), a California federal magistrate judge recommended dismissing for failure to exhaust administrative remedies a Native American inmate's complaint that his free exercise rights were infringed when his religious items were confiscated and he was denied access to a sweat lodge, and that his 8th Amendment claims be similarly dismissed.

Court Refuses To Apply Ecclesiastical Abstention Doctrine

In Jackson v. Mount Pisgah Missionary Baptist Church Deacon Board, (IL App., June 30, 2016), an Illinois state appeals court refused to apply the ecclesiastical abstention doctrine in a breach of contract suit by a pastor who employment was terminated by his church.  The pastor contended that the church had agreed that his employment would be governed by the church's bylaws.  The court held:

[P]laintiff alleges that defendants failed to (1) provide a written notice of dissatisfaction; (2) hold a special meeting; (3) provide notice of a vote to the members; and (4) have a proper membership vote. To resolve this dispute, we need only look to the plain text of the church’s bylaws and the relevant facts to determine whether or not defendants breached their oral agreement by failing to comply with its bylaws. Since we need not inquire into any religious doctrines, and can address this issue employing neutral principles of civil law, we have jurisdiction to decide whether defendants breached their oral agreement with plaintiff.

The court went on to agree with the trial court's finding that defendants were completely compliant with the bylaws in dismissing the pastor.

Holocaust Survivor and Moral Spokesman Elie Wiesel Dies

Elie Wiesel, eulogized by the Washington Post as the "memory keeper of the Holocaust," died Saturday at age 87.  He was awarded the Nobel Peace Prize in 1986.  President Obama issued a statement (full text) calling Wiesel one of the great moral voices of our time, and in many ways, the conscience of the world." Vice President Biden also issued a statement of condolence (full text) as did Bill and Hillary Clinton (full text) in a statement posted on the Clinton Foundation website.

Court Strikes Down Indiana's So-Called Anti-Discrimination Ban on Abortions

In Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Department of Health, (SD IN, June 30, 2016), an Indiana federal district court issued a preliminary injunction against enforcing new regulation of abortions and abortion practices that were scheduled to take effect today.  One new prohibition (the so-called anti-discrimination provisions) bars abortion even before viability if the reason is the sex of the fetus, the fetus has been diagnosed with Down's syndrome or any other disability, or because of the race, color, national origin or ancestry of the fetus. The second provision requires abortion providers to inform their patients of these restrictions. The third provision alters the way in which healthcare providers must dispose of fetal tissue.  The court concluded:

nothing in Roe, Casey, or any other subsequent Supreme Court decisions suggests that a woman’s right to choose an abortion prior to viability can be restricted if exercised for a certain reason. The right to a pre-viability abortion is categorical.

Focusing on the fetal tissue disposal requirements, the court said that it:

can find no legal support for the State’s position that it has a legitimate state interest in “promoting respect for human life by ensuring proper disposal of fetal remains."

Chicago Tribune reports on the decision.

Alien Tort Suit Against Turkish Cleric Dismissed

In Ates v. Gulen, (MD PA, June 29, 2016), a Pennsylvania federal district court dismissed an Alien Tort Statute lawsuit (as well as related state law claims) that had been brought by three residents of Turkey against Fethullah Gulen, a Muslim cleric from Turkey presently living in Pennsylvania. Plaintiffs are followers of a Muslim sect known as the Dogan Movement which is critical of Gulen's Anatolian version of Islam.  Plaintiffs claim that Gulen, using influence he wielded over police, prosecutors and judges in Turkey, engaged in a campaign of persecution against plaintiffs, ultimately having them arrested and detained in Turkey for up to 20 months. The court elaborated;

Plaintiffs' action revolves around their key allegation that, in April of 2009, Golen "in effect issued instructions to his followers illegally to misuse the Turkish law enforcement system against the members of the Dogan Movement...."

The court concluded that it lacks jurisdiction under the Alien Tort Statute because there had been insufficient evidence of conduct that "touches and concerns" the territory of the United States to overcome the presumption that the Alien Tort Statute does not have extraterritorial application. The court found that the action is also barred by the act of state doctrine. Wall Street Journal reports on the decision.

Federal District Court Strikes Down Mississippi's Anti-LGBT Conscience Protection Law

In Barber v. Bryant, (SD MS, June 30, 2016), a Mississippi federal district court in a stinging 60-page opinion, issued a preliminary injunction against enforcement of Mississippi House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act.  The new law protects a wide variety of conduct, or refusals to provide goods and service, based on a religious or moral belief that: (1) marriage is a union of one man and one woman; (2) sexual relations should be reserved to heterosexual marriage; and (3) gender is an immutable characteristic determined by anatomy and genetics at the time of birth.  The court concluded that the law, which would have gone into effect today, violates both the Establishment Clause and the Equal Protection Clause. Summarizing the history of the bill, the court said:

In physics, every action has its equal and opposite reaction. In politics, every action has its predictable overreaction..... Obergefell has led to HB 1523.

The court summarized its conclusions:

HB 1523 grants special rights to citizens who hold one of three “sincerely held religious beliefs or moral convictions” reflecting disapproval of lesbian, gay, transgender, and unmarried persons.... That violates both the guarantee of religious neutrality and the promise of equal protection of the laws.

The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected – the State has put its thumb on the scale to favor some religious beliefs over others. Showing such favor tells “nonadherents that they are outsiders, not full members of the political community, and . . . adherents that they are insiders, favored members of the political community.” ... And the Equal Protection Clause is violated by HB 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons....

Responding to the state's argument that the law "is justified by a compelling government interest in accommodating the free exercise of religion," the court said that the state had "not identified 'even a single instance' in which Obergefell has led to a free exercise problem in Mississippi." The court added:

In this case, moreover, it is difficult to see the compelling government interest in favoring three enumerated religious beliefs over others....  It is not within our tradition to respect one clerk’s religious objection to issuing a same-sex marriage license, but refuse another clerk’s religious objection to issuing a marriage license to a formerly-divorced person. The government is not in a position to referee the validity of Leviticus 18:22 (“Thou shalt not lie with mankind, as with womankind: it is abomination.”) versus Leviticus 21:14 (“A widow, or a divorced woman, or profane, or an harlot, these shall he not take.”).

BuzzFeed and the Washington Post have additional coverage of the opinion.

Denial of Use Permit Did Not Impose "Substantial Burden" Under RLUIPA

In Livingston Christian Schools v. Genoa Charter Township, (ED MI, June 30, 2016), a Michigan federal district court held that a township's denial of a special use permit did not impose a substantial burden on the religious exercise rights of a Christian school.  The school sought to move to a building currently owned by a church and recently leased to the school. The court said in part:

The term “substantial burden” is not defined in the RLUIPA. The Sixth Circuit in Living Water Church of God v. Charter Twp. of Meridian articulated a standard which requires LCS to show that, “ . . . the government action place[s] substantial pressure on [it] to violate its religious beliefs or effectively bar[s] [it] from using its property in the exercise of its religion[.]” ... While it may be less convenient or more expensive for LCS to operate its school from a different location, the circumstances present here do not constitute a substantial burden.... Because LCS has not “proffered evidence showing that it cannot carry out its church missions and ministries due to the Township’s denial,” it has not established a substantial burden on its free exercise of religion.

The court also rejected the school's 1st and 14th Amendment challenges.

British Tribunal: Deportation of Imam Does Not Violate Islamic Center's Religious Freedom

In Hamat v. Secretary of State for the Home Department, (UK UT, June 6, 2016), Britain's Upper Tribunal (Immigration and Asylum Chamber) rejected a claim that the government is unlawfully interfering with the choice of a religious leader by the Afghanistan Islamic Cultural Centre by deporting its imam who was in the country illegally. Britain's Human Rights Act, Sec. 13, which implements provisions of the European Convention on Human Rights, provides in part:

If a court's determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.

The Tribunal held:

Whilst the effect of the appellant's removal inevitably has the effect of depriving the AICC and its membership of the imam of their choice, this was not the motive of the respondent's actions.... [T]he decision had not interfered with the freedom of choice of the Afghan Muslim community because their actions have not been prompted by a wish to favour one imam over another. The personality of the appellant has not influenced the decision....

The Tribunal went on to hold that Art. 9 of the European Convention on Human Rights (Freedom of thought, conscience and religion) would be violated only if the government's action would "make the free exercise of religion a practical impossibility." Here there are numerous options for the religious organization to recruit a replacement. [Thanks to Law & Religion UK for the lead.]