Top French Court Invalidates Burkini Ban

France's top administrative court-- the Council of State-- today overturned the ban on burkini swim suits imposed by the town of Villeneuve-Loubet.  According to France 24, the court ruled that restrictions on individual liberties are justified only if there is a "proven risk" to public order. Some 30 French towns have adopted similar restrictions on the full-body swimsuit worn by Muslim women, justifying them as a provocation in light of recent terrorist attacks in France.  Today's ruling presumably sets precedent that will invalidate all of these. (See prior related posting.)

UPDATE: Here is the full text (in French) of the Council of State's decision in the case.

Canadian Mounties Approve Hijab As Optional Uniform Choice

Global News reported this week that the Royal Canadian Mounted Police has approved the hijab as a uniform option to encourage Muslim women to consider the RCMP as a career option.  Three types of hijabs were tested before approving one which maximizes officer safety and can be removed quickly if needed. The RCMP since 1990 has allowed Sikh officers to wear a turban. [Thanks to Scott Mange for the lead.]

Atheists Sue Pennsylvania House Over Invocation Policy

Yesterday, American Atheists and Americans United filed a federal lawsuit challenging the practice of the Pennsylvania House of Representatives to allow theists but not non-theists to give opening invocations at daily sessions of the House.  The complaint (full text) in Fields v. Speaker of the Pennsylvania House of Representatives, (MD PA, filed 9/25/2016), contends that the practice violates the Establishment Clause, the free speech and free exercise clauses, and the equal protection clause. American Atheists issued a press release announcing the filing of the lawsuit. AU has an interview with three of the individual plaintiffs in the case.

French Town Official Threatens To Sue Those Circulating Photos of Burkini Ban

In France in recent weeks, a number of seaside towns have barred Muslim women from wearing the "burkini"-- a swimsuit that covers them from knees to chest. (See prior posting.) The bans have variously been supported by reference to the French principle of laïcité (secularism in the public sphere), or by arguments that the burkini represents the "enslavement of women," or that the swimwear is a provocation in light of recent Islamist terrorist attacks in France. Now, photos of police enforcing the ban in Nice which were widely published in European media have become the center of additional controversy as the deputy mayor of Nice yesterday issued a statement (full text in French) threatening to sue anyone who shares the photos online.  He contends that the photos "provoke defamatory remarks and threats" against the police.  As reported by The Verge:

In the image, taken by a French photographer, four male police officers surround the woman and appear to issue a fine. With the men still standing over her, the woman was photographed removing her long tunic top. The agency that released the pictures in the UK said ... that the woman was fined and left the beach, but the office of Nice's mayor denied that she had been forced to remove her clothes, telling AFP that she was only showing the officers that she was wearing a swimsuit under her clothes. Notably, the woman was not wearing a burkini, but a long-sleeved tunic, headscarf, and leggings. The legal basis for Estrosi's lawsuit threats remains unclear.

Investigation Says NYPD Does Not Stick To Guidelines In Surveilling Muslims

The New York Police Department yesterday released an Inspector-General's report titled An Investigation of NYPD’s Compliance with Rules Governing Investigations of Political Activity.  Some 95% of the police investigations reviewed by the IG involved "individuals... predominantly associated with Muslims and/or engaged in political activity that those individuals associated with Islam." Here is an excerpt from the report:

[B]efore NYPD can begin investigating political activity – which could include surveillance within a mosque, church, or synagogue – it must articulate, in writing, the objective basis of need for the investigation and must secure approvals from senior NYPD officials. Further, permission is not open-ended; rather, it runs for a certain period of time, at the end of which NYPD must apply for (and justify) an extension or otherwise end the investigation. The thresholds for obtaining and extending permission in this area are not particularly high. The rules were amended after September 11, 2001, to accommodate the increased threat to the City.

OIG-NYPD’s investigation found that NYPD, while able to articulate a valid basis for commencing investigations, was often non-compliant with a number of the rules governing the conduct of these investigations.

VICE News discusses the NYPD report.

Court Refuses To Dismiss Minister's Suit Saying Ministerial Exception Is Not A Jurisdictional Bar

In McKnight v. Old Ship of Zion Missionary Baptist Church, 2016 Conn. Super. LEXIS 2065 (CT Super., July 28, 2016), a Connecticut appellate court held that it is bound by language in a footnote of the U.S. Supreme Court's Hosanna-Tabor decision that "the [ministerial] exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar."  The Connecticut court thus refused to dismiss for lack of jurisdiction a suit by a minister for lost wages and benefits against the church that previously employed him.

British Report On Islamist Extremism In Prisons

On Monday, Britain's Ministry of Justice released a summary of the main findings of a classified report on Islamist extremism in British prisons. (Full text of Summary).  The study of the issue was commissioned last year and the classified report was presented in March. The study found that Islamist extremism is a growing problem in prisons.  The Summary's section on Muslim Chaplaincy in prisons reports in part:

Throughout the review the team emphasised the importance of faith to prisoners, and its potential to transform lives for the better. Its premise was that Islamism – a politicised, expansionist version of Islam – is more ideology than faith, and is driven by intolerance and anti-Western sentiment.

There are around 69 full time, 65 part-time and 110 sessional Muslim prison chaplains. About two thirds follow the Deobandi denomination, often regarded as a traditional and conservative interpretation.... 

The review concluded that while most chaplains were dedicated members of staff and did good and useful work, there is also evidence of a weak understanding and effective approach to IE.

[Thanks to Law & Religion UK for the lead.] 

Court Enters Findings For Priest As Sanction For SNAP's Refusal To Comply With Discovery Order

Last year, St. Louis Catholic priest Xiu Hui "Joseph" Jiang, who had been charged with abusing a boy, but then had charges dropped, filed a federal lawsuit against a number of defendants, including the boy's parents and the victim advocacy group SNAP.  The suit charged SNAP with conspiracy, defamation and infliction of emotional distress. (See prior postings 1, 2).  As reported by the St. Louis Post-Dispatch, Jiang has been attempting through discovery to obtain information on people who had made complaints against him to SNAP.  The court ordered SNAP to produce that (and other) information, but it has refused.  So Jiang moved for the imposition of sanctions under Rule 37 of the Federal Rules of Civil Procedure.  In Jiang v. Porter, (ED MO, Aug. 22, 2016), a Missouri federal district court judge imposed unusual sanctions:

[T]he Court will direct that the facts alleged supporting elements of plaintiff’s claims against the SNAP defendants have been established for the purpose of this action.... 

[T]he Court will direct that it has been established that the SNAP defendants conspired with one another and others to obtain plaintiff’s conviction on sexual abuse charges and that they entered into this conspiracy due to discriminatory animus against plaintiff based on his religion, religious vocation, race and national origin.

Catholic School's Firing of Guidance Counselor Over Same-Sex Marriage Remains In Litigation

In Drumgoogle v. Paramus Catholic High School, (NJ Super., Aug. 22, 2016), a New Jersey state trial court refused to grant summary judgment to a Catholic high school in a suit by its former dean of guidance who was fired after she entered a same-sex marriage.  The school terminated her under a provision of its collective bargaining contract that allows for-cause termination of a tenured teacher for "violating accepted standards of Catholic morality as to cause public scandal." Plaintiff claims that the school's policy on harassment bars discrimination against her on the basis of marital status and claims her firing violates the New Jersey Law Against Discrimination.  The court concluded that further discovery is required in order to determine whether plaintiff's status requires application of the "ministerial exception" to anti-discrimination laws and whether the dispute is secular or ecclesiastical. The Bergen County Record reports on the decision.

Suit Challenges New HHS Rules On Discrimination Against Transgender Individuals

A lawsuit was filed in a Texas federal court yesterday by a religiously-affiliated hospital network, two medical associations and the states of Texas, Wisconsin, Nebraska, Kentucky and Kansas challenging new rules (full text) adopted by the Department of Health and Human Services in May barring discrimination on the basis of gender identity in the delivery of medical services by, among others, health facilities receiving federal financial assistance.  The 79-page complaint (full text) in Franciscan Alliance, Inc. v. Burwell, (ND TX, filed 8/23/2016), contends that the new regulations infringe free speech, free exercise and due process rights of plaintiffs, as well as their rights under the Religious Freedom Restoration Act. It also contends that the regulations infringe states' rights in various ways.  The complaint focuses particularly on requirements relating to provision of gender transition procedures, saying in part:

On pain of significant financial liability, the Regulation forces doctors to perform controversial and sometimes harmful medical procedures ostensibly designed to permanently change an individual’s sex—including the sex of children. Under the new Regulation, a doctor must perform these procedures even when they are contrary to the doctor’s medical judgment and could result in significant, long-term medical harm. Thus, the Regulation represents a radical invasion of the federal bureaucracy into a doctor’s medical judgment....

The Regulation not only forces healthcare professionals to violate their medical judgment, it also forces them to violate their deeply held religious beliefs. Plaintiffs include the Christian Medical & Dental Associations ... and Franciscan Alliance, a network of religious hospitals founded by the Sisters of St. Francis of Perpetual Adoration. These religious organizations are deeply committed to the dignity of every human person, and their doctors care for everyone with joy and compassion. They eagerly provide comprehensive care to society’s most vulnerable populations, but their religious beliefs will not allow them to perform medical transition procedures that can be deeply harmful to their patients.....

Texas Attorney General Ken Paxton issued a press release announcing the filing of the lawsuit, and saying in part:

This is the thirteenth lawsuit I have been forced to bring against the Obama Administration’s continued threats on constitutional rights of Texans. The federal government has no right to force Texans to pay for medical procedures designed to change a person’s sex.

Becket Fund which represents the medical association plaintiffs also issued a press release.  Texas Tribune, reporting on the lawsuit, says that the case has been assigned to the same judge who earlier this week blocked federal Guidelines on transgender students' rights under Title IX from going into effect. (See prior posting.)

9th Circuit: California Reparative Therapy Ban OK Under 1st Amendment Religion Clauses

In Welch v. Brown, (9th Cir., Aug. 23, 2016), the U.S. 9th Circuit Court of Appeals rejected facial free exercise and Establishment Clause challenges to California's ban on state-licensed mental health professionals providing “sexual orientation change efforts” for patients under 18.  The court concluded that the law does not excessively entangle the state with religion because it only applies within the confines of the counselor-client relationship. The state conceded that the law does not apply to clergy in their roles as pastoral counselors providing religious counseling to congregants. The court also rejected the contention that the law has the primary effect of inhibiting religion, saying in part:

although the scientific evidence considered by the legislature noted that some persons seek SOCE for religious reasons, the documents also stressed that persons seek SOCE for many secular reasons.

[Thanks to How Appealing for the lead.]

Amici Tell SCOTUS of Importance of ERISA Church Plan Cases

On Aug. 12 and 15 several amicus briefs were filed by religious advocacy groups with the U.S. Supreme Court supporting petitions for certiorari in two cases involving the question of whether ERISA's "church plan" exemption applies to retirement plans of religiously-affiliated healthcare organizations where the plans were not initially established by a church. If the exemption does not apply, the plans will be underfunded by some $3.5 billion.  The cases are Saint Peter’s Healthcare System v. Kaplan (see prior posting) and Advocate Health Care Network v. Stapleton (see prior posting).  BNA Daily Report for Executives (Aug. 18) [subscription required] describes arguments put forward by amici:

Several of the briefs emphasize the huge universe of workers that could be affected by a Supreme Court decision on this topic. According to the Thomas More Society's brief, this issue affects the retirement benefits of “millions of employees across the country who work for nonprofit religious organizations,” including the 750,000 people who work for Catholic hospitals alone.

Further, the groups argue that employees at other organizations, including schools, nursing homes and day care centers, could be affected by a high court ruling. That is because many of these organizations rely on the same statutory exemption in administering their pension plans.

First Amendment rights are a recurring theme in several briefs, which argue that the appellate court decisions against hospital pension plans infringe on religious liberty.... 

Taking a different approach, the Becket Fund also argues that forcing faith-connected hospitals to comply with federal pension rules could threaten their ability to “invest retirement funds morally” and use pension assets to “promote social justice” and “avoid supporting evils.”

In an unexpected twist, the Church Alliance predicts that denying religious exemptions to hospital pension plans could result in “cascading securities law violations” by forcing the plans into the purview of the Investment Company Act of 1940.

Links to all the amicus briefs are available from the SCOTUSblog case pages (case page for Advocate Health Care; case page for Saint Peter’s Healthcare).

In Discovery, Most Documents Fail Clergy-Penitent Privilege

In McFarland v. West Congregation of Jehovah's Witnesses, Lorain, Ohio, Inc., (OH App., Aug. 22, 2016), an Ohio appeals court affirmed in part and reversed in part a trial court's rejection of the clergy-penitent privilege as the basis for a Jehovah's Witness congregation to refuse to produce 19 specific documents sought in discovery by a plaintiff suing over alleged sexual abuse as a minor by another church member.  The appeals court found that only four of the documents met the statutory criteria for the clergy-penitent privilege.  Communications between bodies of church elders did not qualify for the privilege.  The court rejected the argument that production of the unprivileged documents would expose the church's internal discipline procedures and beliefs regarding repentance, mercy, and redemption to external, secular scrutiny in violation of the 1st Amendment.

Court Issues Nationwide Injunction Preventing Enforcement of Title IX Guidance on Transgender Rights

In a decision handed down yesterday, a Texas federal district court issued a preliminary injunction applicable nationwide barring the federal government from enforcing Guidelines issued earlier this year interpreting Title IX as barring discrimination by schools on the basis of gender identity.  In particular the Guidelines took the position that transgender students must have access to restrooms and locker rooms consistent with their gender identity.   (See prior posting.) In State of Texas v. United States, (ND TX, Aug. 21, 2016), a Texas federal district court in a suit brought by 13 states held that the Department of Education's Guidance incorrectly interpreted its regulation (34 CFR 106.33) on sex-segregated restrooms and locker rooms. The court said in part:

It cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by DOE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth.... Additionally, it cannot reasonably be disputed that DOE complied with Congressional intent when drawing the distinctions in § 106.33 based on the biological differences between male and female students....

The court held additionally:

The Guidelines are, in practice, legislative rules—not just interpretations or policy statements because they set clear legal standards.... As such, Defendants should have complied with the APA’s [Administrative Procedure Act's] notice and comment requirement. Permitting the definition of sex to be defined in this way would allow Defendants to “create de facto new regulation” by agency action without complying with the proper procedures.

ABC News reports on the decision.

Religious Worker's Challenge To Immigration Law Interpretation Dismissed On Jurisdictional Grounds

Singh v. Johnson, (SD IN, Aug. 17, 2016), is a suit in federal district court for declaratory relief and an injunction by an Indian citizen who is in the U.S. on an R-1 nonimmigrant religious worker visa working for a Sikh Gurdwara in Indiana. Plaintiff sought to adjust his status to become a lawful permanent resident.  USCIS denied his application for change of status because, it contended, his receipt of room and board, donations, and gifts from Sikh temples other than his employer amounted to unauthorized employment in the U.S. Plaintiff contends that this definition of unauthorized employment is inconsistent with law and violates his free exercise rights.  An Indiana federal district judge dismissed plaintiff's complaint for lack of jurisdiction, saying:

The immigration judge presiding over the Plaintiff’s removal proceeding has de novo review of the USCIS’s denial of the Plaintiff’s I-485 Application....  Thereafter, if the immigration judge’s decision is unfavorable to the Plaintiff, he may appeal to the Board of Immigration Appeals.... And, if the Board of Immigration Appeals affirms an immigration judge’s unfavorable decision, the Plaintiff may appeal to the Seventh Circuit the results of his removal proceeding and any constitutional claims or questions of law.

Recent Articles and Book of Interest

From SSRN:

• Stephen R. Munzer, Secularization, Anti-Minority Sentiment, and Cultural Norms in the German Circumcision Controversy, (37 University of Pennsylvania Journal of International Law 503-81 (2015)).
• Ran Hirschl, Early Engagements with the Constitutive Laws of Others: Possible Lessons from Pre-Modern Religious Law, (Law & Ethics of Human Rights 10 (2016): 71-108).
• Teri Dobbins Baxter, From Influenza to Ebola: Legal and Business Implications of Employer-Mandated Vaccination Policies, (July 25, 2016).
• Kim H. Pearson, Innate Religious Identity, (84 UMKC L. Rev. 803 (2016)).
• Roderick M. Hills, Jr., Decentralizing Religious and Secular Accommodations,(Institutionalizing Rights and Religion: Competing Supremacies, Leora F. Batnitzky & Hanoch Dagan eds., (Cambridge University Press, 2017 Forthcoming)).
• Amos A. Israel-Vleeschhouwer, Jewish Law and Space: Symbolic Fencing (Eruv), Public Presence (Parhesia) and Borders, (August 15, 2016).
• Andrew Koppelman, Kathleen Brady, the Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence, (Journal of Religion, Forthcoming).

From SSRN (Islamic Law);

• Adnan Zulfiqar, Revolutionary Islamic Jurisprudence: A Restatement of the Arab Spring, (New York University Journal of International Law and Politics, Forthcoming).
• Michelle Burgis-Kasthala, How Should International Lawyers Study Islamic Law and Its Contribution to International Law?, (RegNet Research Paper No. 2016/113 (2016)).
• Waeibrorheem Waemustafa & Suriani Sukri, Syari’Ah Compliance and Lawful Profit Making Dilemma in Malaysian Islamic Banks, (August 16, 2016).

From SmartCILP:

• Nathan Lee, Convert or Die: Forced Religious Conversions and the Convention on the Prevention and Punishment of the Crime of Genocide, 47 Georgetown Journal of International Law 573-606 (2016).

New Book:

• Thomas C. Berg, The State and Religion in a Nutshell, Third Edition, (West, Sept. 2016).

Recent Prisoner Free Exercise Cases

In Aref v. Lynch, (DC Cir., Aug. 19, 2016), the D.C. Circuit Court of Appeals, in an opinion involving a number of other issues as well, rejected the claim of an inmate convicted of supporting terrorism that he was denied transfer out of the restrictive Communications Management Unit as retaliation for a sermon he gave as part of a Muslim prayer meeting.

In Shaw v. Upton, 2016 U.S. Dist. LEXIS 107690 (SD GA, Aug. 15, 2016), a Georgia federal magistrate judge recommended that an inmate be allowed to move ahead with most of his claims contending that he was denied meals in accordance with the tenets of his religion. UPDATE: The court adopted the magistrate's recommendations, 2016 U.S. Dist. LEXIS 128232, Sept. 20, 2016.

In Thomas v. Lawler, 2016 U.S. Dist. LEXIS 108143 (MD PA, Aug. 16, 2016), a Pennsylvania federal district court held on various grounds that a Muslim inmate's rights under the Americans With Disabilities Act were not infringed when Friday Jumu'ah services were held in the multi-faith chapel accessible only by walking four flights of steps.

In Sanford v. Madison County, 2016 U.S. Dist. LEXIS 108734 (SD IL, Aug. 17, 2016), an Illinois federal district court dismissed some, but not all, defendants in a suit by a Muslim jail inmate complaining that he was denied Jumu'ah prayer services and was denied religious counseling on a equal basis with Christian inmates.

In Ryan v. Graham, 2016 U.S. Dist. LEXIS 108976 (ND NY, Aug. 17, 2016), a New York federal district court adopted a magistrate's recommendations and dismissed an inmate's complaint over rules that limited him to having eleven religious books at one time.

In Epps v. Hein, 2016 U.S. Dist. LEXIS 109247 (SD GA, Aug. 17, 2016), a Georgia federal magistrate judge allowed an inmate to proceed with his RLUIPA challenge to the denial of a Rastafarian diet.

In Deangelis v. Cowels, 2016 U.S. Dist. LEXIS 109785 (D CT, Aug. 18, 2016), a Connecticut federal district court dismissed, with leave to amend, an inmate's complaint that his free exercise rights were infringed when his religious gold cross and gold necklace were taken from him and subsequently lost.

In Brown v. Cox, 2016 U.S. Dist. LEXIS 110284 (ED CA, Aug. 18, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that his free exercise rights were infringed when he was denied access to his religious beads and cross while temporarily in administrative segregation.

In White v. Baker, 2016 U.S. Dist. LEXIS 110873 (D NV, Aug. 19, 2016), a Nevada federal district court allowed an inmate to move ahead with his suit seeking a "sacred Heraklean diet" (high protein natural and organic cuisine) and the right to possess two religious rings and a necklace, but dismissed his claims seeking group worship and official recognition of his religion.

In Carey v. Mason, 2016 U.S. Dist. LEXIS 110879 (MD AL, Aug. 18, 2016), an Alabama federal magistrate judge, among other issues, dismissed a Buddhist inmate's complaint that the warden tore up his bible (Diamond Sutra) and threw it in the trash.

Moorish-American Religious Defense To False Identity Charge Fails

Thomas v. Commonwealth, (VA App., Aug. 16, 2016), involved an appeal by defendant of his conviction for providing a law enforcement officer a false identity with intent to deceive.  Defendant, who was driving with a suspended license, told police during a traffic stop that his name was "Barry Thomas-El." Police were unable to locate information on anyone with that name from the Department of Motor Vehicles, and only later identified him as "Barry Nelson Thomas, Jr."  At the trial court level, defendant attempted to raise a religious free exercise defense, arguing that use of the suffix "El" was an exercise of his religious beliefs as a Moorish-American national. The trial court excluded evidence relating to this defense.  The Virginia Court of Appeals affirmed, largely on procedural grounds, saying in part:

At the motion in limine hearing, appellant’s counsel argued that adding the suffix “El” to appellant’s name was an act of free exercise noting his “rebirth” within the Moorish American community.... However, appellant’s counsel failed to properly proffer what appellant’s testimony would have been at trial.

The court also upheld the trial court's exclusion of several documents relating to defendant's claim of Moorish-American citizenship, saying:

As the documents are political, rather than religious, in nature, they lack any tendency to make the existence of a religious imperative more or less probable. As such, they are irrelevant and thus not admissible.

EEOC Sues Over Firing of Muslim Employee

The EEOC announced this week that it has filed a Title VII religious discrimination lawsuit against KASCO, a St. Louis-based company that manufactures and sells butcher supplies and meat processing equipment. The press release explains:

According to EEOC's lawsuit, Latifa Sidiqi had worked for KASCO since 2008, most recently as a buyer. After she began more seriously practicing her religion in 2012, a supervisor and others began making derogatory comments about her fasting during Ramadan, wearing a hijab, and her native country, Afghanistan. The agency charged that Sidiqi was fired during Ramadan 2013 because of her religion and national origin, and because she complained about her supervisor's treatment.

No-Fault Divorce Does Not Violate Hindu Husband's Free Exercise Rights.

In Bhandaru v. Vukkum, (KY App., Aug. 19, 2016), a Kentucky appeals court rejected an argument that the state's no-fault divorce law violates the free exercise rights of a Hindu husband.  The husband argued that his Hindu religion only permits divorce if some grounds for divorce are stated. The court concluded however that the divorce law is a law of general applicability and the state has a rational basis for it.  It thus survives a 1st Amendment challenge and the free exercise provisions of the Kentucky constitution offer no greater protection than those in the 1st Amendment.  The court also rejected the argument that under notions of comity it should have applied the Indian Hindu Marriage Act.