Church Entitled To Hearing On Religious Liberty Defense To Day Care Licensing

In Our Lady of Victory Catholic Church v. Department of Human Services, (PA Commonw. Ct., Oct. 31, 2016), a 3-judge panel of the Pennsylvania Commonwealth Court held that the Pennsylvania Department of Human Services has authority to issue cease and desist orders to enforce its regulations requiring any daycare center that cares for seven or more children to obtain a certificate of compliance.  However the court remanded for an evidentiary hearing the church's claim that requiring a certificate of compliance for its preschool (which it claims is part of its religious ministry) infringes its free exercise rights under the federal and state constitutions and under Pennsylvania's Religious Freedom Protection Act.  The Legal Intelligencer reports on the decision.

Recent Prisoner Free Exercise Cases

In Omaro v. O'Connell, 2016 U.S. Dist. LEXIS 153846 (WD NY, Nov. 4, 2016), a New York federal district court granted summary judgment to a Muslim inmate, finding that his free exercise rights were infringed when he was wrongly removed from the Ramadan call out meal schedule. The court referred the case to a magistrate judge for a settlement conference on damages.  The court dismissed plaintiff's equal protection challenge.

In Holmes v. Engleson, 2016 U.S. Dist. LEXIS 155201 (ND IL, Nov. 9, 2016), an Illinois federal district court refused to dismiss an inmate's complaint that his dreadlocks and beard that he wore for religious reasons were shaved against his will.

In Simmons v. Hulette, 2016 U.S. Dist. LEXIS 155721 (ND CA, Nov. 9, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that he has been denied a traditional Lakota Inipi Purification Ceremony, access to a drum circle and talking circle, medicine and materials for ceremonies and a competent spiritual adviser.

In Cooper v. Bower, 2016 U.S. Dist. LEXIS 155988 (WD KY, Nov. 9, 2016), a Kentucky federal district court allowed an inmate to move ahead with his complaint that he was not allowed to receive a copy of the Qur'an that had been purchased for him by a relative instead of from funds in his inmate account.

In Yaacov v. Mohr, 2016 U.S. Dist. LEXIS 156199 (ND OH, Nov. 10, 2016), an Ohio federal district court dismissed a Jewish inmate's complaint that he is unable to obtain kosher vegan meals.

In Parkerson v. Ferns, 2016 U.S. Dist. LEXIS 156210 (D OR, Nov. 10, 2016), an Oregon federal district court dismissed for failure to exhaust administrative remedies and inmate's complaint that he was suspended from receiving kosher meals because he ate non-kosher food from the commissary as well.

In Tilmon v. Keith, 2016 U.S. Dist. LEXIS 156512 (WD LA, Sept. 14, 2016), a Louisiana federal magistrate judge dismissed a Muslim inmate's complaint that in 2012 he was unable to observe Eid ul Adha. However he was permitted to proceed with his claim that unwanted exposure to second-hand tobacco smoke and synthetic marijuana smoke interfered with his ability to pray.

Muslim Nanny Sues Actor Couple

According to The Wrap, in a suit filed in Los Angeles Superior Court on Thursday, Sarah Alaseri (a young Muslim woman) is seeking damages for religious discrimination (as well as sexual harassment) against actor Steve Howey and his wife Sarah Shahi.  Alaseri was employed by the couple as a nanny. The suit claims that Howey and Shahi ridiculed Alaseri's religious beliefa and practices-- including mocking her for dressing modestly, fasting and wearing a headscarf when praying.

More On Presidential Voting By Religious Groupings

Earlier this week, the Pew Research Center, using exit polls, published How the faithful voted: A preliminary 2016 analysis.  It breaks down the vote in last Tuesday's Presidential election by faith group.  The group giving Donald Trump the largest percentage-- 81%-- of their vote were described in the survey as "White born-again/ evangelical Christians". The category overlaps some of the other categories reported: Protestant/ other Christian- 58%; White Catholic- 60%. Groups giving Trump the lowest percentage of their votes were: Jewish- 24%; Hispanic Catholic- 26%; Religiously unaffiliated- 26%.

In the same vein, yesterday the New York Times posted an article titled Religious Right Believes Donald Trump Will Deliver on His Promises, saying in part:

Now that he has won, evangelical leaders say they are confident Mr. Trump will deliver on the political promises he made to them. These include appointing a conservative to the Supreme Court, defunding Planned Parenthood, protecting businesses that refuse to provide services for same-sex weddings and rescinding the mandate in the Affordable Care Act that requires insurance coverage for birth control.

And with Gov. Mike Pence of Indiana, an evangelical with a record of legislating against abortion and same-sex marriage, as vice president, Christian leaders say they feel reassured they will have access to the White House and a seat at the table.

U.S. Muslim Leaders Urge Messages of Hope At Friday Prayers

A press release yesterday from CAIR urged Muslim prayer leaders and imams to address post-presidential election anxieties in sermons during their regular Friday prayer services today. An outline of talking points for leaders prepared by Sh. Omar Suleiman, president of the Yaqeen Institute for Islamic Research in Texas, was included. Here are some excerpts:

We have to come to terms with the idea that will be faced with some level of hardship with our faith regardless of the circumstances. Part of ending harm towards the community collectively is individually being ready to dispel stereotypes. In Makkah, the public display of the faith was the protest of the Companions. We must also continue to publicly be unapologetically Muslim....

It’s very easy for us to say that they all hate us, and there is no good left in the people. Instead let us remind ourselves that the Prophet (peace be upon him) prayed for the people most sincerely when their rejection for him was most severe. He prayed for them at Ta’if when they struck him in the face, and at Uhud when they almost killed him....

The under 25 voters were almost unanimous in expressing what type of America they wanted to live in. And it is not one of bigotry or xenophobia. We have to make sure we continue to invest in the younger generation so that they don’t repeat the mistakes of the past (and in this case, the present). We must continue to build institutions that will stand for justice and peace for generations to come. The Day of Judgment has not come yet, and even if it had, we would still be required to finish planting what is in our hands.

Suit Challenges University's Service Learning Requirements

A suit filed yesterday in a Wisconsin federal district court challenges the constitutionality of the University of Wisconsin, Eau Claire's service learning program.  All students must complete 30 hours of community service in order to graduate; however activities that directly involve promoting religious doctrine, proselytizing, or worship are not eligible for credit. The complaint (full text) in Liebl v. Schmidt, (WD WI, filed 11/10/2016), alleges that the two students who are bringing suit were not allowed to count time teaching religious education classes to children as community service, while students could receive service-learning credit for a variety of activities that involve non-religious instruction or non-religious persuasion and recruitment. The suit alleges that this policy violates plaintiffs' 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.

Chabad Files RLUIPA Lawsuit In New Jersey Town

North Jersey.com reports on a RLUIPA lawsuit filed Nov. 1 by an Orthodox Jewish Chabad group against the mayor, property maintenance officer and Zoning Board of Adjustment of Woodcliff Lake, New Jersey. The suit challenges denials of variances and waivers by the zoning board which Chabad sought in order to build a house of worship on its property. According to the report:

The lawsuit ... allege[s] that the congregation has been the victim of a "targeted effort" to block them from developing a house of worship in Woodcliff Lake - something that the congregation alleges has caused "unjustified fear" and "prejudice" of Orthodox Jews. Chabad also alleges that Mayor Carlos Rendo made various statements that Chabad was attempting to "turn the borough into a little Jerusalem" and that the "town will be littered with black hats walking the town on Saturdays," (a reference to Hassidic Orthodox Jews.)

10th Circuit: Ten Commandments Monument Violates Establishment Clause

In Felix v. City of Bloomfield, (10th Cir., Nov. 9, 2016), the U.S. 10th Circuit Court of Appeals agreed with the district court (see prior posting) that a Ten Commandments monument erected by a former city councilman on the Bloomfield, New Mexico city hall lawn violates the Establishment Clause. Among other things, the court held that plaintiffs who are polytheistic Wiccans demonstrated sufficient injury to have standing even though they only saw the monument and never read the text on it. The court went on to hold:

The apparent purpose and context of the Monument’s installation would give an objective observer the impression of official religious endorsement. In arriving at this conclusion, we examine the text of the Monument, its placement on the lawn, the circumstances of its financing and installation, and the timing of this litigation.

It held that disclaimers on and around the monument failed to "negate the more powerful statement of endorsement conveyed by a decision to place the Monument on government land." Nor did the later addition of a number of secular monuments cure the violation.

Down-Ballot Results of Interest

In a pre-election post I identified several down-ballot contests that were of interest to those following religious issues. Here are the results from yesterday in those contests:

1. Oklahoma Question 790 that would have amended the state constitution to eliminate the ban on use of public funds to support religious institutions was defeated-- 43% yes and 57% no.
2. Missouri Constitutional Amendment 3 that would have imposed a cigarette tax to fund early childhood initiatives and would have exempted grants in the program from the ban on use of funds to support religious entities was defeated 59% to 41%.
3. Montana Supreme Court candidate Kristen Juras whose conservative Christian religious beliefs became a campaign issue was defeated 56% to 44%.
4. Ohio District 37 state legislature candidate Casey Weinstein sho had been a plaintiff in a suit against the U.S. Air Force Academy alleging Christian proselytizing lost 57% to 43%.
5. In Missouri, Republican Attorney General candidate Josh Hawley who disagrees with the state's position in the Trinity Lutheran case now before the U.S. Supreme Court in which the state denied a playground grant to a church on state constitutional grounds won 59% to 41%.

Some Early Press Reactions To Trump's Surprise Victory

For Religion Clause readers, here are some early press reactions to Donald Trump's unexpected win in yesterday's presidential election that may be of interest:

• Evangelicals Hand Victory To Donald Trump (Christianity Today).
• Trump's Win, the Greatest Victory for anti-Semitism in America Since 1941 (Haaretz).
• Mixed reaction to Trump from prominent Muslim Americans (AlJazeera).
• Vatican prays Trump presidency will promote peace amid conflict (Catholic News Agency).
• The End of Roe v. Wade Is Now a Real Possibility (Cosmopolitan).

Priest's Anti-Abortion Video Raises Questions On Limits For Advocacy

On Sunday just ahead of Tuesday's presidential election, Rev. Frank Pavone, national director of the activist anti-abortion group Priests for Life, posted a live video on Facebook which, as reported by the Washington Post, "raised questions for some about what is appropriate antiabortion and political activism in the church."  The video in which Pavone endorsed Donald Trump for president because of the anti-abortion Republican platform showed an actual aborted fetus on the altar. Pavone said the fetus was given to him for burial by a pathologist. In a post on the blog of the Archdiocese of New York, a spokesman strongly criticized Pavone, saying in part:

A human being has been sacrificed and the altar of God has been desecrated, all for politics. Everyone who respects the dignity of every human person should reject and disavow this atrocity.

A post on Friendly Atheist blog includes a link to Pavone's full 44 minute video.

Another Court Challenge To HHS Rules On Medical Services For Transgender Individuals

Following on a lawsuit filed in August (see prior posting), yesterday a lawsuit was filed by different plaintiffs challenging new rules (full text) adopted by the Department of Health and Human Services in May.  The rules bar discrimination on the basis of gender identity in the delivery of medical services by, among others, health facilities receiving federal financial assistance.  The complaint (full text) in Religious Sisters of Mercy v. Burwell, (D ND, filed 11/7/2016), filed by a religious order, a health care system, a Catholic university with a nursing program, and the state of North Dakota, alleges that the new rules violate various statutory and constitutional provisions. It says in part:

The Regulation not only forces healthcare professionals to violate their medical judgment, it also forces them to violate their deeply held religious beliefs.... The Regulation also undermines the longstanding sovereign power of States such as North Dakota to regulate healthcare, ensure appropriate standards of medical judgment, and protect its citizens’ constitutional and civil rights.

Becket Fund issued a press release announcing the filing of the lawsuit.

Religion Clause Feed On Social Media Is Back

To Readers Who Follow Religion Clause on Twitter, Facebook or Google+--

I discovered only today that the company providing automatic posting of Religion Clause feed to various social media sites closed its doors on Nov. 1 without sending me notice. (I guess that's what happens when one uses free online providers :).)  I now have a new provider so that Religion Clause is back on social media.

Some Issues of Religion In Tomorrow's Down-Ballot Contests

Religion has not dominated very many down-ballot contests in tomorrow's election.  However for those interested in religious liberty and church-state issues, there are several contests to watch. [Thanks to Don Byrd at Blog From the Capital for keeping an eye on these down ballot issues.]

1. Oklahoma State Question 790 asks voters to repeal provisions in Oklahoma's state constitution (Art. 2, Sec. 5) that prohibits the use of public funds or property for the direct or indirect benefit of any religion or religious institution.  This section of the state constitution was the basis for the Oklahoma Supreme Court to order removal of a Ten Commandments monument.
   
2. Missouri Constitutional Amendment 3 would increase the tax on cigarettes to create an Early Childhood Health and Education Trust Fund that will make grants to both public and private entities.  Part of the amendment excludes grant funds distributed from the Trust Fund from the restrictions of Missouri Constitution Art. IX, Sec. 8 which prohibits use of public funds to support any religious creed, sectarian purpose or religious educational institution. The proposed Amendment also bars use of trust funds for any abortion services not necessary to save the life of the mother.
   
3. The conservative Christian religious beliefs of one of the candidates for Justice of the Montana Supreme Court-- attorney and law professor Kristen Juras-- has become a campaign issue. (See prior posting.)
   
4. In a contest for state legislature in Ohio, Casey Weinstein who is running in House District 37 (Summit County), has been challenged over a lawsuit filed on his behalf when he was an Air Force Academy cadet. According to the Cleveland Plain Dealer, an ad sent out by state Republican Party focuses on a lawsuit in which Weinstein was one of the plaintiffs objecting to alleged Christian proselytizing at the Air Force Academy. Weinstein's father Mikey Weinstein is head of the Military Religious Freedom Foundation that filed the suit.
   
5. The result of the state Attorney General contest in Missouri may impact a major free exercise case currently before the U.S. Supreme Court-- Trinity Lutheran Church v. Pauley. At issue is the denial-- because of Missouri's Blaine Amendment-- of a state Playground Scrap Tire Surface Material Grant that would have allowed a church to resurface a playground at its day care and preschool facility. The state, represented by the current Democratic state Attorney General Chris Koster (who is now a candidate for governor), is defending the denial. However Republican Attorney General candidate Josh Hawley sides with the church and filed an amicus brief in support of of it on behalf of a Pentecostal Christian denomination. (US Law Week, Nov. 2, reports).

Watching Tomorrow's Presidential Election Results Through Denominational Lenses

For election watchers who are also concerned about religious issues, the results of tomorrow's Presidential contest will provide interesting glimpses into the reactions of several religious groups to each of the candidates.  Here are trends to watch:

1. Evangelical Christians have been divided over supporting Donald Trump, with some supporting him and others part of the "never Trump" movement (see Washington Times, Nov. 6). Trump has emphasized his support for repeal of the Johnson Amendment that bars campaigning by religious non-profits, and the pro-life views of individuals he will nominate to the Supreme Court. (Christian Post, Nov. 4).
2. Muslim Americans have been rattled by rhetoric from Donald Trump that is perceived to be anti-Muslim.  Voting participation is likely to be high among American Muslims. (see AlJazeera's Nov. 6 report on voting in Dearborn, Michigan).
3. Many Mormons in America are uneasy with Donald Trump's policies and his personal rectitude.  This has made third party candidate Evan McMullin, who is a Mormon (and whose running mate Mindy Finn is Jewish), a viable contender in Utah. (Salon, Oct. 14).
4. Many Jewish Americans are alarmed by the anti-Semitism disseminated by some Trump followers and the alleged anti-Semitic "dog-whistles" in Trump's own campaign statements and ads. (Nov. 6 CBS News report).  However others in the Jewish community believe that Trump will be a stronger supporter of Israel, or at least of Israel's current government policies. (Op Ed Nov. 7 from The Forward).  Also it has not gone unnoticed by the Jewish community that both Chelsea Clinton and Ivanka Trump are married to Jewish husbands. (Ivanka has converted to Judaism). (Oct. 2 JTA article).
5. Conservative Catholics were offended by an e-mail exchange between Clinton Campaign Chairman John Podesta, his Communications Director Jennifer Palmieri and supporter John Halpin. The e-mail was disclosed by Wikileaks. (Oct. 18 Op-Ed from Cincinatti.com). UPDATE: However many see broader remarks by Pope Francis as being anti-Trump. (Irish Central, Nov. 7).

Recent Articles and Book

From SSRN:

• Sally Tyler, Of Temples and Territory: The ICJ's Preah Vihear Decision and Implications for Regional Dispute Resolution, (University of the District of Columbia Law Review, Forthcoming).
• Shaun  Alberto de Freitas, Doctrinal Sanction and the Protection of the Rights of Religious Associations: Ecclesia De Lange v The Presiding Bishop of the Methodist Church of Southern Africa, (Potchefstroom Electronic Law Journal, Vol. 19, 2016).
• Nancy Levit, After Obergefell: The Next Generation of LGBT Rights Litigation, (84 UMKC L. Rev. 605 (2016)).
• Ashraf Booley, The Rights and Freedoms of Moroccan Women: Has the 2004 Reforms Benefited Moroccan Women?, (Potchefstroom Electronic Law Journal, Vol. 19, 2016).
• R.P.C.R. Rajapakse & Hiruni Nirmali Kaushala, Islamic Banking in Sri Lanka - A Literature Review, (Imperial Journal of Interdisciplinary Research (IJIR) Vol 2. Issue 6 pp. 1346-1352 (2016)).
• Mohamed Badar, The Self-Declared Islamic State (ISIS / Da‘Esh) and Ius Ad Bellum Under Islamic International Law, (The Asian Yearbook of Human Rights and Humanitarian Law (2017) vol. 1).
• Muhammad Masum Billah, Extensive Use of Ḥilah in Islamic Banking and Finance, ((2015) 59.1 Islamic Quarterly 65-88).

From SmartCILP and elsewhere:

• F. Peter Phillips, Ancient and Comely Order: The Use and Disuse of Arbitration by New York Quakers, 2016 Journal of Dispute Resolution 81-114.
• Neil Foster, Freedom of Religion and Balancing Clauses in Discrimination Legislation, Oxford Journal of Law and Religion (2016).

New Book:

• Leslie C. Griffin, Law and Religion: Cases and Materials, Fourth Edition, (Foundation Press, 2016).

Recent Prisoner Free Exercise Cases

In Sioleski v. Capra, 2016 U.S. Dist. LEXIS 150556 (SD NY, Oct. 31, 2016), a New York federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that authorities refuse to recognize him as a Native American because he did not prove tribal affiliation; thus he is unable to attend Native American religious services, festivals and dances.

In Sokolsky v. California, 2016 U.S. Dist. LEXIS 150754 (ED CA, Oct. 31, 2016), a California federal magistrate judge denied a preliminary injunction to a civil detainee complaining that his rights to practice his Jewish religion were infringed and he was denied medically appropriate food.

In Chesser v. Rivas, 2016 U.S. Dist. LEXIS 151944 (SD IL, Nov. 2, 2016), a California federal district court adopted a magistrate's recommendations and, while dismissing a number of claims, permitted a Muslim inmate to move ahead with his equal protection challenge to restrictions on his teaching or learning Arabic and wearing shortened pants.

In Chesser v. Walton, 2016 U.S. Dist. LEXIS 151940 (SD IL, Nov. 2, 2016), an Illinois federal district court dismissed a Muslim inmate's challenge to the congregate prayer policy that limited limited Muslims to once a week instead of the five daily group prayers. However plaintiff was permitted to proceed with his retaliation claim.

In Quezada v. Cate, 2016 U.S. Dist. LEXIS 152213 (ED CA, Nov. 1, 2016),  a California federal magistrate judge recommended concluding that plaintiff met the criteria for a "vexatious litigant" and should be required to post $10,000 in security before proceeding with his complaint that he was denied Jewish kosher meals.

EEOC Sues Over Job Denial To Pentecostal Who Rejected Dress Code Mandate

On Thursday, the EEOC announced that it had filed a religious discrimination suit against the Michigan-based Akebono Brake Corp.  The complaint charges that the company's dress code requires all employees to wear pants.  The company refused to hire as a temporary laborer Clintoria Burnet, a member of the Apostolic Faith Church of God and True Holiness, whose religious beliefs require her as a woman to wear skirts or dresses and not pants. The company failed to offer any religious accommodation to meet Burnet's Pentecostal Christian beliefs.

Another Challenge Filed To "Church Plan" Status of Retirement Plan

Another religiously affiliated health care system has been sued by participants in its retirement plan who claim that the plan is not exempt from ERISA as a "church plan."  The complaint (full text) in Sheedy v. Adventist Health System Sunbelt Healthcare Corp., (MD FL, filed 10.28/2016), contends that the plans are underfunded by $134 million. The complaint alleges that:

the Plans do not meet ERISA's requirements for the "church plan" exemption because they were not "established,"and are not "maintained" by a church.

Reporting on the lawsuit, BNA Daily Report for Executives (Nov. 1, 2016) [subscription required] says:

 The 12-count lawsuit against Adventist Health differs from many of its predecessors because it targets several pension plans, including a multiemployer plan covering several Adventist-affiliated entities and a group of frozen plans in which participants are no longer accruing benefits.

The case is also noteworthy for being the first to target a hospital system with ties to the Seventh-Day Adventist Church. The vast majority of the nearly 40 church plan lawsuits have targeted Catholic health-care providers.

Petitions for certiorari in other cases posing the same issue are pending before the U.S. Supreme Court. (See prior posting).

Georgia Drops Demands For Copies of Sermons In Discrimination Case

As previously reported, last month the Georgia Department of Public Health created significant controversy when, as part of its discovery requests in a religious discrimination lawsuit filed against it by a Seventh Day Adventist lay minister, it asked its former employee to furnish notes or transcripts of his sermons. Christian Post reported this week that Georgia has now dropped that demand, but is still asking for his ministerial credentials; proof he has served with the Seventh Day Adventist church; his contracts with the Church; and details any compensation for his sermons.