Falwell To Head New Federal Task Force on Department of Education Policies

The Chronicle of Higher Education reported this week that Liberty University president Jerry Falwell, Jr. has been asked by President Trump to lead a new task force that will identify Department of Education policies and procedures that should be changed.  Falwell says he sees the task force as a response to overreaching regulation of accreditation standards and policies that affect student recruitment by colleges. The New York Times yesterday speculated that Falwell's Liberty University could benefit from certain regulatory rollbacks.

Judge Gorsuch's Record On Religious Liberty and Church-State Issues

President Trump has nominated 10th Circuit Judge Neil M. Gorsuch to fill the late Antonin Scalia's seat on the U.S. Supreme Court. Judge Gorsuch, who has been on the 10th Circuit for over ten years, has a lengthy record on church-state and religious liberty issues. Christianity Today describes him as "a favorite pick among Christian conservatives."  RNS has an article entitled 5 faith facts on Trump’s Supreme Court pick, Neil Gorsuch.

Here are religion cases in which Judge Gorsuch either wrote an opinion or served on the panel of the 10th Circuit which decided the case:

⇾In Summum v. Pleasant Grove City, 499 F.3d 1170 (10th Cir. 2007), he joined a dissent from denial of an en banc rehearing in a case in which the 3-judge panel required the city to allow a Seven Aphorisms Monument in a city park. The U.S. Supreme Court eventually reversed the panel's decision. [update]

⇾In Green v. Haskell County Board of Commissioners, 574 F.3d 1235 (2009) he wrote a dissent from the denial of an en banc rehearing in a case in which a 3-judge panel had held that a Ten Commandments display outside a county court house violated the Establishment Clause.

⇾In Abdulhaseeb v. Calbone, 600 F.3d 1301(2010) he joined the unanimous decision holding that there were genuine issues of material fact on the issue of whether the state prison policy regarding halal foods substantially burdened a Muslim inmate's religious exercise. The court decided for the first time in the 10th Circuit the meaning of "substantial burden" under the Religious Land Use and Institutionalized Persons Act.

⇾In American Atheists, Inc. v. Davenport, 637 F.3d 1095 (2010) he wrote a dissent from the denial of an en banc rehearing in a case which held that memorial crosses donated by the Utah Highway Patrol Association and placed on public property to commemorate fallen troopers violate the Establishment Clause.

⇾ In United States v. Quaintance, 608 F.3d 717  (2010) he wrote a unanimous opinion refusing to allow a RFRA defense to drug charges, upholding the district court's conclusion that defendants, founding members of the Church of Cognizance, did not hold sincere religious beliefs regarding the use of marijuana. [Update]

⇾In Williams v. Sibbett, 442 Fed. Appx. 385 (2011) he joined a unanimous opinion that affirmed dismissal of a suit by a Muslim inmate who alleged that members of the Utah Board of Pardon and Parole decided to disfavor Muslims in parole decisions and to favor members of the Mormon church.

⇾Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (2013) was the 10th Circuit's en banc decision in the famous Hobby Lobby case holding that two related closely held corporations were likely to succeed on their claim that under RFRA the companies cannot be required to provide health insurance that enables access to contraceptives that they find morally problematic. Judge Gorsuch wrote a concurring opinion emphasizing that the owners of the companies as well as the companies themselves should be entitled to a preliminary injunction.

⇾In Yellowbear v. Lampert, 741 F.3d 48 (2014) he wrote a unanimous opinion vacating a district court's dismissal of a RLUIPA suit by a Native American inmate seeking access to the prison's sweat lodge.

⇾In Ali v. Wingert, 569 Fed. Appx. 562 (2014) he wrote a unanimous opinion upholding a prison regulation that requires inmates wishing to use their religious name on their mail to also use their committed name along with it.

⇾In Little Sisters of the Poor Home for the Aged v. Burwell, 799 F.3d 1315 (2015) he joined a dissent to denial of en banc review of a 3-judge panel's decision that the religious exercise of Little Sisters of the Poor was not substantially burdened by requiring it to execute government forms in order to obtain an exemption from furnishing health insurance that includes contraceptive coverage.

⇾In Planned Parenthood Association of Utah v. Herbert, 839 F.3d 1301 (2016) he dissented from denial of en banc review of a panel decision granting a preliminary injunction to Planned Parenthood to prevent Utah's cutting off the pass-through of federal funds to the organization.

Judge Gorsuch has also written a book titled The Future of Assisted Suicide and Euthanasia, published by Princeton University Press. Here is an excerpt from the publisher's description of the book:

After assessing the strengths and weaknesses of arguments for assisted suicide and euthanasia, Gorsuch builds a nuanced, novel, and powerful moral and legal argument against legalization, one based on a principle that, surprisingly, has largely been overlooked in the debate--the idea that human life is intrinsically valuable and that intentional killing is always wrong. At the same time, the argument Gorsuch develops leaves wide latitude for individual patient autonomy and the refusal of unwanted medical treatment and life-sustaining care, permitting intervention only in cases where an intention to kill is present.

[Note: This post will be updated to include other Gorsuch opinions that come to my attention. I invite readers to e-mail me information on any I have omitted.]

Boy Scouts Will Admit Transgender Males

The Boy Scouts of America announced yesterday that it will accept and register youth in Cub Scout and Boy Scout programs based on the gender identity indicated on the application. This reverses a century old policy that relied on gender stated on the birth certificate to determine eligibility for single-gender programs.  New York Times reports on these developments. Under the new policy a trangender boy was invited back into a New Jersey Cub Scout pack according to NorthJersey.com.

Puerto Rico Federal District Court Rules Says Catholic School Pension Plan Is Covered By ERISA

In Martinez-Gonzalez v. Catholic Schools of the Archdioceses of San Juan Pension Plan, 2017 U.S. Dist. LEXIS 11903 (D PR, Jan. 27, 2017), a Puerto Rico federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 11904, Jan. 9, 2017) and refused to dismiss a suit claiming that the pension plan covering employees of Catholic schools in Puerto Rico does not qualify for the "church plan" exemption in ERISA. The magistrate judge ruled in part:

In light of the plain meaning of the statutory text establishing ERISA's church-plan exemption, this court should find that the better-reasoned view holds that a church plan established by a church-affiliated organization——such as the Superintendence—— [rather than by the Church itself] and maintained by such an organization is not a church plan.

Plaintiffs allege that termination of the plan was in violation of ERISA procedures. This term the U.S. Supreme Court has granted certiorari in cases raising the same legal issue. (See prior posting.)

British Court Denies Transgender Parent Contact With Children Because of Religious Community's Reaction

A British Family Court in J v. B and the Children, (EWFC, Jan. 30, 2017), has rejected the petition of an Orthodox Jewish father, a member of the Manchester Charedi community who left home to live as a transgender woman, to have direct contact with his five children.  The court limited the father's contact to letters four times a year to the children. The court said in part:

These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this. That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education.... Contact carries the clear risk that the children and their mother will become the next casualties in a collision between two unconnecting worlds. The father has already experienced the consequences of that collision, and no one knows better than she does how very painful they can be.....

I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra‐Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact.

The Guardian reports on the decision. [Thanks to Mel Kaufman and Paul deMello for the lead.]

CAIR Sues Over Trump Executive Order

CAIR announced yesterday that it has filed a lawsuit challenging the constitutionality of President Trump's recent Executive Order on refugees and on those entering the U.S. from any of seven Muslim-majority countries. The complaint (full text) in Sarsour v. Trump, (ED VA, filed 1/30/2017) alleges that a hidden purpose of the Executive order (which the complaint calls a Muslim Exclusion Order) is to initiate the mass expulsion of Muslims lawfully living in the U.S. by denying them the ability to to renew their lawful status or receive immigration benefits. Plaintiffs claim that the order violates the Establishment and Free Exercise clauses and denies plaintiffs equal protection of the laws.  Politico reports on the lawsuit.

Lawsuit Challenges Trump Executive Order As Establishment Clause Violation

A direct Establishment Clause challenge to President Trump's Executive Order on immigration and refugees was raised in a lawsuit filed Saturday in a California federal district court in a suit brought on behalf of the People of the United States and of California.  The brief complaint (full text) in People of the United States of America and the State of California v. Trump, (ND CA, filed 1/28/2017) contends that the Executive Order violates separation of powers and is facially unconstitutional under the Establishment Clause because it bars "entry of persons to the United States based on their adherence to religious beliefs shared in certain countries." Politico reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Benjamin Schonthal & Tom Ginsburg, Setting an Agenda for the Socio-Legal Study of Contemporary Buddhism (Introduction), (Asian Journal of Law and Society 3:1-16 (2016)).
• Levi Cooper, Culpability for Curses in Jewish Law and Mystical Lore, (Wizards vs. Muggles: Essays on Identity and the Harry Potter Universe, ed. Christopher E. Bell (Jefferson, NC: McFarland, 2016), 168-193).
• Netta Barak Corren, Beyond Dissent and Compliance, (Oxford Journal of Law and Religion, Forthcoming).
• Dimitry Gegenava, Some Technical and Legal Problems of the Constitutional Agreement, (Journal of Law, No. 1, 2016).
• Nelson Tebbe, Religious Freedom in an Egalitarian Age (Introduction), (N. Tebbe, Religious Freedom in an Egalitarian Age, Harvard University Press, 2017).
• Helge Årsheim, Religion and International Organizations, (In Ian Hurd, Ian Johnstone, and Jacob Katz Cogan (eds), The Oxford Handbook of International Organizations. Oxford: Oxford University Press, pp. 490-507 (2016)).
• Ioana Cismas, The Child's Best Interests and Religion: A Case Study of the Holy See's Best Interests Obligations and Clerical Child Sexual Abuse, (Elaine E. Sutherland and Lesley-Anne Barnes Macfarlane (eds.) Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-Being (Cambridge University Press, 2016), pp. 310-325).
• Dipayan Chowdhury & Atmaja Tripathy, Recognizing the Right of the Third Gender to Marriage and Inheritance Under Hindu Personal Law in India, (Chowdhury D., Tripathy A. Recognizing the Right of the Third Gender to Marriage and Inheritance under Hindu Personal Law in India. BRICS Law Journal. 2016;3(3):43-60).
• Michael Boucai, Is Assisted Procreation an LGBT Right?, (Wisconsin Law Review, Vol. 2016, No. 6, 2016).
• Jud Campbell, Republicanism and Natural Rights at the Founding, (32 Constitutional Commentary 85 (2017)).
• Mohamed A. Arafa & Ahmed El-Ashry, Gender Equality in the Arab and Muslim World: Whither Post-Revolutionary Egypt?, (Gender Equality in a Global Perspective (Routledge Advances in Management and Business Studies, Chapter 3, London & New York, 2017)).

From SmartCILP and elsewhere:

• Justice Barbara A. Jackson, Called to Duty: Justice William J. Gaston, 94 North Carolina Law Review 2051-2096 (2016).
• Gregory A. Mark, Hobby Lobby and Corporate Personhood: Taking the U.S. Supreme Court's Reasoning at Face Value, 65 DePaul Law Review 535-558 (2016).
• Sukhsimranjit Singh, Religious Arbitration and Its Struggles with American Law & Judicial Review, 16 Pepperdine Dispute Resolution Law Journal 360-406 (2016).
• Dr. Isha Ann Emhoff, Ellen Fugate & Nir Eyal, Is There a Moral Right to Nonmedical Vaccine Exemption?, 42 American Journal of Law & Medicine 598-620 (2016).
• Lidiya Mishchenko, In Defense of Churches: Can the IRS Limit Tax Abuse by “Church” Impostors?, 84 George Washington Law Review 1361 (2016).

Recent Prisoner Free Exercise Cases

In Wilson v. Wetzel, 2017 U.S. Dist. LEXIS 9011 (MD PA, Jan. 23, 2017), a Pennsylvania federal district court dismissed a claim by a Hebrew-Israelite inmate that he was wrongly denied kosher bag meals on the Fast of Gedaliah.

In Arnold v. Heyns, 2017 U.S. Dist. LEXIS 8017 (ED MI, Jan. 20, 2017), a Michigan federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 182603, Dec. 21, 2016) and dismissed an Orthodox Jewish inmate's complaint that he was served a vegan diet rather than a kosher diet that included meat. However it allowed him to move ahead with his claim that the vegan meals were not kosher because of cross-contamination.

In Dayton v. Lisenbee, 2017 U.S. Dist. LEXIS 9459 (ED MO, Jan. 24, 2017), a Missouri federal district court held that "while RLUIPA allows official-capacity claims against prison officials, it does not authorize monetary damages based on those claims." However it allowed plaintiff to proceed on his individual-capacity constitutional claims for monetary relief.

In Husband v. Dougherty, 2017 U.S. Dist. LEXIS 11609 (D AZ, Jan. 26, 2017), an Arizona federal district court dismissed an inmate's suit against two prison chaplains complaining that he was not granted a kosher diet during Passover, a daily kosher diet or a shaving waiver.

In Balcar v. Smith, 2017 U.S. Dist. LEXIS 10899 (WD KY, Jan. 26, 2017), a Kentucky federal district court rejected an inmate's complaint that he is not being served chicken and pork because these meats do not comply with a Muslim diet.  He claimed this violates the Establishment Clause, the equal protection clause and RLUIPA.

In Ha'Keem v. Mesojedec, 2017 U.S. Dist. LEXIS 11321 (D MN, Jan. 25, 2017), a Minnesota federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 182928, Dec. 29, 2016) and dismissed with leave to amend a suit by Muslims civilly committed in the Minnesota Sex Offender Program who object to restrictions on their use of prayer oil and numerous other actions that burden their exercise of religion.

6th Circuit Rejects Free Exercise Defense To Marijuana Charges

In United States v. Barnes, (6th Cir., Jan. 26, 2017), the U.S. 6th Circuit Court of Appeals refused to dismiss an indictment of a member of the Oklevueha Native American Church who was charged with growing large quantities of marijuana.  Defendant claimed that the 1st Amendment and RFRA allowed him to grow the plants to donate to the church. The court disagreed saying in part:

Barnes did not make an adequate showing that the CSA substantially burdened his practice of religion. Barnes admitted that growing marijuana and donating it to the church is not required by his religion.... [W]hile marijuana is considered a medicine of the church, it is not an essential sacrament of the faith.... Peyote, by contrast, is the only “sacrament” of the church. Barnes did not provide any historical evidence that the manufacturing of marijuana is central to the ONAC religion specifically, or to Native American religion in general.

... [M]anufacturing marijuana and intending to donate it to the Toledo church was a "personal belief" and a choice that he made, not one that was critical to practicing the ONAC faith. While Barnes is correct that it is not the place of the court to decide the "centrality of . . . beliefs to canonical texts," that does not prevent this court from determining whether a particular practice is required by a religion as a part of the substantial-burden analysis.... 

Church Loses Its Challenge To Town's Sign Ordinance

In Signs for Jesus v. Town of  Pembroke, NH, (D NH, Jan. 27, 2017), a New Hampshire federal district court upheld a New Hampshire town's application of its Sign Ordinance to prohibit a church (that was outside the commercial district) from installing an electronic changing sign. The court, summarizing its conclusions, said:

First, the Town’s decision to deny the Church’s request for an electronic sign had nothing to do with either religion or the content of the Church’s speech. Second, the decision served the Town’s important governmental interests in aesthetics and traffic safety in a manner that was narrowly tailored to serve those interests. Third, the decision does not unreasonably burden the Church’s right to practice its religious beliefs, to practice free speech, or to use its property. Finally, the Town has not treated the Church differently from any other similarly situated landowner. In light of these conclusions, the Church’s contention that it should be free from the effect of the Town’s electronic sign ordinance amounts to a demand, not for a level playing field, but instead for a right to be treated differently from all other private landowners. Neither the state and federal constitutions nor RLUIPA requires this result. 

Pakistani Court Sentences Last of Hajj Corruption Defendants

In Pakistan yesterday, a special court sentenced the last of 4 defendants in the 2010 Hajj corruption case to 30 years in prison and a fine equivalent to $386,000(US).  AAJ-TV reports that defendant Ahmad Faiz was charged with being the front man for the Religious Affairs Director General.  Defendants were charged with massive corruption in the arrangements for Pakistani Hajj pilgrims. (See prior posting.)  Last year, 3 other defendants in the case were sentenced. The former federal minister for religious affairs Hamid Saeed Kazmi and the additional secretary Aftab Ahmed were sentenced to 16 years in prison, while Director General for Hajj Affairs Rao Shakeel was sentenced to 40 years. (Express Tribune, June 3, 2016).

Trump's Immigration Executive Order Faces 1st Amendment Challenges

As reported by the Washington Post, yesterday President Trump signed an Executive Order (full text) suspending for 90 days immigrant and non-immigrant entry into the U.S. of aliens from seven Muslim-majority countries-- Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia. (It should be noted that the countries to which the Executive Order is applicable is discoverable only by elaborate cross references in Sec. 3(c) of the Order that ultimately lead to this list developed last year by the Department of Homeland Security under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of travelers not eligible to participate in the visa waiver program). The Executive Order does not apply to those entering under various diplomatic visas.

The Executive Order also suspends admission of all refugees for 120 days, and of Syrian refugees for an indefinite period.  It provides that when refugee admissions are resumed:

the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality.

Following up on this provision, Trump told the Christian Broadcasting Network that priority will be given to persecuted Christians in the Middle East, particularly Syria. The Legal Director of the ACLU in a post earlier today argued that the Executive Order's targeting of Muslims and favoring of Christians violates the Establishment Clause. Meanwhile CAIR announced that it will be holding a news conference Monday on a lawsuit that it will file in federal district court in Virginia to "challenge the constitutionality of the order because its apparent purpose and underlying motive is to ban people of the Islamic faith from Muslim-majority countries from entering the United States."

Pence Speaks To March For Life

As reported by the New York Times, today Vice President Mike Pence spoke in person to the thousands of marchers in this year's anti-abortion March For Life. (Full text of remarks.)  He said in part:

More than two-hundred and forty years ago, our Founders wrote words that have echoed through the ages. They declared “these truths to be self-evident.” That we are, all of us, “endowed by our Creator with certain unalienable rights,” and “that among these are life, liberty, and the pursuit of Happiness.” Forty-four years ago, our Supreme Court turned away from the first of these timeless ideals....

But as it is written, “let your gentleness be evident to all.” Let this movement be known for love, not anger – for compassion, not confrontation. When it comes to matters of the heart, there’s nothing stronger than gentleness.

Even Trump's Statement on International Holocaust Memorial Day Is Not Without Controversy

Today is International Holocaust Memorial Day.  The day-- the anniversary of the liberation of Auschwitz-Birkenau-- was chosen by the United Nations General Assembly as the date for the international commemoration. CBS News reports on commemoration activities in various countries.  President Donald Trump issued a Statement (full text) marking the commemoration, saying in part:

It is with a heavy heart and somber mind that we remember and honor the victims, survivors, heroes of the Holocaust. It is impossible to fully fathom the depravity and horror inflicted on innocent people by Nazi terror.

Jonathan Greenblatt, head of the Anti-Defamation League commented on the President's Statement in a Tweet, saying:

Puzzling and troubling White House Holocaust Memorial Day Statement has no mention of Jews. GOP and Democratic presidents have done so in the past.

Other media, such as the Washington Post and  Haaretz make the same point about Trump's statement.

Presidential Proclamation For National School Choice Week

Yesterday President Donald Trump issued a Proclamation (full text) declaring January 22 through January 28 as National School Choice Week. The Proclamation reads in part:

Our country is home to many great schools and many extraordinary teachers -- whether they serve in traditional public schools, public charter schools, magnet schools, private or religious schools, or in homeschooling environments....

As our country celebrates National School Choice Week, I encourage parents to evaluate the educational opportunities available for their children.  I also encourage State lawmakers and Federal lawmakers to expand school choice for millions of additional students.

March For Life Is Today; VP Pence Will Address Marchers

In Washington, D.C., the annual March for Life, protesting the U.S. Supreme Court's Roe v. Wade decision is being held today.  Roe was decided in January of 1973. As reported by ABC News, this year Vice President Mike Pence and counselor to the president Kellyanne Conway will both address the marchers in person.  They are the highest-ranking White House officials to ever address the march in person. Other speakers include Cardinal Timothy Dolan, Sen. Joni Ernst (R-Iowa), Rep. Mia Love (R-Utah), and Rep. Chris Smith (R-New Jersey).

3rd Circuit Hears Appeal In Convictions For Coercing Jewish Divorce Documents

The U.S. 3rd Circuit Court of Appeals on Wednesday heard oral arguments in United States v. Stimler. (Audio of full oral arguments.) In the case, a New Jersey federal district court convicted three defendants on charges growing out of arrangements to abduct, beat and torture recalcitrant Jewish husbands who refused to give their civilly divorced wives a religious divorce document (get). (See prior posting.) According to AP's report on Wednesday's oral arguments, defendants' attorneys argued, among other things, that the trial judge erred in not admitting evidence into trial that explained the defendants' religious beliefs. (See prior related posting.) Attorneys also argued lack of search warrants to obtain cellphone records.

EEOC Gets New Acting Chair; Releases 2016 Data On Charges

The EEOC announced yesterday that President Donald Trump has named Commissioner Victoria A. Lipnic as Acting Chair of EEOC. She replaces Jenny R. Yang who continues to serve as a Commissioner.

Meanwhile, last week the EEOC released detailed breakdowns of the 91,503 charges of workplace discrimination it received in fiscal year 2016. Religious discrimination was charged in 4.2% of the complaints. This year for the first time the EEOC included separate data for LGBT-based sex discrimination charges.

Pro-Life Student Group Sues Over Denial of Recognition

Yesterday a pro-life student group filed a federal lawsuit against officials of Queens College in New York after the organization was denied registered student organization status.  The complaint (full text) in Queens College Students For Life v. Members of the City University of New York Board of Trustees, (ED NY, filed 1/25/2017), contends that the unbridled discretion given to the Campus Affairs Committee to deny registered student organization status (and its associated benefits, including funding from student activity fees) allows discrimination against organizations on the basis of viewpoint. ADF issued a press release announcing the filing of the lawsuit.