Class Acton Lawsuit Filed Against Travel Ban

On Tuesday, another lawsuit was filed challenging President Trump's so-called travel ban Executive Order.  This suit was brought on behalf of two refugee agencies-- International Refugee Assistance Project and HIAS--and by several individuals.  The complaint (full text) in International Refugee Assistance Project v. Trump, (D MD, filed 2/7/2017) asks a Maryland federal district court to certify the suit as a class action on behalf of all persons in the United States for whom the Executive Order interferes with family reunification or with the ability to travel internationally and return to the U.S.  The complaint includes claims based on the Establishment Clause, Equal Protection Clause and Religious Freedom Restoration Act, among others, and contends:

President Trump has repeatedly made clear his intent to enact policies that exclude Muslims from entering the United States and favor Christians seeking to enter the United States.

HIAS issued a press release announcing the filing of the lawsuit.

Ohio City Enacts Broad Conversion Therapy Ban

According to the Toledo Blade, Toledo, Ohio City Council on Tuesday passed a broad ban on conversion therapy-- therapy aimed at changing a person's sexual orientation or gender identity.  Unlike most bans elsewhere, Toledo's ordinance is not limited to protecting minors. The new law provides:

no mental health provider shall engage in sexual orientation or gender identity change efforts with any person.

The ordinance provides for a fine of $250 for each violation. According to Toledo City Paper, the new ordinance passed City Council by a vote of 12-0.

Dakota Pipeline Will Move Ahead Despite Native American Objections

Washington Post reports that in a court filing yesterday the U.S. Army said that it will grant developers a 30-year easement under North Dakota’s Lake Oahe.  This is the final permit needed to complete the Dakota Access Pipeline. The Pipeline runs near the Standing Rock Sioux Reservation.  Tribal members claim that the Pipeline construction will destroy sacred ancestral Tribal lands. (See prior posting.) The Army is also terminating its plan to prepare an environmental impact statement on the Pipeline. Today's actions were authorized by a Presidential Memorandum issued by Donald Trump last month. (See prior posting.) Demonstrations and court challenges to the Army's decision are expected.

Barber Shop That Refused Transgender Customer on Religious Grounds Settles

In a press release issued last week, Lambda Legal announced it had reached a settlement with a California barber shop that had refused to cut the hair of a transgender man because the owner perceived the customer to be a female. The owner later told reporters that he had religious objections to cutting women's hair, saying that God made a clear distinction between genders and "it’s a shame for a man to have long hair, but if a woman has long hair, it’s her glory." The stipulated final judgement (full text) in Oliver v. The Barbershop R.C., Inc., (CA Super. Ct., Jan. 19, 2017), recites that defendants violated California's Unruh Civil Rights Act and enjoins them from discriminating on the basis of sex, including on the basis of actual or perceived gender, gender identity or gender expression.

5th Circuit Hears Oral Arguments On School Board Invocations

The U.S. 5th Circuit Court of Appeals yesterday heard oral arguments (audio of arguments) in American Humanist Association v. Birdville Independent School District.  Last August federal district court for the Northern District of Texas (full text of opinion) held that case law permitting legislative prayer applies to invocations at school board meetings.  The practice of the Board, in its latest iteration, involved selecting students at random to make a presentation at each board meeting.  American Humanist Association issued a press release on the oral arguments.

4th Circuit: No Title VII Claim Where Employee Failed To Follow Leave Procedures

In Abeles v. Metropolitan Washington Airports Authority, (4th Cir., Jan. 26, 2017), the U.S. 4th Circuit Court of Appeals rejected a religious discrimination claim by an Orthodox Jewish Airports Authority employee who was suspended for five days for taking off work for the last two days of Passover.  The employee gave only informal notice of her intention to take off those days and did not comply with the formal leave request procedure.  The court, responding to plaintiff's argument that under Title VII she should have been granted religious accommodation, said in part:

[N]o conflict existed between Plaintiff observing religious holidays and following MWAA’s neutral rules requiring advance approval of leave following specified procedures. Nor could she establish such a conflict. The Leave Policy merely requires employees to request leave by form or email, and obtain advance approval.

The court also rejected plaintiff's disparate treatment argument.  Discussion of the decision from plaintiff's perspective is provided by a Huffington Post contributor.

Bible-Based Daycare Denied Property Tax Exemption

In Hamilton County Assessor v. Duke, (IN Tax Ct., Feb. 3, 2017), the Indiana Tax Court denied a property tax exemption to the owner of property in which Little Lamb Daycare, a for-profit daycare that offers a Bible-based curriculum, operates.  The court found that the failure to provide a comparison of the amount of time the property was used for exempt purposes in relation to the overall time it was used for all purposes prevents the granting of either an educational use or a religious use exemption. Indiana Lawyer reports on the decision.

More Primary Source Material On Travel Ban Challenge-- Briefs Are In; Oral Arguments Tomorrow

A flurry of filings have been submitted to the U.S. 9th Circuit Court of Appeals in the U.S. government's attempt to obtain a stay of the temporary restraining order against enforcement of much of President Trump's immigration and refugee executive order. Both sides have filed memoranda supporting their positions.  In addition, eight amicus briefs have been filed.  Links to all the filings are available on the 9th Circuit's website. The court will hear oral arguments by telephone on Tuesday, February 7, 2017 at 3:00 p.m. PST and will promptly make recordings publicly available. New York Times reports on developments.

Recent Articles of Interest

From SSRN:

• Gary S. Gildin, A Blessing in Disguise: Protecting Minority Faiths Through State Religious Freedom Non-Restoration Acts, (23 Harv. J. L. & Pub. Pol'y 411 (2017)).
• Eduardo M. Penalver, Carbon Trading and the Morality of Markets in Laudato Si, (Cornell Legal Studies Research Paper No. 17-3 (2017)).
• Tony Sax, Rethinking Legislative Prayer after Town of Greece: How Ceremonial Deism Would Include More and Exclude Less, (2016).
• Jeroen Temperman, Freedom of Religion or Belief in Prison, (Oxford Journal of Law and Religion (2017)).
• Sherally K. Munshi, Race, Geography, and Mobility, (Georgetown Immigration Law Review, Vol. 30, No. 245, 2016).
• Timothy Lubin, The Theory and Practice of Property in Premodern South Asia: Disparities and Convergences, (Journal of the Economic and Social History of the Orient, Forthcoming).
• Santiago Legarre, Natural Law in Judaism Revisited, (82 Prudentia Iuris 239 (2016)).
• Eloisa C. Rodriguez-Dod,  Aileen M. Marty & Elana Marty-Nelson, Tears in Heaven: Religiously and Culturally Sensitive Laws for Preventing the Next Pandemic, (66 Cath. U. L. Rev. 117 (2017)).
• Brett G. Scharffs, Why Religious Freedom? Why the Religiously Committed, the Religiously Indifferent and Those Hostile to Religion Should Care, (BYU Law Research Paper No. 17-01 (2017)).
• Richard Traunmüller & Marc Helbling, Public Opinion Backlash to Liberal Policy: The Case of Muslim Political Rights in the UK, (January 26, 2017).

From SSRN (Tax and Non-Profits):

• James Patrick Huston, Pauper's Parity: Taking Away the Fine Print of 'Your Contribution is Tax-Deductible', (2016).
• Adam Chodorow, The Parsonage Exemption, (January 28, 2017).
• Samuel D. Brunson & David Herzig, A Diachronic Approach to Bob Jones: Religious Tax Exemptions after Obergefell, (Indiana Law Journal, Forthcoming).

From SmartCILP:

• Ivan E. Bodensteiner, Not Surprisingly, A Crucifix Conveys a Religious Message, 49 Valparaiso University Law Review 897-906 (2015).
• Robert M. Jarvis, The Story of the Gary, Indiana Crucifix, 49 Valparaiso University Law Review 873-896 (2015).
• Jessica L. Roberts, An Alternative Theory of Burwell v. Hobby Lobby, 22 Connecticut Insurance Law Journal 85-120 (2016).

Hawaii Sues Trump Over Travel Ban

Last Friday, the state of Hawaii filed a lawsuit against President Donald Trump challenging his Executive Order imposing a travel ban on individuals from seven Muslim countries and imposing a moratorium on refugee admissions. The complaint and Memorandum in Support (full text of press release, complaint and Memorandum in support of TRO) in State of Hawai'i v. Trump, (D HI, filed 2/3/2017) particularly emphasize Establishment Clause concerns with the Executive Order. Plaintiff's Memorandum in Support states in part:

The President and his aides have made it abundantly clear that they intend to exclude individuals of the Muslim faith, and that this Order—which bans travel only with respect to certain Muslim-majority countries—is part of that plan....  Sections 5(b) and 5(e) also explicitly direct the government to prioritize religious refugee claims if the “religion of the individual is a minority religion in the individual’s country”—a system of religious preference that President Trump told the media was expressly designed to favor Christians....

In the Establishment Clause context, these statements matter. Because Lemon’s first step is concerned with “whether [the] government’s actual purpose is to endorse or disapprove of religion,” courts routinely look to the public declarations of an act’s originator to discern its true aim.

West Hawaii Today reports on the lawsuit.

Recent Prisoner Free Exercise Cases

In Beamon v. Pollard, 2017 U.S. Dist. LEXIS 12446 (ED WI, Jam. 30, 2017), a Wisconsin federal magistrate judge dismissed an inmate's challenge to the confiscation from his cell of materials believed to relate to Nation of Gods and Earths.

In Iceberg v. Martin, 2017 U.S. Dist. LEXIS 12557 (WD WA, Jan. 27, 2017), a Washington federal district court dismissed a religious discrimination complaint by a Christian Science inmate who contended that he received no response to his request to obtain rehabilitation services without meeting with a psychologist because psychology and psychiatry are inconsistent with his religious beliefs.

In Leggett v. Solomon, 2017 U.S. Dist. LEXIS 12958 (ED NC, Jan. 31, 2017), a North Carolina federal district court dismissed a suit by a former inmate who complained that during Ramadan he was not provided a supplemental meal bag because he was on a special diet for medical reasons.

In Hines v. Illinois Department of Corrections, 2017 U.S. Dist. LEXIS 13173 (SD IL, Jan. 31, 2017), an Illinois federal district court allowed a Muslim inmate to move ahead with certain of his claims regarding denial of a halal diet when the lacto-ovo diet created health problems for him.

In Ali v. Drawbridge, 2017 U.S. Dist. LEXIS 12039 (WD OK, Jan. 30, 2017), an Oklahoma federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 183126, Dec. 22, 2016) and dismissed a Muslim inmate's claim that he was denied a halal diet for a one month period and his complaint that he was not allowed to possess the "Noble Quran" version of the Islamic scripture-- (his copy was confiscated).

In Greybuffalo v. Litscher, 2017 U.S. Dist. LEXIS 13691 (WD WI, Feb. 1, 2017), a Wisconsin federal district court dismissed for failure to exhaust administrative remedies a Native American Church inmate's complaint that his request for a separate sweat lodge ceremony conducted according to Church principles was denied.

In Hoffmann v. Growden, 2017 U.S. Dist. LEXIS 14139 (ED CA, Jan. 31, 2017), a California federal magistrate judge dismissed with leave to amend plaintiff's claim that during three days during which he was wrongly held in jail he was denied a religious diet.

In Collier v. Kernan, 2017 U.S. Dist. LEXIS 14141 (ED CA, Feb. 1, 2017), a California federal magistrate judge recommended dismissing a Muslim inmate's claim that denial of conjugal visits infringes his free exercise rights and his right to marry.

In Hall v. Klemm, 2017 U.S. Dist. LEXIS 14767 (WD PA, Feb. 1, 2017), a Pennsylvania federal magistrate judge recommended that plaintiff be granted summary judgement as to defendants' liability for denying him a diet consistent with his Native American religious tradition, including his claim for compensatory damages.

California Inmates May Have Another Route To Relief For Free Exercise Infringements

In Hauseur v. Clark, (ED CA, Jan. 31, 2017), a California federal district court may have opened a new route for state prisoners in California to obtain damages or equitable relief for free exercise infringements.  California's Bane Act (Civil Code Sec. 52.1) allows anyone whose rights under the Constitution or laws of the United States or of California have been interfered with through threat, intimidation, or coercion to bring an action for damages and/or injunctive relief. The statute goes on to provide:

(j) Speech alone is not sufficient to support an action ... except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat.

In this case, brought by a California inmate who complained about the standards for kosher meals he received and about the failure to provide Jewish religious services on many occasions, a federal magistrate judge had held that plaintiff had not stated a claim because he did not allege violence or the threat of violence. Rejecting that portion of the magistrate's recommendation, the district court judge in this case held:

An allegation of either violence or the threat of violence is only necessary if the alleged violations of the Bane Act are based entirely on speech.... [Here] plaintiff stated a cognizable retaliation claim because he alleged the defendants threatened to use their authority to purposefully continue to violate his free exercise rights if he did not withdraw his administrative appeals.... Following this threat and plaintiff’s decision not to withdraw his appeal, defendants allegedly did inhibit plaintiff’s ability to engage in the free exercise of religion.... As alleged, these actions constitute threats and coercion and are sufficient to state a cognizable Bane Act claim.

Former NYPD Officer Sues Over Anti-Muslim Discrimination

A suit was filed last week in a New York federal district court by a former NYPD officer. Plaintiff, a Muslim, claims she suffered retaliation and a hostile work environment when she began to wear a hijab while on duty.  The complaint (full text) in Alamrani v. City of New York, (SD NY, filed 2/2/2017),  alleges in part:

From 2009 until 2012, Plaintiff Alamrani was ... constantly assigned to posts which do not allow her to earn overtime and was called discriminatory names on a daily basis like terrorist and Taliban. Also on a daily basis she would be told that she should not be a police officer, that she should not be allowed to wear the Hijab, that nobody wanted to work with her, that she was a disgrace to the NYPD and that nobody liked her along with other deriding comments.

In late 2012, fellow-officers tried to rip her hijab off her head. In subsequent years she was limited to working the night shift, and other retaliatory actions allegedly occurred. The suit claims violations of Title VII as well as of New York City and New York state law.  The Gothamist reports on the lawsuit.

Canadian Court Convicts 2 FLDS Members For Bringing Daughter To US To Marry Church Leader

As reported by the Toronto Sun, a British Columbia (Canada) trial court has found that FLDS member Brandon James Blackmore, assisted by Gail Blackmore, transported the couple's 13-year old daughter from Canada to the United States to facilitate her marriage to Warren Steed Jeffs, then the Prophet and President of the FLDS Church. In Regina v. Blackmore, (BC Sup. Ct., Feb. 3, 2017), the court after making extensive findings concluded that the two are guilty, but acquitted a third defendant-- James Oler-- on charges relating to his daughter.

Second Major Leader of SNAP Resigns

RNS reports that Barbara Blaine, founder of the advocacy group Survivors Network of those Abused by Priests (SNAP), resigned effective yesterday.  This is the second major departure from the organization in recent weeks.  In late January it was announced that long-time Executive Director of SNAP,  David Clohessy, had left his position with the organization in December.  Both Blaine and Clohessy deny that their departures are related to a lawsuit filed against SNAP in January.  The suit alleges that the organization exploits survivors by referring them to attorneys from whom SNAP receives kickbacks. (See prior posting.)

Washington Federal District Court Issues TRO Against Travel Ban; Appeal Filed-- Here Are Links To Primary Sources [UPDATED]

As widely reported, a Washington federal district court yesterday issued a nation-wide temporary restraining order against key portions of President Trump's Executive Order that temporarily banned entry of individuals from seven Muslim-majority countries and restricted entry of refugees, particularly those from Syria. (See prior posting.) The temporary restraining order (full text) in State of Washington v. Trump, (WD WA, Feb. 3, 2017), does not set out which of plaintiffs' arguments were persuasive to the court.  Those arguments, as set out in the complaint (full text), include establishment clause, due process and equal protection claims as well as statutory claims. Washington's Attorney General has provided links to all documents in the case. The court has posted a video of the full oral arguments and judge's ruling in the case.  Americans United filed an amicus brief (full text) with the district court setting out at length the Establishment Clause arguments. As reported by The Hill, this evening the Justice Department filed a notice of appeal (full text) in the case with the 9th Circuit. According to CNN, focusing on the court's designation of the motions panel for February:

The three judges who will likely hear the appeal -- assuming no one has to step aside over any conflicts -- are: Judge William Canby, who was appointed by President Jimmy Carter; Richard Clifton, who was appointed by Bush; and Michelle Friedland, a President Barack Obama appointee.

UPDATE: On Saturday night (2/4) the 9th Circuit denied an immediate stay of the district court opinion pending briefing by Monday on the emergency motion. (Full text of 9th Circuit's order). The order was issued by Judges Canby and Friedland.

UPDATE2: Also on Feb. 3, a Massachusetts federal district court refused to renew a temporary restraining order that had prevented detention and/or removal of individuals with approved refugee applications who would be legally admitted to the United States in absence of President Trump's Executive Order. The original TRO expired Feb. 5.  The court in Louhghalam v. Trump, (D MA, Feb. 3, 2017) held that rational basis review applies to equal protection challenges to federal government categorizations with respect to non-resident aliens.  It held that plaintiffs raising establishment clause objections lacked standing to do so.  It added:

Moreover, the language in Section 5 of the EO is neutral with respect to religion. Plaintiffs submit in their amended complaint that Section 5 favors Muslims over Christians, in violation of the Establishment Clause. The provisions of Section 5, however, could be invoked to give preferred refugee status to a Muslim individual in a country that is predominately Christian. Nothing in Section 5 compels a finding that Christians are preferred to any other group.

ACLU has links to all the pleadings in the Louhghalam case.

Draft Executive Order Would Expand Free Exercise Protections

The Nation reported yesterday on a leaked copy of a draft Executive Order on Religious Freedom which is currently being circulated by the White House, saying:

The draft order seeks to create wholesale exemptions for people and organizations who claim religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity, and it seeks to curtail women’s access to contraception and abortion through the Affordable Care Act. 

The draft titled Establishing a Government-Wide Initiative to Respect Religious Freedom is set out in full in The Nation report.  The Order provides in part:

“Religious organization” shall be construed broadly to encompass any organization, including closely held for-profit corporations, operated for a religious purpose, even if its purpose is not exclusively religious, and is not limited to houses of worship or tax-exempt organizations, or organizations controlled by or associated with a house of worship or a convention or association of churches.

Sec. 3 Religious Freedom Principles and Policymaking Criteria. All executive branch departments and agencies (“agencies”) shall, to the greatest extent practicable and permitted by law, adhere to the following principles and criteria when formulating and implementing regulations, actions, or policies:

(a) Religious freedom is not confined to religious organizations or limited to religious exercise that takes place in houses of worship or the home. It is guaranteed to persons of all faiths and extends to all activities of life.

(b) Persons and organizations do not forfeit their religious freedom when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts: or otherwise participating in the marketplace, the public square, or interfacing with Federal, State or local governments....

Trump At National Prayer Breakfast Again Promises Johnson Amendment Repeal

President Donald Trump spoke yesterday at the National Prayer Breakfast. (Full text of remarks.)  In a wide-ranging speech, he reiterated his campaign promise to repeal the Johnson Amendment that restricts non-profits from participating in partisan election campaigns, saying in part:

It was the great Thomas Jefferson who said, “The God who gave us life, gave us liberty.”  Jefferson asked, “Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?”

Among those freedoms is the right to worship according to our own beliefs.  That is why I will get rid of, and totally destroy, the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.  I will do that -- remember.

Not all religious groups favor repeal of the tax code ban on electioneering.  Responding to Trump's remarks, the Baptist Joint Committee issued a press release, saying in part:

Politicizing churches does them no favors. The promised repeal is an attack on the integrity of both our charitable organizations and campaign finance system.

Inviting churches to intervene in campaigns with tax-deductible offerings would fundamentally change our houses of worship. It would usher our partisan divisions into the pews and harm the church’s ability to provide refuge.

Trump Travel Ban Will Not Apply To Israelis Born in Covered Nations

A refinement was announced yesterday to President Trump's Executive Order on entry into the U.S. of nationals of seven Muslim-majority countries.  The modification, which essentially carves out an exception for Jews from those nations now living in Israel, may strengthen arguments of opponents who contend that the Executive Order operates de facto as a "Muslim ban."  The U.S. Embassy in Israel yesterday announced:

Travelers with an existing valid visa in their Israeli passport may travel to the United States, even if they are also a national of or born in one of the seven restricted countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen). Embassy Tel Aviv will continue to process visa applications and issue visas to eligible visa applicants who apply with an Israeli passport, even if born in, or a dual national of, one of the seven restricted countries. Final authorization to enter the United States is always determined at the port of entry.

According to The Forward, some 140,000 Israelis, most older than 65, were born in the 7 countries covered by the travel ban. Around 45,000 were born in Iran and 53,000 were born in Iraq. No doubt almost all of these are Jews who left Arab and Muslim countries in the Middle East to move to Israel. (Background.)

6th Circuit Rules On Qualified Immunity In Prisoner Case

Last month in White v. Pauly, (S.Ct., Jan. 9, 2017), the U.S. Supreme Court in a police shooting case emphasized that when officials claim qualified immunity from damages, determining whether the official violated "clearly established" law requires examination of particularized facts rather than a determination at a "high level of generality." Yesterday the U.S. 6th Circuit Court of Appeals applied that principle in a suit by a prisoner claiming he was denied his 1st Amendment right to kosher meals.  In Hermansen v. Thompson, (6th Cir., Feb. 1, 2017), the court (citing White) upheld a finding of qualified immunity, saying:

... [W]e find the instant record devoid of support, in fact or law, for the notion that it should have been obvious to defendants that their provision of kosher food products to Hermansen, prepared in a separate kitchen facility, was nonetheless violative of his First Amendment free exercise rights because the same utensils used to prepare or serve otherwise approved meat products had also been used to prepare or serve otherwise approved dairy products, at some point, without having first been kashered and certified by a rabbi.

[Thanks to Tom Rutledge for the lead.]