Saturday, February 11, 2017

Driver's License Name Challenge Dismissed

In Bey v. State of Ohio, Bureau of Motor Vehicles, (OH App., Feb. 3, 2017), an Ohio state appellate court dismissed as moot a mandamus lawsuit by a member of The Moorish Science Temple of America challenging the refusal by the Bureau of Motor Vehicles to issue him a driver's license with the suffix "Bey" added at the end of his birth name.  After plaintiff filed suit, the state issued him the driver's license.  In an attempt to avoid mootness, plaintiff sought to amend his complaint to seek a class action against all Ohio governmental agencies that impede the free exercise of nationality and religious freedom by Moorish Science members in the state. However the appeals court relied on the doctrine that a writ of mandamus will not issue to compel an act already performed.

Friday, February 10, 2017

8th Circuit Upholds Solicitation Ban At Revenue Offices

In Brown v. Arkansas Department of Administration, (8th Cir., Feb. 3, 2017), the U.S. 8th Circuit Court of Appeals affirmed the dismissal of a suit brought by a Rastafarian minister challenging a no-solicitation policy at certain state Revenue Offices.  The ban prevented the minister from continuing to setup a table on the lawn of a revenue office to seek signatures for a ballot initiative on the Arkansas Medical Cannabis Act. (See prior posting.)  The appeals court held that the private property immediately surrounding the revenue office was a nonpublic forum, that the ban was reasonably related to the State’s interest in running revenue offices, and was viewpoint neutral.

RFRA Challenge To Dakota Access Pipeline Filed

As previously reported, last month President Trump issued a Presidential Memorandum directing the Secretary of the Army to expedite approval of construction of the controversial Dakota Access Pipeline (DAPL). A federal district court had previously denied the Standing Rock Sioux Tribe an injunction against the pipeline. (See prior posting.) As reported by Jurist, yesterday the Cheyenne River Sioux Tribe which had already intervened as a plaintiff in the challenge to the pipeline filed three motions in the case. First it asked to be allowed to file an amended complaint adding a Religious Freedom Restoration Act claim. (Full text of motion.) It then filed a motion (full text and supporting memorandum ) seeking a preliminary injunction, and a separate motion seeking a temporary restraining order (full text and supporting memorandum) directing the Army Corps of Engineers to withdraw the easement/right-of-way issued on February 8 that permits drilling under federally-owned lands under and surrounding Lake Oahe, explaining:
The Lakota people believe that the mere existence of a crude oil pipeline under the waters of Lake Oahe will desecrate those waters and render them unsuitable for use in their religious sacraments.

Suit Challenges Treatment of Hinduism In California School Curriculum

Suit was filed this week in a California federal district court challenging on 1st and 14th Amendment grounds the treatment of Hinduism in the California public school curriculum.  The complaint (full text) in California Parents for the Equalization of Educational Materials v. Torlakson, (N CA, filed 2/8/2017), contends:
Defendants have adopted and are implementing content standards and a curriculum framework that are the foundation of the history-social science education provided to all California public school students. The content standards, adopted by the State Board of Education (SBE) in 1998, explain the teachings of major world religions, their virtues and central figures, and the belief of adherents in the divine origins of their faiths. This is true for all religions covered except Hinduism, which is not portrayed as virtuous, does not include mention of religious figures, and is described as an “intellectual tradition” without reference to a belief in divine origins....
East Bay Times reports on the lawsuit. [Thanks to Glenn Katon for the lead.]

Community Room Policy Excluding Worship Held Unconstitutional

In His Healing Hands Church v. Lansing Housing Commission, (WD MI, Feb. 8, 2017), a Michigan federal district court held unconstitutional a Housing Commission policy that allows outside groups to use community rooms in housing projects, except for religious purposes, worship, or activities.  The court concluded that "the Housing Commission’s policy constitutes impermissible viewpoint discrimination."

UPDATE: An ADF press release points out that this decision makes permanent a preliminary injunction issued in the case last year.

10th Circuit Denies En Banc Rehearing In 10 Commandments Case, With Dissent

In Felix v. City of Bloomfield, (10th Cir., Feb. 6, 2017), the U.S. 10th Circuit Court of Appeals denied an en banc rehearing in a case in which the 3-judge panel found that a Ten Commandments monument on a city hall lawn violates the Establishment Clause. (See prior posting.) Judge Kelly, joined by Judge Tymkovich, dissented from the denial of a rehearing in an opinion in which they argue for a dramatic re-examination of Establishment clause jurisprudence, saying in part:
This decision continues the error of our Establishment Clause cases. It does not align with the historical understanding of an “establishment of religion” and thus with what the First Amendment actually prohibits.
After an extensive examination of the history of the Establishment Clause, they say:
[T]he public display of memorials with historical significance should generally not be construed as an “establishment of religion,” even if one of the monuments also happens to be religious in nature.

Fired Doctor Settles Suit Against Georgia Health Department [Corrected]

In a press release yesterday, First Liberty announced that a settlement has been reached in Walsh v. Georgia Department of Public Health.  In the case, a doctor and public health expert who was dismissed from his position with the Georgia Department of Public Health within two weeks of his hiring claimed that he was terminated because of the content of sermons he had given as a Seventh Day Adventist lay minister. (See prior posting). The settlement agreement (full text) provides for the payment of $225,000 to plaintiff's lawyers.  I am informed by plaintiff's lawyers that the checks were deposited in an attorney trust account to be disbursed from there to the client, and that the majority of the settlement amount went to the client.  [An earlier version of this posting incorrectly concluded that the payment was entirely for attorneys' fees.] Atlanta Journal Constitution reports on developments.

Thursday, February 09, 2017

9th Circuit Upholds TRO Against Trump's Travel Ban On Due Process Grounds; Postpones Ruling On Religious Discrimination Issue

The U.S.9th Circuit Court of Appeals today, in a unanimous decision, refused to stay the Washington federal district court's temporary restraining order against enforcement of President Trump's Executive Order titled "Protecting the Nation From Foreign Terrorist Entry Into the United States." The opinion in State of Washington v. Trump, (9th Cir., Feb. 9, 2017), concludes that the government "has failed to establish that it will likely succeed on its due process argument in this appeal."  The court put off addressing plaintiffs' religious discrimination arguments, saying:
The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims. See, e.g., Church of the Lukumi Babalu Aye,Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. . . . Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”); Larson, 456 U.S. at 254-55 (holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-68 (1977) (explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decision makers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose).
The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.

British Lottery Approves Grants To Deal with Bats In Churches

With the U.S. Supreme Court still scheduled this term to hear the Trinity Lutheran case on government grants to religious institutions, this story from Britain presents an interesting comparative law example.  Britain's Heritage Lottery Fund distributes a share of the income from the National Lottery to projects for preserving and making accessible Britain's heritage. Yesterday the Fund announced a large 5-year grant for a "Bats In Churches" project, explaining in part:
The UK has internationally important populations of bats which are at risk due to decreases in precious woodland habitats. Churches offer alternative sanctuaries for maternity roosts and hibernation. However, bats in churches can cause serious problems as bat droppings can restrict activities, damage historic artifacts and put a strain on the volunteers who look after the buildings.
Thanks to input from skilled professionals who will work with volunteers, solutions to these problems will be shared with hundreds of churches.
[Thanks to Law & Religion UK for the lead.]

Court Upholds Denial of Football Stadium Loudspeakers For Prayer

In Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc., (MD FL, Feb. 3, 2017), a Florida federal magistrate judge recommended dismissing a suit brought by a Christian high school complaining that it was denied permission to use the stadium loudspeaker system to deliver a prayer at the Championship Game in which its football team was playing.  The opinion finds that mere denial of loudspeaker access did not amount to a free exercise violation, saying in part:
Nowhere ... is there a single allegation that Cambridge Christian or any of its members were deprived of their right to pray at the Championship Game. On the contrary, both Cambridge Christian’s team and the opposing team were permitted to pray together at the most centrally focused and public area of the Stadium—the 50-yard line.... There are no allegations that Cambridge Christian was prohibited from passing out flyers with pre-printed prayers or that the cheerleaders were prohibited from holding up large signs spelling out prayers for those in the stands to say in concert with the team.
The opinion also rejected free speech and Establishment Clause claims. WUSF reports on the decision.

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.

Wednesday, February 08, 2017

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.

Tuesday, February 07, 2017

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.

Monday, February 06, 2017

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:
From SSRN (Tax and Non-Profits):
From SmartCILP:

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.