Religion Clause

Tuesday, February 14, 2017

Pakistani Court Bans Public Valentine's Day Celebrations

AP reports that a court in Pakistan's capital of Islamabad has banned all Valentine's Day celebrations in public places or at official levels in the capital city. The court, whose ruling applies only in the capital city, said that the celebrations violate Islamic law. Pakistan's media regulator instructed all media outlets not to print or broadcast any Valentine's Day promotions.

Virginia Federal Judge Says Trump Travel Ban Likely Violates Establishment Clause

Yesterday another court ruled against President Trump's Executive Order that temporarily bars entry into the country of individuals from seven majority-Muslim nations. In Aziz v. Trump, (ED VA, Feb. 13, 2017), a Virginia federal district court concluded that Virginia had produced unrebutted evidence that it is likely to succeed on its Establishment Clause claim, saying in part:

The "Muslim ban" was the centerpiece of the president's campaign for months.... [Rudy] Giuliani said two days after the EO was signed that Trump's desire for a Muslim ban was the impetus for this policy.

The court enjoined enforcement of Section 3(c) of the Executive Order at any port of entry against Virginia residents how either were lawful permanent residents or who held a valid student visa or work visa at the time the Executive Order was signed. NBC4 News reports on the decision.

Settlement Reached In Suit Against Jehovah's Witness Congregation Over Sex Abuse

Penn Live reports that a settlement has been reached on the fifth day of a trial in Philadelphia, Pennsylvania in a suit against a Jehovah's Witness congregation and other Jehovah's Witness organizations. In the suit, plaintiff claims that as a teenager she was sexually abused by a member of her church and church elders covered up the situation and failed to report it to authorities after the girl's mother contacted church elders. The full text of the complaint in the case, Fessler v. Watchtower Bible and Tract Society of New York, Inc., (PA Com. Pleas, filed 3/26/2014), is discussed in another report by Penn Live.

Court Denies Preliminary Injunction In Tribal Challenge To Dakota Pipeline

AP reports that a federal district judge in Washington, D.C. yesterday refused to grant a temporary injunction against construction of the portion of the Dakota Access Pipeline running under Lake Oahe. The Cheyenne River and Standing Rock Sioux tribes had sued claiming that the pipeline violates their rights under the Religious Freedom Restoration Act. (See prior posting.) The judge ruled on the motion after an hour-long hearing, concluding that the Tribe's religious exercise would not be infringed before oil actually begins running through the pipeline. Full arguments on the motion will be heard by the court on Feb. 27.

Monday, February 13, 2017

Trump Justice Department Withdraws Objections To Nationwide Injunction In Transgender Bathroom Case

As previously reported, last year a Texas federal district court issued a nationwide preliminary injunction barring the federal government from enforcing Guidelines interpreting Title IX as barring discrimination by schools on the basis of gender identity. In particular the Guidelines took the position that transgender students must have access to restrooms and locker rooms consistent with their gender identity. Subsequently the Obama administration asked the court for a partial stay that would limit the injunction, pending appeal, to the 13 states that were plaintiffs in the case. As reported by AP, a hearing on that motion was to have been held Feb. 14. However on Friday, the Justice Department withdrew the government's request for a partial stay, and indicated it was "currently considering how best to proceed in this appeal." (Full text of court filing.)

Last week, the U.S. 9th Circuit Court of Appeals approved a similar nationwide injunction against President Trump's Executive Order barring travel from seven Muslim countries. (See prior posting.) In its unsuccessful motion for a stay (full text, see pg. 24), the Justice Department argued that a nationwide injunction was improper because it went beyond providing relief to the plaintiffs in the case.

Russians Divided Over Return of Famous Cathedral To The Church

AP reports that in St. Petersburg, Russia, competing demonstrations were staged yesterday over the city's decision, announced last month, to return St. Isaac's Cathedral to the Russian Orthodox Church. The Cathedral was seized after Soviets took control in 1917, and was turned into a museum. It has become one of the city's top tourist attractions. Opponents of the return are concerned that Church tours will begin to focus too much on the Cathedral's religious aspects at the expense of its architectural and cultural importance.

Sunday, February 12, 2017

USCIRF Issues New Report On Vietnam

Last week the U.S. Commission on International Religious Freedom released a report titled Religious Freedom in Vietnam: Assessing the Country of Particular Concern Designation 10 Years After its Removal. The Introduction summarizes the report's theme:

Of all the countries the U.S. government has designated as CPCs, Vietnam is unique in that it is the only one removed from the CPC list due to diplomatic activity. This raises several questions: Why was Vietnam first designated as a CPC? What was different about this designation that led to Vietnam’s swift removal from the list? If the strategy was a success in de-listing Vietnam, why has it not been replicated in other countries? This paper examines the history and efficacy of Vietnam’s CPC designation, ultimately arguing it should be re-designated.

Florida Judge Says Refusal To Sell Cake With Anti-Gay Message Is Not Religious Discrimination

A Florida Administrative Law Judge in a decision last week recommended to the Florida Commission on Human Relations that it find a Longwood, Florida bakery did not violate the state's public accommodation law when it effectively refused an order for a cake with the inscription "Homosexuality is an abomination unto the Lord." Cut the Cake bakery, owned by a mother and daughter, quoted a caller a price of $5,850 for the cake after the bakery had been the subject of thousands of calls per week when a You-Tube video was posted of a previous call in which the bakery refused to make a cake displaying an anti-homosexual message. In Mannarino v. Cut the Cake Bakery, (FL Div. Admin. Hearings, Feb. 9, 2017), petitioner claimed that the refusal constituted religious discrimination against him as a Christian. The judge ruled, however, that the bakery did not fall within the definition of "public accommodation" under Florida law since it does not sell food for consumption on the premises. Additionally he ruled that petitioner had not shown religious discrimination, saying:

Cut the Cake refused to fulfill Petitioner’s order, not because he was Christian, but because of what it perceived to be the purpose of his message. Cut the Cake considered Petitioner’s message mean-spirited, regardless of his religion or the Quote’s source.

St. Augustine Record reports on the decision.

Recent Prisoner Free Exercise Cases

In Fluker v. King, (5th Cir., Feb. 9, 2017), the 5th Circuit affirmed the dismissal of a suit by a Muslim inmate who complained that Muslim c-custody inmates could not attend Jumu’ah services outside of their unit while non-Muslim c-custody inmates could.

In Conway v. Alford, (8th Cir., Feb. 8, 2017), the 8th Circuit concluded that the mailroom's withholding of publications from the Church of Jesus Christ Christian, classified as a security threat/ terrorist group, did not substantially burden an inmate's religious exercise.

In Vasquez v. Rockland County, 2017 U.S. Dist. LEXIS 14746 (SD NY, Jan. 31, 2017), a New York federal district court dismissed a complaint by an inmate that he was prevented from observing Ramadan due to being placed on a suicide watch.

In Gilliam v. Baez, 2017 U.S. Dist. LEXIS 15680 (SD NY, Feb. 2, 2017), a New York federal district court dismissed without prejudice an inmate's complaint that on two occasions he was permitted to participate in Nation of Islam classes.

In Harris v. Norwood, 2017 U.S. Dist. LEXIS 15979 (WD AR, Feb. 6, 2017), an Arkansas federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 16205, Jan. 12, 2017) and permitted an inmate to proceed with his complaint that his free exercise rights were infringed when he, as a "pork free person", was denied pork free meal trays.

In Ayoubi v. Dart, 2017 U.S. Dist. LEXIS 16310 (ND IL, Jan. 31, 2017), an Illinois federal district court dismissed a complaint by a Muslim inmate who the court described as "an experienced pro se litigator." Plaintiff objected to limits on his access to religious services, refusal of post-Ramadan-fast meal trays, denial of a Halal diet containing meat, and prohibition on his using a prayer rug and wearing a head garment.

In Young v. Hooks, 2017 U.S. Dist. LEXIS 17115 (SD OH, Feb. 7, 2017), an Ohio federal magistrate judge recommended dismissing an inmate's complaint that during a search of his cell his bottle of prayer oil was poured out.

In Edwards v. Thomas, 2017 U.S. Dist. LEXIS 17111 (MD PA, Feb. 6, 2017), a Pennsylvania federal district court allowed a Muslim inmate to move ahead with his free exercise challenge to the refusal of his request for a kosher diet, which would have met his Halal diet requirements.

In Branco v. Milligan, 2017 U.S. Dist. LEXIS 18094 (ND OH, Feb. 7, 2017), an Ohio federal district court dismissed a complaint by an inmate that on one occasion officials overlooked his housing unit when calling Muslim inmates down for a meal during Ramadan.

In Wallace v. Olivarria, 2017 U.S. Dist. LEXIS 18148 (SD CA, Feb. 8, 2017), a California federal district court dismissed an inmate's claim that a change in the schedule for his prison job violated his right to practice his religion.

In Martinez v. Richardson, 2017 U.S. Dist. LEXIS 18188 (ED TX, Feb. 8, 2017), a Texas federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 18515, Jan. 19, 2017) and dismissed a complaint by a Satanist inmate that he was not permitted to perform Satanic rituals or possess various items (e.g. parchment paper, candles, a robe, a bell, a wand, a chalice) needed to practice his religion.

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.