Catholic Fringe Group Pushes Right-Wing Agenda

Yesterday's Detroit Free Press carries a lengthy feature article on the Ferndale, Michigan-based organization "Church Militant" which the report describes as:

a growing, Catholic fringe group hoping the forces that elected President Donald Trump will tear down the wall between church and state.

The report continues:

Church Militant broadcasts pro-life, anti-gay, anti-feminist, Islam-fearing, human-caused-climate-change-denying orthodox Catholic news on its website churchmiltant.com and through social media using high-tech, professional production studios that rival those at local TV news stations. It has 35 full-time employees (and is hiring more) who publish about 10 stories and three videos every weekday.

Its leader, Michael Voris, has compared Trump with Constantine, the Roman emperor whom he says was "not a moral man" but a "power-hungry egomaniac," but who saw it desirable to end the persecution of Christians. He was a human vessel who elevated Catholicism to the state religion, Voris said.

Recent Articles of Interest

From SSRN:

• William L. Saunders, Diarmuid F. O'Scannlain, Kim Colby, William P. Marshall & Robin Fretwell Wilson, Religious Liberty after Hobby Lobby: A Panel of the 2014 Federalist Society National Lawyers Convention, (Connecticut Law Review, Vol. 48, No. 3, 2016).
• Lucia Ann Silecchia, Rejecting a View that Any Human Life is Dispensable, (The Environmental Forum, p. 50 (March/April 2017)).
• Frederick Mark Gedicks, Rule of Law and Socially Constructed Reasons: Marriage Equality and Religious Accommodation, (5 Journal of Law, Religion & State, Forthcoming).
• Ashutosh Avinash Bhagwat, When Speech is Not 'Speech', (Ohio State Law Journal, Forthcoming).
• S.I. Strong, Transforming Religious Liberties: A New Theory of Religious Rights for National and International Legal Systems - Chapter One: Introduction, (Cambridge University Press, anticipated 2017).
• Caroline Mala Corbin, Justice Scalia, the Establishment Clause, and Christian Privilege, (First Amendment Law Review, Vol. 15, 2017).
• Joel Waldfogel & Pau M. Vaaler, Discriminatory Product Differentiation: The Case of Israel's Omission from Airline Route Maps, (February 16, 2017).
• David M. Schizer, Subsidies and Nonprofit Governance: Comparing the Charitable Deduction with the Exemption for Endowment Income, (Columbia Law and Economics Working Paper No. 558 (2017)).

From SSRN (European Issues):

• Mark Walters, Rupert Brown & Susann Wiedlitzka, Causes and Motivations of Hate Crime, (Equality and Human Rights Commission Research Report 102 (2016)).
• Mark Walters & Rupert Brown, Preventing Hate Crime, (October 9, 2016).
• Catherine Moore, Ariel Ricker, J. Michal Forbes & Alexander Ayer, Discrimination Based Upon Race, Religion, and Ethnicity When Filing for Asylum in the European Union (Policy Paper), (Advocates Abroad, 2017).

House Hearing On State of Religious Liberty In U.S.

Last Thursday, the House Judiciary Committee, Subcommittee on the Constitution and Civil Justice held a hearing on "The State of Religious Liberty in America." A video of the full hearing and transcripts of the prepared testimony of the four witnesses who testified are available on the Committee's website.  Testifying were representatives of the Christian Legal Society, Becket and Alliance Defending Freedom as well as Rabbi David Saperstein who until recently served as the U.S. Ambassador at-Large for International Religious Freedom. For a critical view of the hearing, see this report from Religion Dispatches.

European Court of Justice Advocate's Opinion on Tax Exemption For Catholic Church

In Congregación de Escuelas Pías Provincia Betania v. Ayuntamiento de Getafe, (CJEU, Feb. 16, 2017), an Advocate General's opinion recommended that the Court of Justice of the European Union hold that a construction tax exemption for a school building to which the Catholic Church is entitled under a 1979 agreement between Spain and the Holy See does not violate the the ban on anti-competitive state aid set out in Art. 107(1) of the Treaty on the Functioning of the European Union. The opinion allows the exemption only where any commercial educational services are merely ancillary to non-profit offerings. The exemption is allowed if at least 90% of its services are educational offerings in the context of the Church's social, cultural and educational mission.  Law & Religion UK has more on the decision.

Recent Prisoner Free Exercise Cases

In Scott v. Uhler, 2017 U.S. Dist. LEXIS 18624 (ND NY, Feb. 8, 2017), a New York federal magistrate judge recommended dismissing the complaint of a number of Muslim inmates that their 1st and 14th Amendment rights were violated when they were not allowed to attend Jumm'ah services on Dec. 25, 2015.

In Taylor v. Kelley, 2017 U.S. Dist. LEXIS 18430 (ED AR, Feb. 9, 2017), an Arkansas federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 19094, Jan. 25, 2017) and dismissed a complaint by two Muslim inmates that on the last day of Ramadan their fast-breaking snack was delivered one hour late.

In Ilarraza v. Chuta, 2017 U.S. Dist. LEXIS 20057 (MD PA, Feb. 10, 2017), a Pennsylvania federal magistrate judge recommended that a now-released inmate be allowed to move ahead with his complaint that he was denied a Spanish-English interpreter so he could learn more about his Native American religion and attend religious services.

In France v. Brown, 2017 U.S. Dist. LEXIS 20183 (SD CA, Feb. 13, 2017), a California federal district court dismissed an inmate's complaint that his parole conditions that included entry into a residential treatment center subjected him to religious indoctrination and were inconsistent with his religion of "Here-and-Nowism."

In Scott v. South Carolina Department of Corrections, 2017 U.S. Dist. LEXIS 19835 (D SC, Feb. 13, 2017), a South Carolina federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 20572, Jan. 26, 2017) and dismissed an inmate's complaint about the Department of Corrections' refusal in the past to recognize Shetaut Neter as a religion.  The religion is currently recognized.

In Oliver v. Adams, 2017 U.S. Dist. LEXIS 21518 (D CA, Feb. 14, 2017), a California federal magistrate judge recommended dismissing an inmate's complaint of refusals to accommodate his practice of his Shetaut Neter faith, including a Kemetic diet.

In Rountree v. Clarke, 2017 U.S. Dist. LEXIS 21776 (WD VA, Feb. 16, 2017), a Virginia federal district court dismissed a female inmate's complaint that she was not permitted to possess and use a yoga mat in her cell to practice yoga according to her Buddhist beliefs.

In Walters v. Livingston, 2017 Tex. App. LEXIS 1323 (TX App, Feb. 15, 2017), a Texas state appeals court allowed a former inmate to move ahead with his claim for damages and declaratory relief on his complaint that he was denied the right to personally smoke a "sacred ceremonial pipe" during religious ceremonies.

In Israel, Retailer Takes Criticism For Catalog Aimed At Ultra-Orthodox Jews

As U.S. law struggles to balance free exercise rights with legal non-discrimination mandates, this story from Israel yesterday demonstrates that new permutations may well arise.  The Forward and Jewish News Online report that the Swedish furniture retailer Ikea is receiving criticism for the catalog its Israeli affiliate distributed hoping to attract Haredi (ultra-Orthodox Jewish) customers.  The catalog contains no photos of women.  Only men and boys in clothing usually worn by religious Jews are shown using Ikea furniture. It is not unusual for Haredi newspapers to exclude photos of women.

SCOTUS Sets Oral Arguments In Trinity Lutheran Case For April 19

The U.S. Supreme Court has set oral argument in Trinity Lutheran Church v. Pauley for April 19. (Argument calendar.) In the case, the 8th Circuit rejected arguments that Missouri's Blaine Amendments violate the U.S. Constitution's 1st and 14th Amendments. At issue was the denial by Missouri's Department of Natural Resources of a grant application by Trinity Church for a Playground Scrap Tire Surface Material Grant that would have allowed it to resurface a playground at its day care and preschool facility on church premises. (See prior posting.)  The Court granted certiorari in the case over a year ago.  The delay in setting the case for oral argument has led to speculation that the Justices were hoping to hold off hearing the case until a replacement for the late Justice Scalia brought the Court up to its full complement. They may have succeeded since, as reported by The Hill, the Senate Judiciary Committee has now set March 20 as the date for hearings on Judge Neil Gorsuch's nomination to begin. SCOTUSblog's case page has links to all the briefs filed in the case and to commentary on the case.

Jewish Groups Criticize Trump's Response To Questions About Anti-Semitism

JTA reports that the American Jewish Committee and the Anti-Defamation League have issued statements criticizing President Donald Trump's response at his news conference yesterday to a question from reporter Jake Turx of Ami Magazine regarding anti-Semitism.  Here is a transcript of much of the exchange taken from the White House's full transcript of the news conference:

Q    ... [W]hat we are concerned about, and what we haven’t really heard be addressed is an uptick in anti-Semitism and how the government is planning to take care of it.  There have been reports out that 48 bomb threats have been made against Jewish centers all across the country in the last couple of weeks.  There are people who are committing anti-Semitic acts or threatening to --

THE PRESIDENT:  You see, he said he was going to ask a very simple, easy question.  And it’s not.  It’s not.  Not a simple question, not a fair question.  Okay, sit down.  I understand the rest of your question.

So here’s the story, folks.  Number one, I am the least anti-Semitic person that you’ve ever seen in your entire life.  Number two, racism -- the least racist person.  In fact, we did very well relative to other people running as a Republican....

... See, he lied about -- he was going to get up and ask a very straight, simple question.  So you know, welcome to the world of the media.  But let me just tell you something -- that I hate the charge.  I find it repulsive.  I hate even the question because people that know me -- and you heard the Prime Minister, you heard Netanyahu yesterday -- did you hear him, Bibi?  He said, I’ve known Donald Trump for a long time, and then he said, forget it.

So you should take that, instead of having to get up and ask a very insulting question like that.

The AJC's statement also criticized Trump's non-responsiveness to a similar question at his news conference (full transcript) on Wednesday with Israeli Prime Minister Netanyahu.

Jewish School's Challenge To Zoning Decision Is Ripe For Litigation

In Congregation Kollel, Inc. v. Township of Howell, N.J., (D NJ, Feb. 16, 2017), a New Jersey federal district court rejected a township's lack of ripeness defense in a suit by an Orthodox Jewish organization that is attempting to construct a classroom building, dormitory and faculty housing for a Talmudic academy.  The township rejected the academy's permit application and instead insisted that it apply for a zoning variance. Plaintiffs, believing that the land use decision was based on religious animus towards the Orthodox Jewish faith, sued claiming violations of RLUIPA, the Fair Housing Act, the 1st and 14th Amendments and state law.  The township argued that the suit should not be decided until plaintiffs had applied for a zoning variance.  The court held, however, that a variance application would not result in development of any additional factual record and that (except for one state law claim) plaintiffs can move ahead with their suit.

Washington Supreme Court Says Florist's Refusal To Sell For Same-Sex Wedding Violated State Law

In a widely followed case, the state of Washington's Supreme Court yesterday unanimously upheld a trial court's decision that a florist's religiously-motivated refusal to sell arranged flowers for a same-sex wedding violates the Washington Law Against Discrimination.  In State of Washington v. Arlene's Flowers, Inc.,WA Sup. Ct., Feb. 16, 2017), the court, summarizing its 59-page decision, said:

Discrimination based on same-sex marriage constitutes discrimination on the basis of sexual orientation. We therefore hold that the conduct for which Stutzman [the florist shop owner] was cited and fined in this case-refusing her commercially marketed wedding floral services to Ingersoll and Freed because theirs would be a same-sex wedding-constitutes sexual orientation discrimination under the WLAD. We also hold that the WLAD may be enforced against Stutzman because it does not infringe any constitutional protection. As applied in this case, the WLAD does not compel speech or association. And assuming that it substantially burdens Stutzman's religious free exercise, the WLAD does not violate her right to religious free exercise under either the First Amendment or article I, section 11 [of the state constitution] because it is a neutral, generally applicable law that serves our state government's compelling interest in eradicating discrimination in public accommodations.

A press release from ADF says that florist Barronelle Stutzman will seek U.S. Supreme Court review in the case. Links to pleadings and court rulings in the case can also be found on ADF's case page. (See prior related posting.) Tri-City Herald reports on the decision.

Trump Keeps Special Envoy For LGBTI Rights At State Department

Foreign Policy this week reports that  the Trump Administration has decided to keep Obama-appointee Randy Berry in his State Department position of Special Envoy for the Human Rights of LGBTI Persons. According to Foreign Policy:

The special envoy position was created during the Obama years to fight back against the discrimination of lesbian, gay, bisexual, and transgender people around the globe. Conservative groups have called the office an attempt to “entrench the LGBTI agenda” into the United States government, and accuse it of browbeating countries opposed to gay-friendly school textbooks and same-sex marriage.

Berry repeatedly stressed that his goal was to convince foreign governments to stop violence against gays and lesbians rather than pressure every nation to allow same-sex marriage. 

Berry, who is an openly gay career Foreign Service officer, will also stay on as deputy assistant secretary to the Bureau of Democracy, Human Rights, and Labor, a position to which he was appointed in the last hours of the Obama administration. Christian evangelical groups had called for Trump to dismiss Berry.

2016 Census of Hate Groups Released

The Southern Poverty Law Center yesterday released its annual census of hate groups and other extremist organizations. The census, which lists 917 groups for 2016, is in the form of an interactive map showing the location of each group. The 2015 census showed 892 hate groups.  Anti-Muslim hate groups rose to 101, up from 34 a year earlier.

6th Circuit: County Board's Prayer Practice Violates Establishment Clause

In Bormuth v. County of Jackson, (6th Cir., Feb. 15, 2017), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that the manner in which the Jackson County, Michigan Board of Commissioners opens its meetings with prayer violates the Establishment Clause.  The majority held that the County Commissioners went beyond that permitted by the Supreme Court's Town of Greece decision.  Plaintiff in the case was Peter Bormuth who described himself as a Pagan and an Animist. When during the public comment period at one meeting Bormuth complained that the invocation practice violated the Establishment Clause, one of the Commissioners "made faces expressing his disgust" and then turned his chair around so he would not look at Bormuth while he spoke.

Judge Moore's majority opinion said in part:

A combination of factors distinguishes this case from the practice upheld in Marsh and Town of Greece, including one important factor: the identity of the prayer giver.... Here, the Jackson County Commissioners give the prayers.... The difference is not superficial. When the Board of Commissioners opens its monthly meetings with prayers, there is no distinction between the government and the prayer giver: they are one and the same....

Because they are the ones delivering the prayers, the Commissioners—and only the Commissioners—are responsible for the prayers’ content.... And because that content is exclusively Christian, by delivering the prayers, the Commissionersare effectively endorsing a specific religion....

What is more, the prayer givers are exclusively Christian because of an intentional decision by the Board of Commissioners.... [A]t least one Jackson County Commissioner admitted that, in order to control the prayers’ content, he did not want to invite the public to give prayers....

First, the Board of Commissioners directs the public to participate in the prayers at every monthly meeting.... Second, the Board of Commissioners has singled out Bormuth for opprobrium. During a public meeting, a Commissioner stated that Bormuth’s lawsuit was an "attack on Christianity and Jesus Christ, period."...

Third, Bormuth has submitted evidence suggesting that the Board of Commissioners has “allocated benefits and burdens based on participation in the prayer.” ... Shortly after Bormuth filed his complaint, Jackson County officials nominated members for the County’s new Solid Waste Planning Committee from a pool of applicants.... Although Bormuth had three years of experience working on related issues, the Board of Commissioners did not nominate him.

Judge Griffin filed a lengthy dissenting opinion. AP reports on the decision.

Trump's EEOC Continues To Fight Transgender Employment Discrimination

Slate reported yesterday that it has become clear that the EEOC under the Trump Administration will continue to fight employment discrimination against transgender individuals.  In a brief (full text) filed with the 6th Circuit on Feb. 10, the EEOC argued that Title VII's prohibition on "sex" discrimination includes discrimination based on transgender status and/or transitioning.  It also argued that religious beliefs are not a basis for discriminating against transgender individuals. The brief comes in an appeal in EEOC v. R.G, a suit in which a Michigan federal district court upheld a funeral home's defense under the Religious Freedom Restoration Act to a charge that it engaged in gender stereotyping when it dismissed a transgender employee who was in the process of transitioning from male to female. (See prior posting.)

UPDATE: I should add that it has become clear that the EEOC will continue to take this position for now.  Because there is a vacancy on the Commission, a Democratic commissioner's position comes up for appointment later this year and the General Counsel position is vacant, the Commission could change its position in the future. The Slate article points out these possibilities.

New Suit Challenges Syrian Refugee Ban In Trump Executive Order; Hawaii Suit Moves Ahead

The portion of President Trump's travel ban Executive Order which suspends entry of refugees from Syria into the United States was challenged in a lawsuit filed on Monday in a Wisconsin federal district court by a Sunni Muslim who was granted asylum status because of torture and religious persecution he had
suffered in Syria.  The complaint (full text) in Doe v. Trump, (WD WI, filed 2/13/2017), says that the ban prevents plaintiff from bringing his wife and 3-year old daughter to the U.S. from Syria under a derivative asylum petition which is being processed by the government. The Executive Order prevents USCIS from adjudicating the petition and the State Department from issuing visas to his family.  It also contends that the nationwide temporary restraining order issued by a Washington federal district court is not broad enough to cover this situation because the TRO applies only to enforcement at "United States borders and ports of entry." This new suit alleges that the Executive Order violates the Establishment Clause, the Equal Protection and Due Process clauses and various statutory provisions. WRN News reports on the lawsuit.

Meanwhile, Hawaii's Attorney General announced yesterday that a federal district judge has partially lifted a stay he imposed last week on Hawaii's suit against the Executive Order. This allows an Hawaii resident to be added as a plaintiff.  The court also allowed Hawaii to file an amended complaint (full text) adding a challenge under the Religious Freedom Restoration Act. KHON News reports on these developments.

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.

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.