Virginia Federal Court OK's Trump's Second Travel Ban EO

While federal district courts in Hawaii and Maryland have issued nationwide injunctions barring enforcement of President Trump's second travel ban Executive Order finding that it violates the Establishment Clause, a Virginia federal district court has now reached an opposite conclusion.  In Sarsour v. Trump, (ED VA, Marc 24, 2017), the court said in part:

Given the revisions in EO-2, the question is now whether the President's past statements continue to fatally infect what is facially a lawful exercise of presidential authority. In that regard, the Supreme Court has held that "past actions [do not] forever taint any effort on [the government's] part to deal with the subject matter. . . ." This Court is no longer faced with a facially discriminatory order coupled with contemporaneous statements suggesting discriminatory intent. And while the President and his advisors have continued to make statements following the issuance of EO-1 that have characterized or anticipated the nature of EO-2, the Court cannot conclude for the purposes of the Motion that these statements, together with the President's past statements, have effectively disqualified him from exercising his lawful presidential authority under Section 1182(f). In other words, the substantive revisions reflected in EO-2 have reduced the probative value of the President's statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose.

The Hill reports on the decision.

Religious Exemptions In ACA and FICA Upheld

In Olson v. Social Security Administration, 2017 U.S. Dist. LEXIS 41469 (D ND, March 22, 2017), a North Dakota federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 41468, March 3, 2017) and dismissed plaintiff's challenge to the constitutionality of the religious exemptions in the Affordable Care Act and FICA.  In rejecting plaintiff's Establishment Clause claim, the magistrate judge said in part:

Religious sects whose members qualify for the ACA's religious exemption have made reasonable provision for their dependent members for a substantial period of time; that is designed to protect other taxpayers, not to improperly favor or target any religion.

Another Suit Challenges Trump's Latest Travel Ban Executive Order

Last week, another suit was filed challenging President Trump's latest travel ban Executive Order on, among others, Establishment Clause and equal protection grounds.  The suit was brought by the largest organization of Shi’a Muslims in the United States,as well as by a Yemeni couple living in the United States. The complaint (full text) in Universal Muslim Association of America, Inc. v. Trump, (D DC, filed 3/23/2017), seeks a nationwide injunction barring the government from enforcing the sections of the Executive Order that temporarily bar or make more difficult travel into the U.S. by nationals of certain majority-Muslim nations.  As explained by a press release from Americans United:

There are two sets of plaintiffs in the case. They include the Universal Muslim Association of America (UMAA), the country’s largest organization of Shi’a Muslims, whose members are being deprived of religious learning, worship and services because their religious scholars almost exclusively hail from Iran, Iraq and Syria.  One of their scholars has already been denied entry under the first Muslim ban executive order, and he and other scholars are likely to be denied entry again.  The second set of plaintiffs are John and Jane Doe -- parents blocked from bringing their children home from Yemen.

Supreme Court Hears Oral Arguments In ERISA "Church Plan" Cases

The U.S. Supreme Court today heard consolidated oral arguments in three cases raising the question of when pension plans of religiously affiliated health care systems qualify for the "church plan" exemption under ERISA.  The three cases are Advocate Health Care v. Stapleton, St. Peter's Health Care v. Kaplan and Dignity Health v. Rollins. The full transcript of the oral arguments are available from the Supreme court's website.  A fuller explanation of the issues involved is set out in this prior posting.  AP reports on the arguments. Huge dollar amounts of potential underfunding are at stake nationwide.

5th Circuit Upholds Student Invocations At School Board Meetings

In American Humanist Association v. McCarty, (5th Cir., March 20, 2017), the U.S. 5th Circuit Court of Appeals upheld a school board's practice of opening its meetings with presentations from students, which often involves a prayer.  As described by the court:

Since 1997, two students have opened each session—with one leading the Pledge of Allegiance and the Texas pledge and the other delivering some sort of statement, which can include an invocation. Those student presenters, typically either elementary- or middle-school students, are given one minute. [School board] officials do not direct them on what to say but tell them to make sure their statements are relevant to school-board meetings and not obscene or otherwise inappropriate. At a number of meetings, the student speakers have presented poems or read secular statements. But ... they are usually an invocation in the form of a prayer, with speakers frequently referencing “Jesus” or “Christ.”

Upholding the practice, the court said that the  in part:

The key question ... is whether this case is essentially more a legislative-prayer case or a school-prayer matter....We agree with the district court that “a school board is more like a legislature than a school classroom or event.” The BISD board is a deliberative body, charged with overseeing the district’s public schools, adopting budgets, collecting taxes, conducting elections, issuing bonds, and other tasks that are undeniably legislative....

In a press release, the American Humanist Association indicates that it will file a petition to seek an en banc rehearing in the case.

Religion Clause To Take A Publication Break

Dear Readers:

Religion Clause will be going on a publication break until approximately the end of March.  Check back for my resumption of postings at that time.

Howard Friedman

Recent Articles of Interest

From SSRN:

• Rafael Domingo, Theology and Jurisprudence. A Good Partnership?, (Journal of Law and Religion, 32, 2017, Forthcoming).
• Rafael Domingo, The Constitutional Justification of Religion, (March 9, 2017).
• Christine P. Bartholomew, Exorcising the Clergy Privilege, (Virginia Law Review, Vol. 103, 2017).
• Paul H.Robinson and Research Group, Criminal Law, Draft Report of the Somali Criminal Law Recodification Initiative, (U of Penn Law School, Public Law Research Paper No. 17-13 (2017)).
• Elizabeth Sepper, Zombie Religious Institutions, (Northwestern University Law Review, Vol. 112, 2018, Forthcoming).
• Peter H. Schuck, One Nation Undecided: Clear Thinking About Five Hard Issues that Divide Us, (Princeton University Press, March 2017).
• Lisa Mathews, Free Exercise and Third-Party Harms: Why Scholars Are Wrong and RFRA Is Right, (Trinity Law Review, Forthcoming).

From elsewhere:

• Marsha B. Freeman, Holier Than You and Me: ‘Religious Liberty’ Is the New Bully Pulpit and Its New Meaning Is Endangering Our Way of Life, 69 Arkansas Law Review 881 (2017).
•  Tara Smith, What Good Is Religious Freedom? Locke, Rand, and the Non-Religious Case for Respecting It, 69 Arkansas Law Review 944 (2017).

Ministerial Exception Does Not Apply To Exercise Science Teacher At Christian University

In Richardson v. Northwest Christian University, (D OR, March 16, 2017), an unmarried professor of exercise science at a Christian university sued for discrimination after she was fired because she became pregnant out of wedlock and refused to either marry her child's father or stop living with him.  The school contended that the professor's action were inconsistent with its policy that faculty are to live their lives in conformity with Biblical Christianity.  The court held that the "ministerial exception" doctrine does not require it to dismiss the lawsuit, saying in part:

[Plaintiff] was expected to integrate her Christianity into her teaching and demonstrate a maturing Christian faith. But any religious function was wholly secondary to her secular role: she was not tasked with performing any religious instruction and she was charged with no religious duties such as taking students to chapel or leading them in prayer. If plaintiff was a minister, it is hard to see how any teacher at a religious school would fall outside the exception.

The court granted plaintiff summary judgment on her marital status discrimination claim under Oregon law. It allowed her to move to trial on her claims of pregnancy discrimination and breach of contract.

Another Court Bars Enforcement of Trump's Second Travel Ban

As reported by Bloomberg Politics, yesterday a Maryland federal district court became the second court to bar enforcement of part of President Trump's second "travel ban" Executive Order. In International Refugee Assistance Project v. Trump, (D MD, March 16, 2017), the court issued a nationwide preliminary injunction barring enforcement of Section 2(c) of the Second Executive Order. That section imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen.  The court said in part:

The Second Executive Order does not explain specifically why this extraordinary, unprecedented action is the necessary response to the existing risks. But while the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban. Thus, it is more likely that the primary purpose of the travel ban was grounded in religion, and even if the Second Executive Order has a national security purpose, it is likely that its primary purpose remains the effectuation of the proposed Muslim ban. Accordingly, there is a likelihood that the travel ban violates the Establishment Clause.

Recent Prisoner Free Exercise Cases

In Givens v. Vaughn, 2017 U.S. Dist. LEXIS 31366 (SD IL, March 6, 2017), an Illinois federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 31374, Feb. 6, 2017) and dismissed a complaint by a Hebrew Israelite inmate over the method of preparing kosher meals, refusal of separate Hebrew Israelite Sabbath services, and inability to celebrate certain feasts.

In Jones-Bey v. Jefferson County Government, 2017 U.S. Dist. LEXIS 31827 (WD KY, March 6, 2017), a Kentucky federal district court allowed a recently-released inmate to move ahead with his damage action for denying him permission to attend Islamic Services and denying him Halal meals.

In Munt v. Minnesota Department of Corrections, 2017 U.S. Dist. LEXIS 32235 (D MN, March 6, 2017), a Minnesota federal district court ordered defendants to file a supplemental affidavit responding to a Christian inmate's complaint that the lack of privacy in prison facilities (showers, toilets, etc.) violates his religious belief against exposing himself.

In Barrera-Avila v. Watts, 2017 U.S. Dist. LEXIS 33116 (SD GA, March 8, 2017), a Georgia federal magistrate judge recommended dismissing an inmate's complaint regarding interference with the practice of his Santeria religion.

In Hoke v. Lyle, 2017 U.S. Dist. LEXIS 32445 (SD GA, March 7, 2017), a Georgia federal district court adopted a magistrate's recommendation and dismissed an inmate's complaint over policies that resulted in his not receiving his packages containing a study Bible and bible study lessons.

5 Judges In 9th Circuit Would Uphold Trump's First Travel Ban

Last month, a 3-judge panel of the U.S. 9th Circuit Court of Appeals refused to stay the Washington federal district court's temporary restraining order against enforcement of President Trump's first "travel ban" Executive Order. (See prior posting.)  On March 8, after the President issued a narrower and more focused new Executive Order, a 3-judge panel of the 9th Circuit granted the government's unopposed motion to dismiss its underlying appeal of the district court's decision, leaving the case pending at the district court level. A judge of the 9th Circuit then called for a vote on en banc reconsideration of the order to dismiss in order to vacate the panel's original opinion upholding the district court's stay. In State of Washington v. Trump, (9th Cir., March 15, 2017), reconsideration failed to receive a majority vote.  However five judges (Judges Bybee, Kozinski, Callahan, Bea, and Ikuta) filed a dissenting opinion, criticizing the panel's original rationale for upholding the stay.  The dissenters focused on the Supreme Court's decision in Kleindienst v. Mandel (1972) relating to the deference which courts should give to executive action affecting aliens who are outside the U.S.  CNN points out that the five dissenters were all appointed by Republican presidents.

Lynn to Retire As Head of Americans United

In a press release issued yesterday. Americans United for Separation of Church and State announced that its long-time executive director Barry W. Lynn will retire at the end of 2017.  Lynn has served as the head of AU for 25 years.  In a letter to AU members and supporters, Lynn said that a search for his successor is already under way.

Appeals Court OK's Court-Ordered Meeting of Church Members

In Hawkins v. St. John Missionary Baptist Church of Bakersfield, California, (CA App., March 15, 2017), a California state appellate court upheld a trial court's determination that it could use neutral principles of state non-profit corporation law to order a church's Board of Deacons to call a meeting of members to vote on whether to remove the church's pastor. The appeals court said in part:

[T]he court may apply neutral principles of law based on the church’s own constitution, bylaws and rules, and relevant California statutes.... Thus, a court may determine whether an election in which a pastor was removed was properly conducted according to the church’s bylaws, rules and regulations. In other words, the court may assist the church in acting within its proper sphere under its own rules and regulations to protect civil and property rights.

At the meeting, overseen by a court-appointed referee, those favoring removal of the pastor prevailed by 1 vote. The appeals court concluded that the referee had wrongly excluded the votes of 3 members, and remanded the case for the trial court to redetermine the election results after counting those votes.

Hawaii Federal Court Bars Enforcement of Key Provisions of Second Travel Ban

Today a Hawaii federal district court issued a nationwide temporary restraining order prohibiting enforcement of Section 2  (90 day ban on entry into U.S. of nationals of six Muslim-majority nations) and Section 6 (120 day suspension of entry of refugees) of President Trump's second "travel ban" Executive Order.  The Executive Order was scheduled to go into effect tomorrow. (See prior posting.)  The lawsuit was brought by the state of Hawaii and by the Imam of the Muslim Association of Hawai‘i.  In State of Hawaii v. Trump, (D HI, March 15, 2017), a Hawaii federal district court concluded that:

Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.

The court explained its conclusion in part as follows:

The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.... The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.”... The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry.

According to Hawaii News Now,  President Trump reacted to the ruling during a rally in Nashville, saying in part:

This is, in the opinion of many, an unprecedented judicial overreach. This ruling makes us look weak, which by the way, we no longer are, believe me.  We're going to fight this terrible ruling. We're going to fight this case as far as it needs to go, including all the way up to the Supreme Court.

Washington Post reports on today's decision. Josh Blackman's Blog has a lengthy post reviewing cases on the application of the Establishment Clause to immigration law matters and reaching a different conclusion than did the Hawaii court about the Executive Order's constitutionality..

NYC Arrangement On Controversial Circumcision Method Apparently Is Not Working

In September 2015, the New York City Board of Health repealed its largely unenforced regulations that required parental consent forms be signed in cases of ritual circumcision using the direct oral suction technique (metzitzah b'peh). The original regulations were adopted to prevent passage of the herpes simplex virus to infants.  In exchange for the repeal, the Orthodox Jewish community was to cooperate in banning mohels  who are found to have infected an infant. (See prior posting.) The New York Post reported Monday that since the the 2015 arrangement by the DeBlasio administration, there have been six case of herpes.  However only two of the six mohels involved have been identified, and those two were not removed, but merely advised not to use the controversial direct oral suction method.  Mayor DeBlasio says the city is reviewing the situation.

City's Settlement of Mosque Litigation Challenged By New Lawsuit

As previously reported, last month the city of Sterling Heights, Michigan reached settlements in two related lawsuits challenging the city's denial of a land use application filed by an Islamic group that wants to construct a mosque on five adjoining lots in the city. Now several individuals have filed a federal lawsuit challenging the settlement.  The complaint (full text) in Youkhana v. City of Sterling Heights, (ED MI, filed 3/13/2017), seeks a declaration that the settlement is invalid and unenforceable. It contends that the city violated plaintiffs' 1st, 4th and 14th Amendment rights, including the Establishment Clause, in the procedures used at the City Council meeting considering the settlement.  It also claims a violation of the Michigan Open Meetings Act. the complaint describes the procedures used at the meeting as follows:

The City ... (1) adopted an ad hoc rule that limited speakers wanting to address the Consent Judgment agenda item to just 2 minutes, thereby severely limiting Plaintiffs’ right to express their views at this public hearing, even though the Mayor allowed other speakers addressing less controversial matters that evening to speak at great length; (2) prohibited certain views based on their content and viewpoint (i.e., no one was permitted to mention religion or even hint at it when discussing the Consent Judgment matter, and certainly no one was permitted to make any statement that might be deemed critical of Islam); (3) directed the City police to seize individuals and escort them out of the meeting if the Mayor opposed what they were saying about the Consent Judgment matter; and (4) ordered the citizens out of the public meeting when it came time to actually vote on the Consent Judgment.

Detroit News reports on the lawsuit.

Recent Prisoner Free Exercise Cases

In Robinson v. Superintendent Houtzdale SCI, (3d Cir., March 6, 2017), the 3rd Circuit affirmed the dismissal of an inmate's complaint that he was unable to participate in the sex offender’s treatment program because it requires him to "confess" to a therapist, and as a Christian the Bible only permits him to confess to God.

In Adams v. Scott, 2017 U.S. Dist. LEXIS 28966 (CD IL, March 1, 2017), an Illinois federal district court dismissed a complaint by several civilly committed individuals that their nondenominational Christian religious beliefs were not accommodated.

In Carawan v. McLarty, 2017 U.S. Dist. LEXIS 29485 (ED NC, March 2, 2017), a North Carolina federal district court dismissed an inmate's claim that his free exercise rights were infringed when authorities confiscated his mail which contained postage stamps donated to him by Muslim inmates practicing zakat.

In Ayers v. Esgrow, 2017 U.S. Dist. LEXIS 30124 (WD NY, March 1, 2017), a New York federal district court allowed an inmate to move ahead with his complaint that a correctional officer vindictively seized his personal religious property, removed him from his religious clerk position and filed a falsified misbehavior report against him.

In Barros v. Wetzel, 2017 U.S. Dist. LEXIS 30498 (MD PA, March 2, 2017), a Pennsylvania federal magistrate judge recommended allowing a Muslim inmate to move ahead with his complaint that authorities refused to provide him with a medically prescribed therapeutic diet tray during the Ramadan fast.

European Court of Justice Upholds Neutral Employment Rules Barring Religious Dress

The Court of Justice of the European Union today decided two cases raising the question of whether private employers may prohibit Muslim employees from wearing a headscarf at work.  In a case from Belgium, Achbita v. G4S Secure Solutions NV, (CJEU, March 14, 2017), the Court's Grand Chamber ruled:

Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of that directive.

By contrast, such an internal rule of a private undertaking may constitute indirect discrimination within the meaning of Article 2(2)(b) of Directive 2000/78 if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, and the means of achieving that aim are appropriate and necessary, which it is for the referring court to ascertain.

In a case from France, Bougnaoui v. Micropole SA,  (CJEU, March 14, 2017), however, the Court's Grand Chamber held that where an employer does not have a general rule on dress:

Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of that provision.

The Court issued a press release summarizing the decisions. The Guardian reports on the decision.

7th Circuit Upholds Enhanced Sentence For Hajj Fraud Defendant

In United States v. Minhas, (7th Cir., March 10, 2017), the U.S. 7th Circuit Court of Appeals upheld the 114 month prison sentence imposed on a travel agent convicted in two separate cases of wire and mail fraud. One of the cases involved selling 54 customers purported Hajj travel packages when defendant was unable to provide the necessary visas for travel to Saudi Arabia.  The district court imposed sentence enhancement under the Sentencing Guidelines because the offense resulted in substantial financial hardship to the victims.  The appeals court upheld the district court's consideration of victims as a group rather than individually in making this determination.  The court added:

It is also worth noting that the district court understood that, at least in the Lightstar Hajj case, the harm was not just the loss of money, but was also a spiritual injury inflicted when it became impossible for the victim to make the hajj.... While being deprived of this opportunity (for a year at the very least) may not constitute a financial loss in the traditional sense of losing dollars from a bank account, it is a significant alteration in life circumstances, as are many of the factors pertinent to interpreting “substantial financial hardship”....

11th Circuit: Title VII Does Not Bar Sexual Orientation Discrimination

In Evans v. Georgia Regional Hospital, (11th Cir., March 10, 2017), the U.S. 11th Circuit Court of Appeals in a 2-1 decision held that Title VII of the 1964 Civil rights Act does not protect against employment discrimination on the basis of sexual orientation. Jude Martinez, in his majority opinion, held:

Our binding precedent forecloses such an action. Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)4 (“Discharge for homosexuality is not prohibited by Title VII . . . .”). “Under our prior precedent rule, we are bound to follow a binding precedent in this Circuit unless and until it is overruled by this court en banc or by the Supreme Court.”

Judge Pryor concurring wrote in part:

I write separately to explain the error of the argument of the Equal Employment Opportunity Commission and the dissent that a person who experiences discrimination because of sexual orientation necessarily experiences discrimination for deviating from gender stereotypes.  Although a person who experiences the former will sometimes also experience the latter, the two concepts are legally distinct. And the insistence otherwise by the Commission and the dissent relies on false stereotypes of gay individuals.

Judge Rosenbaum, dissenting in part, wrote:

Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be—specifically, that women should be sexually attracted to men only. And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. That is discrimination “because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1), and it clearly violates Title VII under Price Waterhouse [v. Hopkins, 490 U.S. 228 (1989)].

Atlanta Journal Constitution reports on the decision.