Recent Articles of Interest

From SSRN:

• Valeriano Diviacchi, Why Tolerate Law? (April 7, 2017).
• Eric Owusu Boahen & Emmanuel C. Mamatzakis, The Moderating Effect of Legal Environment on Culture and Religiosity Towards Classification Shifting Behaviour – Global Evidence, (April 9, 2017).
• Cameron Rode, Faith, Football, and the First Amendment: Threading the Needle between Establishment and Free Exercise, (November 21, 2016).
• Carl H. Esbeck, Do Discretionary Religious Exemptions Violate The Establishment Clause?, (University of Missouri School of Law Legal Studies Research Paper No. 2017-13 (2017)).
• Heidi Brady & Robin Fretwell Wilson, The Future of Religious Liberty Protections in Illinois: Harmonizing Religious Exercise and Legitimate Government Concerns, (Chapter 2, In: An Illinois Constitution for the Twenty-First Century, 2017).
• Amos A. Israel-Vleeschhouwer, Introducing Jews' Law Through the Study of Genocide and Rape, (Jewish Law Association Studies XXVI (2016), 70-109).
• Elizabeth Hubertz, Loving the Sinner: Evangelical Colleges and Their LGB Students, (35 Quinnipiac Law Review 147 (2017)).
• Michael J. Bazyler, The Holocaust at Nuremberg: What the Record Reveals, (Loyola of Los Angeles International and Comparative Law Review, Vol. 39, 2017).
• Iain T. Benson, Getting Religion and Belief Wrong by Definition: Why Atheism and Agnosticism Need to Be Understood as Beliefs and Why Religious Freedom Is Not 'Impossible': A Response to Sullivan and Hurd, (April 20, 2017).

From SSRN (Legal Issues and Islam):

• Ahmed A. Altawyan, Rethinking Gender Equality in the Workplace, (Review of Integrative Business and Economics Research, Vol. 6, No. 2, pp.142-146, April 2017).
• Andrea Pin, Is There a Place for Islam in the West? Adjudicating the Muslim Headscarf in Europe and the United States, (Notre Dame Law Review, Forthcoming).
• Lucas Newbill, A Nurse's Face: The Burqa in the Hospital, (North Carolina Central Law Review. Vol. 39, Pg. 33, 2017).

Recent Prisoner Free Exercise Cases

In Jenkins v. Campose, (9th Cir., April 21, 2017), the 9th Circuit, reversing the ditrict court in part, held that defendants failed to show that a prohibition on wudhu in one of the prison restrooms is rationally related to a legitimate and neutral governmental objective.

In Nevels v. Chapman, 2017 U.S. Dist. LEXIS 59530 (ED AR, April 19, 2017), an Arkansas federal district court adopted a magistrate 's recommendation (2017 U.S. Dist. LEXIS 59620, March 28, 2017) and dismissed an inmate's complaint that on one occasion his lunch tray contained pork which he will not eat for religious reasons

In Goddard v. Alexakos, 2017 U.S. Dist. LEXIS 57951 (ED KY, April 17, 2017), a Kentucky federal district court allowed an inmate to proceed with his complaint that authorities do not permit The Way (a non-Protestant Christian group) to hold separate worship services.

In Wright v. Hauffman, 2017 Pa. Commw. Unpub. LEXIS 285 (PA Commw., April 21, 2017), a Pennsylvania appellate court reversed the dismissal of an inmate's claim that Nation of Islam group religious services were not available.

In Hill v. Skrah, 2017 U.S. Dist. LEXIS 57279 (D OR, April 11, 2017), an Oregon federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 57430, March 14, 2017) and dismissed on qualified immunity grounds an inmate's complaint that he was not given kosher meals.

In Smith v. Wildermuth, 2017 U.S. Dist. LEXIS 57318 (ND NY, April 14, 2017), a New York federal district court permitted a Muslim inmate to move ahead with his retaliation claim (but not his free exercise claim) stemming from his refusal to interrupt his prayer to respond to a corrections officer.

3 Indicted In Detroit On Charges of Female Genital Mutilation

On Thursday, the U.S. Attorney's Office for the Eastern District of Michigan announced the arrest of a Detroit physician and his wife on charges of violating the federal ban on female genital mutilation. (Full text of criminal complaint.) Fakhruddin Attar and his wife Farida were charged with conspiring with Dr. Jumana Nagarwala who was arrested earlier this month in Detroit and ordered detained on pending trial. (Press release and criminal complaint in Nagarwala case.) As reported yesterday in a background article in the Detroit Free Press:

All three defendants  belong to a small, Indian-Muslim community known as the Dawoodi Bohra, whose members say genital cutting is a deeply entrenched social and cultural norm, with some women viewing it as normal as having a period. Celebration parties are held after the cuttings, and the women and girls are supposed to keep it a secret. One of the key reasons for the procedure, victims say, is to curb a woman's sexuality.

According to an earlier Detroit Free Press report:

Nagarwala has claimed through her lawyer that she did not engage in any actual cutting, but rather that she removed a membrane from the genital area using a "scraper" and gave it to the parents to bury in the ground as part of a religious custom within  the Dawoodi Bohra community.

On Friday, Anjuman-e-Najmi Detroit, an umbrella organization for the Dawoodi Bohra community in Detroit, issued a statement reading in part:

The Dawoodi Bohras do not support the violation of any U.S. law, local, state or federal.  We offer our assistance to the investigating authorities. Any violation of U.S. law is counter to instructions to our community members.  It does not reflect the everyday lives of the Dawoodi Bohras in America.

Apparently these are the first defendants charged under 18 USC 116 prohibiting female genital mutilation.

Pence In Jakarta Praises Moderate Islam

Vice President Mike Pence's comments at his press conference in Jakarta, Indonesia on Thursday led Haaretz to run an article titled Pence's Visit to Indonesia Another Strike in Internal White House Battle Over Islam.  In his remarks to the press (full text), Pence said in part:

As the second and third largest democracies in the world, our two countries share many common values -- including freedom, the rule of law, human rights, and religious diversity.

 The United States is proud to partner with Indonesia to promote and protect these values, the birthright of all people....

Later today I’m greatly humbled to have the privilege to visit Indonesia’s national mosque, where I’ll have the opportunity to speak with leaders of many faiths.

And, Mr. President, I’m very much looking forward to that visit and that honor.  

 As the largest majority Muslim country, Indonesia’s tradition of moderate Islam, frankly, is an inspiration to the world.  And we commend you and your people. 

In your nation, as in mine, religion unifies -- it doesn’t divide.  It gives us hope for a brighter future, and we are all grateful for the great inspiration that Indonesia provides for the world.

Pence Meets With Interfaith Leaders In Indonesia

Yesterday, as part of his trip to Asia, Vice President Mike Pence met with interfaith religious leaders in Indonesia.  The White House readout on the meeting (full text) in addition to listing the 17 participants said:

Today, Vice President Mike Pence participated in an interfaith dialogue with faith leaders of Islam, Buddhism, Christianity, Hinduism, and Confucianism at the conclusion of his tour of the Istiqlal Mosque in Jakarta, Indonesia. Vice President Pence expressed appreciation to Indonesia for its shared commitment to religious freedom and reaffirmed that the United States will continue to defend this fundamental freedom, at home and abroad.

9th Circuit Judge John Noonan Dies At Age 90

Ninth Circuit Senior Judge John T. Noonan, Jr. died on April 17 at the age of 90. A News Release from the 9th Circuit described Noonan as "a distinguished jurist and an eminent scholar with a particular focus on the historical development of moral concepts." Before he was appointed to the bench, Noonan was a law professor at Notre Dame and then at Boalt Hall.  He was also a prolific scholar, as pointed out by the same News Release:

His major publications include 13 books, most notably “Bribes,” a magisterial historical study of bribery published in 1984; “The Lustre of Our Country: The American Experience of Religious Freedom,” a 1998 tome tracing the origins of religious freedom back to the Founders; and “Contraception: A History of Its Treatment by the Catholic Theologians and Canonists.” Published in 1966, “Contraception” is said to have influenced Pope Paul VI to create a commission to study the issue, to which Judge Noonan served as an advisor.

Canadian Provinces May Not Fund Non-Catholic Students In Catholic Schools

Canada's Constitution Act of 1867 (Sec. 93) guarantees Catholics and Protestants in the three Canadian provinces of Alberta, Saskatchewan and Ontario the right to petition the provincial government to create a separate denominational school for them when they comprise a minority in a school attendance area. In Good Spirit School Division No. 204 v. Christ the Teacher Roman Catholic Separate School Division No. 212, (QB Sask., April 20, 2017), a Saskatchewan trial court in a 230-page opinion held that it is a violation of Canada's Charter of Rights and Freedoms for the provincial government to provide funding for non-Catholic students at government-supported Catholic schools.  The court held that Catholic separate schools have no constitutional right to receive funding for non-Catholic students and that it violates the province's duty of religious neutrality, as well as guarantees of equality, to fund non-minority faith students in denominational schools.  Global News reports on the decision.

Woman Sues Claiming Her Firing Was For Not Being Christian Enough

Suit was filed earlier this week in a Texas trial court by a managerial employee of Gulf Winds International who alleges that she was fired because she was not Christian enough.  The complaint (full text) in Thomson v. Gulf Winds International, Inc., (TX  Dist. Ct., filed 4/18/2017) alleges that the company "discriminated and retaliated against Plaintiff based on religion and because of her opposition of forced religious material in the work place in violation of the Texas Commission on Human rights Act...." Courthouse News Service reports on the lawsuit.

Russian Supreme Court Judge Bans Jehovah's Witness Organizations As Extremist Groups

According to Forum 18, in Russia yesterday, after six days of hearings Supreme Court Judge Yury Ivanenko declared the Jehovah's Witness national headquarters in St. Petersburg and all 395 of its local organizations to be "extremist" organizations.  The judgment bans all their activity and orders their property seized by the state. According to Tass, the full text of the judge's decision will be furnished to the parties within five days.  Jehovah's Witnesses now have 30 days to appeal the decision to a 3-judge appellate panel of the Supreme Court.  If that panel affirms the decision, Jehovah's Witnesses plan to appeal to the European Court of Human Rights. If the judgement is ultimately upheld, it will be illegal for Jehovah's Witnesses to engage in any kind of missionary activity in Russia.

Defense Department Expands List Of Recognized Faith and Belief Groups

Section 533 of the National Defense Authorization Act of 2013 called on the military to accommodate the conscience and moral beliefs, as well as religious beliefs, of members of the Armed Forces.In a Memorandum dated March 27, 2017, the Pentagon, after review by the Armed Forces Chaplains Board, issued an expanded list of faith and belief groups, expanding on a list (at pg. 46) last updated in 2013.  The new list includes Pagan and Humanist, as well as listing separately a number of religions that were previously consolidated under a broader classification. The American Humanist Association this week issued a press release "applaud[ing] the Department of Defense (DoD) for recognizing Humanism as a belief system protected by the Department’s ethical standards."

Christian Solidarity Worldwide Recognized BY UN As NGO

According to AP, yesterday the United Nations Economic and Social Council voted 28-9 (with 12 abstentions) to accredit the British-based Christian Solidarity Worldwide as a non-governmental organization, giving it consultative status. Christian Solidarity is an organization that promotes religious freedom. The grant of consultative status will give the group the right to attend meetings at the Geneva-based U.N. Human Rights Council.  The organization had originally applied for accreditation in 2009, but ECOSOC's 19-member accreditation committee repeatedly deferred action on the bid.  Wednesday's full ECOSOC vote granted an appeal against a further delay recommended in February by the accreditation committee. Christian Solidarity worldwide issued a press release on the matter.

Catholic Hospital Sued Over Refusal Of Gender Reassignment Surgery

A transgender male filed suit this week in a California state trial court against Dignity Heath.  Following Ethical and Religious Directives for Catholic Health Care Services that prohibit direct sterilization, Dignity Health's Mercy San Juan Medical Center refused to perform a hysterectomy as part of plaintiff's treatment for gender dysphoria. The complaint (full text) in Minton v. Dignity Health, (CA Super. Ct., filed 4/19/2017), contend that the refusal constitutes discrimination on the basis of sex in violation of the Unruh Civil Rights Act.  ACLU issued a press release announcing the filing of the lawsuit. Sacramento Bee reports on the suit.

9th Circuit Hears Oral Arguments In Falun Gong's Suit Against Cisco

On Tuesday, the U.S. 9th Circuit Court of appeals heard oral arguments (video of full arguments) in Doe v. Cisco Systems, Inc.  In the case, a California federal district court dismissed a lawsuit by Falun Gong practitioners that claimed Cisco aided and abetted and conspired with the Chinese Communist Party and Public Security officers in committing human rights abuses against Falun Gong. (See prior posting.) Courthouse News Service reports on the oral arguments.

Assistant Principal Sues Over Christian Parents' Objections To Yoga

Atlanta Journal Constitution yesterday reported on a lawsuit filed in federal district court in Georgia by Bonnie Cole, an assistant principal in the Cobb County schools, who says she was forced out of the school in which she originally served after Christian parents objected to her introduction of yoga as a method of calming disruptive students. The paper recounts:

Cole, who says she is a Christian, says school leaders and ultimately the school board buckled under pressure from parents who held a prayer rally at Bullard “for Jesus to rid the school of Buddhism.” The next day, two women put their hands on Cole’s office window and prayed.

“Not only was the capitulation and transfer a humiliating and public demonstration of the district’s lack of support of Ms. Cole, it made clear to the community that religious activities will be allowed as long as they are part of the “accepted” religion of Christianity,” her lawsuit says.

Alabama Supreme Court Affirms Suspension of Chief Justice Over Defiance of Same-Sex Marriage

Yesterday, a specially composed panel of judges sitting as the Supreme Court of Alabama unanimously affirmed the judgment of the Alabama Court of the Judiciary suspending Alabama Supreme Court Chief Justice Roy Moore for the remainder of his term. Six judges joined in the court's opinion, while one judge concurred only in the result. In Moore v. Alabama Judicial Inquiry Commission, (AL Sup. Ct., April 19, 2017), the court in a 66-page opinion agreed that Moore violated various provisions of the Code of Judicial Ethics when he issued directions to Alabama judges to refuse to issue marriage licenses to same-sex couples despite federal court decisions and orders to the contrary, including the Supreme Court's Obergefell decision.  AL.com reports that Moore remains defiant

Supreme Court Hears Arguments In Trinity Lutheran; Transcript Available

Today, the U.S. Supreme Court heard oral arguments in Trinity Lutheran Church of Columbia, Inc. v. Comer.  The transcript of the full oral arguments is now available. At issue was the refusal by Missouri's Department of Natural Resources of a grant application by Trinity Church for a grant that would allow it to resurface a playground at its day care and preschool facility on church premises. In refusing the grant, the Department pointed to Missouri Constitution, Art. I Sec. 7, that prohibits public funds from being spent "in aid of any church, section or denomination of religion." (See prior posting.)  Amy Howe at SCOTUSblog reports on the oral arguments.

8th Circuit: Abuse Victim's Defamation Suit Is Untimely

In Couzens v. Donohue, (8th Cir., April 18, 2017), the U.S. 8th Circuit Court of Appeals affirmed dismissal on statute of limitations grounds of a defamation suit against the Catholic League for Religious Liberty.  In the suit, plaintiff alleged that defendants published false information to discredit and humiliate him in retaliation his public allegations that he was sexually abused by priests. The court likewise affirmed dismissal of plaintiff's invasion of privacy and negligent infliction of emotional distress claims. Kansas City Star reports on the decision.

Suit Says Clerk Harassed Same-Sex Couples Seeking Marriage Licenses

A suit was filed earlier this week in a West Virginia federal district court contending that personnel in the Gilmer County Clerk's Office harassed same-sex couples applying for marriage licenses.  The complaint (full text) in Brookover v. Gilmer County, (D WV, filed 4/17/2017), alleges in part:

When Deputy Clerk Debbie Allen saw that a same-sex couple was applying for a marriage license, she ... launched into a tirade of harassment and disparagement. She slammed her paperwork down on her desk, screaming that the couple was an “abomination” to God and that God would “deal” with them.... Another clerk joined in ... by shouting “it’s [Allen’s] religious right” to harass same-sex couples while performing the official state duties of the Clerk’s office.

Americans United issued a press release announcing the filing of the lawsuit.

Court Enters Housing and Policing Injunctions Against FLDS-Dominated Towns

In United States v. Town of  Colorado City, Arizona, (D AZ, April 18, 2017), an Arizona federal district court took major steps to attempt to normalize the housing and policing situation in the FLDS-controlled twin towns of Colorado City, Arizona and Hilldale, Utah.  The Justice Department sued the towns under the Fair Housing Act and the Policing Act (42 USC §14141).  In introducing its 54-page opinion setting out detailed injunctive relief, the court said;

The constitutional right to free exercise of religion, on the one hand, and the statutory right to housing and constitutional policing, on the other hand, are vitally important to a viable, peaceful community.... Denial of housing rights and lawful policing to some residents at the behest of the Fundamentalist Church of Jesus Christ of Latter Day Saints ... has cost the cities dearly – millions of dollars – in the past.

.... It is now time for the citizens of Colorado City and City of Hildale to come together and accept the fact that communal ownership of residential property in the Defendant Cities is a thing of the past. All residents of the Defendant Cities must be afforded equal access to housing and residential services, to nondiscriminatory law enforcement, and to free exercise of their religious preferences that are not contrary to law. By this judgment and decree, the court hopes to assist the Defendant Cities and their residents in advancing the protection of civil rights to which they are entitled.

The court ordered the cities to engage an independent monitor to assure housing compliance and hiring of an outside consultant to aid in reorganization and policy changes in the Colorado City Marshall's Office.

Note To Religion Clause Readers

You may have noticed that postings have not appeared in recent days.  I hope to be able to get back to blogging regularly before the end of the month. Please stay tuned.