Satanic Temple Will Erect War Memorial In Park's Free Speech Zone

The Minneapolis Star Tribune last week reported on the controversy in Belle Plaine, MN over a war memorial in a city park. The memorial includes a 2-foot tall cross. After a complaint about the religious symbol on public property, the city initially ordered the cross removed. But then protesters who wanted the cross to remain occupied the park each day.  The city relented, but to meet constitutional objections it designated a small area in the park as a "free speech zone" where up to ten temporary memorials to honor veterans will be allowed. The first organization to apply was the Satanic Temple, and it will now erect a memorial to honor non-religious soldiers. The memorial be a black cube inscribed with inverted pentagrams with an upturned helmet on top.

Cert. Denied In Challenge To California Sexual Orientation Therapy Ban

The U.S. Supreme Court yesterday denied review in Welch v. Brown (Docket No., 16-845, cert. denied 5/1/2017). (Order List.) In the case, the 9th Circuit rejected facial free exercise and Establishment Clause challenges to California's ban on state-licensed mental health professionals providing "sexual orientation change efforts" for patients under 18. (9th Circuit's amended opinion dated Oct. 3, 2016). (SCOTUSblog case page.)

Trump Declares May As Jewish American Heritage Month

The Times of Israel and JTA both report that on Friday President Trump issued a Proclamation designating May as Jewish American Heritage Month.  Similar Proclamations have been issued by presidents since 2006.  The Proclamation, which specifically mentions Trump's daughter Ivanka, his son-in-law Jared and his grandchildren all of whom are Jewish, reads in part:

During Jewish American Heritage Month, we celebrate our nation’s strong American Jewish heritage, rooted in the ancient faith and traditions of the Jewish people. The small band of Dutch Jews who first immigrated in 1654, seeking refuge and religious liberty, brought with them their families, their religion, and their cherished customs, which they have passed on from generation to generation.

When the full text of the Proclamation becomes available on the White House website, I will link to it.

UPDATE: Here is the full text of the Proclamation.

Zogby's Dissent In the USCIRF Annual Report

As previously reported, last week the U.S. Commission on International Religious Freedom issued its 2017 Annual Report.  It turns out that buried in the Report-- i.e. not listed in the Table of Contents-- were a "dissenting statement" by Vice Chair James Zogby (pg. 17 of Report), a joint "additional statement" by 7 of the Commissioners (pg. 20 of Report), an "additional statement" by Vice Chair Daniel Mark (pg. 21 of Report), and an "additional statement" by Commissioner John Ruskay (pg. 21 of Report).  Commissioner Zogby's dissent-- which has two parts-- has generated the most interest.  The media (JTA, Mondoweiss, and a Huffington Post column by Zogby himself) focused on Zogby's complaint that a narrow majority of Commissioners refuse to examine the issue of religious freedom in Israel and the Palestinian territories.

Equally interesting, however, is Zogby's broader critique of the manner in which USCIRF operates. He says in part:

I believe that part of the reason why we have not been able to contribute to improving the situation of vulnerable faith communities is because of how we have interpreted our mandate. Instead of serving as a bipartisan group of experts making informed recommendations to the Administration and Congress—as was envisioned by IRFA—we have acted more like a Congressionally-funded NGO that issues a variety of materials “naming and shaming” countries that violate religious freedom.

I believe that instead of using our limited resources to produce opinion pieces, press releases, and a lengthy and duplicative annual report, and acting as a “critic” of the Executive Branch, USCIRF should consider new and constructive approaches to its work in order to more effectively promote international religious freedom. Instead of simply making do with “naming and shaming” the many countries that violate religious freedom, we should develop a more focused approach that involves making an in-depth study of a few targeted countries so that we might be in a position to provide the Administration and Congress with creative problem-solving ideas where improvements in religious freedom can be made....

In too many instances, we have failed to distinguish between actual violations of religious freedom and sectarian, regional, or tribal struggles for political power. Too often, in the past, some have engaged in reductionist analysis—seeing everything as a nail, because the only tool we wield is a hammer. In failing to understand the complexity and non-religious underpinnings of conflicts, like those in Nigeria, Iraq, or the Central African Republic, our analysis and recommendations sometimes miss the mark. Religious conflict is not the cause of tension in these countries and, therefore, religious freedom is not the solution to their problems.

Some have expanded this reductionism to extreme and even absurd lengths, claiming that if, as they maintain, religious freedom is “the first freedom,” then all else flows from it. They correctly observe a correlation between religious freedom and prosperity and democracy in some countries, but then mistakenly attribute the latter to the former. In fact, a more convincing case can be made that prosperity and democracy are the prerequisites for religious freedom. In other instances, they have attempted to make the case that religious extremism only originates in countries that violate religious freedom. This patently false conclusion ignores the reality of home-grown extremist religious movements in Western Europe or the United States. 

Recent Articles of Interest

From SSRN:

• Jonas J Monast, Brian C. Murray & Jonathan B. Wiener, On Morals, Markets, and Climate Change: Exploring Pope Francis' Challenge, (Law and Contemporary Problems, Vol. 80, 2017).
• Jonathan F. Will, I. Glenn Cohen & Eli Y. Adashi, Personhood Seeking New Life with Republican Control, (Indiana Law Journal, Forthcoming).
• Tara A. Smith, Religious Liberty or Religious License? Legal Schizophrenia and the Case against Exemptions, (Journal of Law and Politics, Vol. 32, Fall 2016).
• Tara A. Smith, What Good Is Religious Freedom? Locke, Rand, and the Non-Religious Case for Respecting It, (Arkansas Law Review, Vol. 69, No. 4, 2017).
• Michael J. Perry, A Global Political Morality: Human Rights, Democracy, and Constitutionalism, (Emory Legal Studies Research Paper 17-431 (2017)).
• Jonathan F. Will, Religion As a Controlling Interference in Medical Decision-Making by Minors, (October 19, 2016).
• Sarah Khanghahi, Thirty Years after Al-Khazraji: Revisiting Employment Discrimination Under Section 1981, (64 UCLA Law Review 794 (2017).

From SSRN (Non-U.S. Law):

• Atta Ul Mustafa, Proposed Procedural Amendments to Check Misuse of Blasphmey Laws in Pakistan, (July 4, 2016).
• Matthew S. Erie, The Traveling Waqf: Property, Religion, and Mobility Beyond China, (Islamic Law and Society, Vol. 25, (1-2, Special Issue on Waqfs) (February 2018)).
• Paul Johnson & Robert M. Vanderbeck, Sexual Orientation Equality and Religious Exceptionalism in the Law of the United Kingdom: The Role of the Church of England, (April 25, 2017).
• Dwight G. Newman, Ties that Bind: Religious Freedom and Communities (Introduction), (in Dwight Newman, ed., Religious Freedom and Communities (Toronto: LexisNexis, 2016)).
• Darren Rosenblum, Sex Quotas and Burkini Bans, (Tulane Law Review, Vol. 92, 2017).

From SmartCILP:

• Herman D. Hofman, For Richer or For Poorer: How Obergefell v. Hodges Affects the Tax-Exempt Status of Religious Organizations that Oppose Same-Sex Marriage, 52 Gonzaga Law Review 21-57 (2016/17).
• 2015 Richard J. Childress Memorial Lecture: Religious Freedom, Social Justice and Public Policy. Keynote lecture by Lawrence G. Sager; contributions by Christopher C. Lund, Matthew T. Bodie, Elizabeth Sepper, Jeffrey A. Redding and B. Jessie Hill. 60 St. Louis University Law Journal 585-710 (2016).

Europe's Parliamentarians Promote Rights of Parents and Children of Religious Minorities

The Parliamentary Assembly of the Council of Europe (PACE) on April 27 adopted a Resolution (full text) on The Protection of the Rights of Parents and Children Belonging to Religious Minorities. The Resolution provides in part:

The landscape of religious communities in Europe is complex and evolving, with traditional beliefs spreading beyond their historical territory and new denominations emerging. Such an environment has the potential to render families belonging to religious minorities ostracised for their views and values in contexts where there is a dominant majority that holds conflicting views....

 5. The Assembly therefore calls on all member States of the Council of Europe to protect the rights of parents and children belonging to religious minorities by taking practical steps, legislative or otherwise, to:

5.1. affirm the right to freedom of thought, conscience and religion for all individuals, including the right not to adhere to any religion, and protect the right of all not to be compelled to perform actions that go against their deeply held moral or religious beliefs, while ensuring that access to services lawfully provided is maintained and the right of others to be free from discrimination is protected;

5.2. promote reasonable accommodation of the deeply held moral or religious beliefs of all individuals in cases of serious conflict to enable citizens to freely manifest their religion or belief in private or in public, within the limits defined by legislation and provided that this is not detrimental to the rights of others;

5.3. repeal any law or rule which establishes a discriminatory distinction between religious minorities and majority beliefs;

5.4. ensure easy-to-implement options for children or parents to obtain exemptions from compulsory State religious education programmes that are in conflict with their deeply held moral or religious beliefs; such options may include non-confessional teaching of religion, providing information on a plurality of religions, and ethics programmes.

Background of the Resolution can be found in the Explanatory Memorandum filed as part of the report by the Committee on Equality and Non-Discrimination. [Thanks to Law & Religion UK for the lead.]

Recent Prisoner Free Exercise Cases

In Jackson v. Sullivan,(9th Cir., April 12, 2017), the 9th Circuit affirmed the dismissal of an inmate's RLUIPA complaint regarding restrictions on the wearing of dreadlocks. UPDATE: An amended opinion in the case was filed June 8, 2017.

In Clark v. Dodd, 2017 U.S. Dist. LEXIS 62589 (MD TN, April 25, 2017), a Tennessee federal district court permitted a Muslim inmate to move ahead with his complaint that he was not delivered his package that contained a prayer rug, prayer cap, Quran and prayer oil.

In State Department of Corrections v. Todd, 2017 Tenn. App. LEXIS 223 (March 31, 2017), a Tennessee appellate court rejected an inmate's argument that his religious freedom rights were violated when authorities appointed a limited medical conservatorship to consent to forcible treatment with psychotropic drugs.

In Grant v. Scalia, 2017 U.S. Dist. LEXIS 56242 (ED CA, April 12, 2017), a California federal magistrate judge dismissed with leave to amend ad Muslim inmate's complaint that rules requiring cell windows to be uncovered at all times interfered with his religious belief that he cannot appear naked in front of other men.

In Ross v. Director Butler County Detention Center, 2017 U.S. Dist. LEXIS 55976 (D KA, April 10, 2017), a Kansas federal district court dismissed a Muslim inmate's complaint that authorities denied his request for a special Muslim diet during most of Ramadan, and deprived him of the right to group prayer during Ramadan.

In Burns v. Buncich, 2017 U.S. Dist. LEXIS 55590 (ND IN, April 11, 2017), an Indiana federal district court held that material issues of fact an credibility that can only be resolved by a jury remain as to a Jehovah's Witness inmate's claims that authorities discriminated against Jehovah's Witnesses in access to the chapel for group worship and in his ability to consult with ministers.

Challenge To Pennsylvania Legislative Prayer Practices Survives Motion To Dismiss

In Fields v. Speaker of  the Pennsylvania House of Representatives, (MD PA, April 28, 2017), a Pennsylvania federal district court in a 33-page opinion refused to dismiss on the pleadings an Establishment Clause challenge to the Pennsylvania House of Representatives invocation policy.  House members may nominate "guest chaplains" to deliver an invocation at the beginning of a House session.  However House rules, as administered by the Speaker, do not permit non-theists to serve as guest chaplains. Plaintiffs are atheists, agnostics, secular humanists and freethinkers who have been denied the opportunity to deliver an invocation.  According to the court:

Plaintiffs plead a policy of religious discrimination sufficient to state a First Amendment claim.

Whether history and tradition sanctify the House‟s line of demarcation between theistic and nontheistic chaplains is a factual issue for a later day. Establishment Clause issues are inherently fact-intensive, and we must resist the academic intrigue of casting the salient inquiry too narrowly at this juncture. To the extent the parties‟ arguments evoke more nuanced constitutional questions— e.g., whether plaintiffs practice “religion” and are capable of “praying,” or whether tradition dictates that legislative prayer address a “higher power”—any such determination demands, and deserves, a fully developed record. As it stands, plaintiffs‟ challenge to the House‟s legislative prayer policy survives Rule 12 scrutiny.

The court also permitted two of the plaintiffs to move ahead with their challenge to the requirement that members of the public in attendance stand during the invocation.  On one occasion the Speaker publicly singled out plaintiffs for remaining seated.

The Court dismissed Free Exercise, Free Speech and Equal Protection challenges to the prayer policy, finding that legislative prayer is "government speech."

Arkansas Disorderly Conduct Law Upheld Against Abortion Protesters

In Duhe v. City of Little Rock, Arkansas, (ED AR, April 27, 2017), an Arkansas federal district court upheld the constitutionality of Arkansas' disorderly conduct statute in a suit by two participants in a pro-life event known as Operation Save America. One of the participants was president of a Christian organization, Spirit One. The participants interfered with traffic flow in a clinic parking lot, while using a microphone and loudspeaker to present their views.  Their activity disturbed businesses in the area.  The court held that the disorderly conduct statute under which the two men were charged is neither vague nor overbroad, and is a permissible content-neutral time, place and manner regulation.

India's Supreme Court To Hear Constitutional Challenge To Personal Status Laws

NewsClick yesterday carried a lengthy article surveying the background and importance of the Shayara Bano case which will be heard by a 5-judge panel of India's Supreme Court next month.  At issue is whether laws involving personal status which are governed in India by separate legal codes for different religious groups are subject to the fundamental rights protections of India's Constitution.  In this case, the issue is whether Muslim divorce through "Triple Talaq", a practice invoked pursuant to the Muslim Personal Law (Shariat) Application Act (1937), violates women's rights to equality, life and dignity. The article summarizes in part:

In the triple talaq case the Supreme Court is confronted with this question yet again and it remains to be seen if they will decide the question or dodge it by saying that Islam itself does not recognize triple talaq and hence, there is no need to decide the larger issue of whether personal laws are amenable to constitutional checks and challenges. What is at stake is not just Muslim Personal Law but all laws governing marriage and divorce, including Hindu Law. Will the ruling party that is moving towards a Hindutva State, allow such a challenge is the question. For now the Union of India has committed itself to the challenge but may remain content with the striking down on the ground that it is un-Islamic as some groups have argued. There is a lot riding on this case, not just talaq. The issues are fundamental to constitutional gender justice for all women.

Roy Moore Announces Run For U.S. Senate Seat From Alabama

In Alabama this week, Roy Moore who has been suspended for the rest of his term as Chief Justice of the Alabama Supreme Court because of his defiance of same-sex marriage rulings (see prior posting) announced that he will formally resign from his judicial position in order to run for the United States Senate.  The Republican primary for the seat is scheduled for August (with a potential run off in September). The special election itself is scheduled for December 12.  The Senate seat initially opened up when former Senator Jeff Sessions was appointed U.S. Attorney General. According to AL.com, Moore will face several opponents in the primary, including incumbent Sen. Luther Strange who was appointed on an interim basis to Sessions' seat by Alabama Gov. Robert Bentley, and Dr. Randy Brinson, president of the Christian Coalition of Alabama.  In his announcement, Moore said in part: "My position has always been God first, family then country. I share the vision of President Donald Trump to make America great again."

In Spain, 3 Women Face Trial On Charge of Insulting Religious Sentiments of Catholics

The Telegraph reports that in Spain, three women will be tried on charges of  insulting the religious sentiments of Catholics.  The charges grow out of the women's participation in a May Day parade in 2014 in which they carried a giant plastic vagina through the streets of Seville on a platform imitating the way in which women carry the image of the Virgin Mary in Good Friday parades.  Allegedly they also mocked Catholic prayers. The three women, part of a group calling itself "Sisterhood of the Blessed Rebellious Vagina to the Exploitation of Precariousness," were protesting discrimination against women in the workplace. An appeals court last week rejected the women's free speech defenses. While the women face the potential of fines and an 18 month prison sentence, any prison time is likely to be suspended.

Alabama Legislature Passes Protections For Faith-Based Adoption Agencies

On Tuesday, the Alabama legislature gave final passage to HB 24, the  Alabama Child Placing Agency Inclusion Act (full text).  The bill protects religiously affiliated adoption and foster care agencies that refuse to provide, facilitate or refer for placement in a manner that conflicts with their sincerely held religious beliefs.  The protections only apply to agencies that receive no state or federal funds.  The state may not refuse to license, discriminate or take adverse action against such agencies because they act on their religious beliefs. The bill now goes to Gov. Kay Ivey who must sign it before it becomes law. AL.com reports on the legislature's action. [Thanks to Tom Rutledge for the lead.]

UPDATE: Gov. Ivey signed the bill into law on May 3. (Jurist).

USCIRF Issues 2017 Annual Report

Yesterday the U.S. Commission on International Religious Freedom released its 2017 Annual Report (full text).  The report reviews religious freedom concerns in numerous countries and includes recommendations to the State Department for designation under the International Religious Freedom Act of 16 countries as "countries of particular concern"-- i.e. the most egregious violators of religious freedom.  Those countries are: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, Tajikistan, Turkmenistan, and Uzbekistan-- all already designated by the State Department-- as well as Central African Republic, Nigeria, Pakistan, Russia, Syria, and Vietnam.  The Report explains:

USCIRF’s 2017 CPC recommendations include, for the first time, the recommendation that Russia be designated as a CPC. Based on improvements in religious freedom conditions in Egypt and Iraq, USCIRF does not recommend those two countries for CPC designation in 2017, as it had for Egypt since 2011 and for Iraq since 2008.

The addition of Russia stems in part from its use of its anti-extremism law to restrict religious liberty, most recently of Jehovah's Witnesses. The report also places 12 countries on its Tier 2 list of nations where serious religious freedom concerns exist.  This year's Report begins with this grim introduction:

The state of affairs for international religious freedom is worsening in both the depth and breadth of violations. The blatant assaults have become so frightening—attempted genocide, the slaughter of innocents, and wholesale destruction of places of worship—that less egregious abuses go unnoticed or at least unappreciated. Many observers have become numb to violations of the right to freedom of thought, conscience, and religion.

8th Circuit Rejects RFRA Defense To Heroin Distribution Charges

In United States v. Anderson, (8th Cir., April 28, 2017), the U.S. 8th Circuit Court of Appeals rejected Timothy Anderson's claim that his indictment on charges of heroin distribution should have been dismissed because the decision to prosecute him violated his rights under the Religious Freedom Restoration Act.  Anderson claimed that as a student of Esoteric and Mysticism studies he created a religious non-profit organization to distribute heroin to "the sick, lost, blind, lame, deaf, and dead members of Gods' Kingdom."  The court held that even if Anderson's religious beliefs were sincerely held, the government here chose the least restrictive means to achieve its compelling interest in preventing distribution of heroin to others for non-religious uses. Vox reports on the decision.

New Kentucky Law Authorizes Bible Courses In Schools

On April 11, Kentucky Governor Matt Bevin signed HB 128 (full text) which requires the Kentucky State Board of Education to create courses on the Hebrew Scriptures (Old Testament), the New Testament, and on both. The law provides that the purposes of these courses are to teach students the biblical content, characters, poetry, and narratives required to understanding contemporary society and culture, including literature, art, music, mores, oratory, and public policy. [Thanks to Tom Rutledge for the lead.]

China Bans Islamic Names For Uighur Children

The New York Times reported yesterday that China has taken further steps to "curb religious fervor" among Uighurs in the western region of Xinjiang.  It has banned parents from giving their children names that can be seen as encouraging Islamic extremism.  According to Radio Free Asia last week:

Islam, Quran, Mecca, Jihad, Imam, Saddam, Hajj, and Medina are among dozens of baby names banned under ruling Chinese Communist Party's "Naming Rules For Ethnic Minorities," an official confirmed on Thursday.

An employee who answered the phone at a police station in the regional capital Urumqi confirmed that "overly religious" names are banned, and that any babies registered with such names would be barred from the "hukou" household registration system that gives access to health care and education.

Trump Justice Department Wants Further Extension In Remanded Contraceptive Mandate Cases

Last May the U.S. Supreme Court remanded to the Third, Fifth, Tenth, and D. C. Circuits a group of cases brought by religious non-profit institutions challenging the contraceptive mandate coverage accommodation worked out by the Obama administration.  The Supreme Court, apparently split evenly on the case, urged the parties to work out a compromise. (See prior posting.)  In a letter (full text) sent to the Catholic Leadership Conference by the Trump Campaign last October, Trump said that, if elected: "I will make absolutely certain religious orders like The Little Sisters of Poor are not bullied by the federal government because of their religious beliefs." However on Monday in a Status Report (full text) filed with the 5th Circuit Court of Appeals, the Justice Department asked for the cases to be held in abeyance for another 60 days, arguing:

the new Administration has been in place for only a few months. The regulations at issue here are jointly administered by three Departments—the Department of Health & Human Services, the Department of Labor, and the Department of the Treasury—and are the subject of numerous other lawsuits being handled by the Department of Justice. The nominee to be Secretary of Labor has not yet been confirmed, and numerous subcabinet positions at the Departments have not yet been filled. The issues presented by the Supreme Court’s remand order are complex; for example, the original accommodation took more than a year to develop with input from interested parties.

NBC News reports on developments.

Indiana Legislature Passes Law Protecting Student Religious Expression In Schools

After final passage, yesterday the Indiana legislature sent HB 1024 (full text) to Gov. Eric Holcomb for his signature.  The bill authorizes public high schools to offer an elective course surveying religions of the world. The course must include historical, cultural and literary study, and must be "neutral, objective and balanced."  In a separate section, the Act prohibits public schools from discriminating against a student or the student's parent on the basis of religious viewpoint or religious expression. It provides that students may express their beliefs about religion in homework, artwork, and other written and oral assignments, which are to be judged by ordinary academic standards of substance and relevance.

The Act provides that public school students may pray or engage in religious activities or religious expressions before, during, and after the school day in the same manner and to the same extent that students may engage in nonreligious activities or expression. They may wear wear clothing, accessories, and jewelry that display religious messages or religious symbols in the same manner and to the same extent that other types of clothing, accessories, and jewelry that display messages or symbols are permitted.Religious groups are to be given the same access to school facilities as other non-curricular groups. Liberty Counsel issued a press release announcing the passage of the legislation.

Suit Says Indiana Charter School Act Violates Establishment Clause

Indiana's Charter School Act names, among the institutions that may authorize public charter schools, some 30 non-profit colleges and universities-- public, private and religious. Charter schools they authorize must be non-sectarian and non-religious.  Yesterday a non-profit advocacy organization supporting public schools filed suit against Indiana education officials contending that the Charter School Act violates the Establishment Clause as well as the no-aid cause of Indiana's constitution. The complaint (full text) in Indiana Coalition for Public Education v. McCormick, (SD IN, filed 4/25/2017) focuses on the authorization of a charter for Seven Oaks Classical School by Grace College and Seminary, an evangelical Christian college. It contends that the Act violates the Establishment Clause by delegating government power to authorize charter schools to a religious institution and by authorizing payment of public funds as an administrative fee to that religious institution. Indiana Lawyer reports on the lawsuit.