Suit Challenges Ordinance Barring Discrimination On Basis of Reproductive Health Services

In February 2017, the St. Louis (MO) Board of Aldermen enacted Ordinance 70459 which added to the city's existing laws against discrimination in employment and housing a prohibition on discrimination "because of ... reproductive health decisions or pregnancy status (including childbirth or a related medical condition)".  Yesterday suit was filed in a Missouri federal district court challenging the Ordinance which the lawsuit says was represented as barring discrimination against those who have had, or are planning to have, an abortion.  The complaint (full text) in Our Lady's Inn v. City of St. Louis, (ED MO, filed 5/22/2017) contends that in fact the Ordinance is much broader, saying in part:

Ordinance 70459 forbids Plaintiffs and others from making adverse employment, housing or realty decisions based on an individual or entity being an abortion activist, advocate or provider....  Thus, the Ordinance forbids Plaintiffs from refusing to sell or rent real property to individuals and corporate organizations that promote or provide abortions....

The complaint alleges that the Ordinance violates the speech and religion clauses of the 1st Amendment,  the due process and equal protection clauses of the 14th Amendment as well as various provisions of state law.  Thomas More Society issued a press release announcing the filing of the lawsuit.

Texas Governor Signs Bill Protecting Sermons From Subpoena By Government

On Friday, Texas Governor Greg Abbott signed SB24 (full text).  The new law protects sermons delivered by religious leaders from being subpoenaed by any governmental unit in litigation or in administrative proceedings.  The legislation is a reaction to controversy over the city of Houston's attempt in 2014 to subpoena sermons of 5 members of the clergy as part of the city's defense in a lawsuit challenging its rejection of petitions seeking repeal of the city's Equal Rights Ordinance. (See prior posting.)  Houston Chronicle reports that the governor and lieutenant governor on Sunday preached sermons at a Houston area church before a second signing of the bill.

Recent Articles of Interest

From SSRN:

• Wojciech Sadurski, Illicit Legislative Intentions in the Separation of State and Religion: Comparative Constitutional Insights, (Sydney Law School Research Paper No. 17/39 (2017)).
• Elena Falletti, Religious Roots of the Duty of Marital Fidelity and the Evolution of Italian Family Law, (May 11, 2017).
• Antje von Ungern-Sternberg, Religious Profiling, Statistical Discrimination and the Fight Against Terrorism in Public International Law, (Forthcoming, Robert Uerpmann-Wittzack (ed.), Religion and International Law, Brill 2017). 
• Robert K. Vischer, How Should a Law School's Religious Affiliation Matter in a Difficult Market?, (University of Toledo Law Review, Vol. 48, No. 2, 2017).
• Andreas Follesdal, Religion and the State – the European Court of Human Rights and the ‘Lautsi' Case About Crucifixes in Italian Class Rooms, (April 23, 2017).
• Blair A. Major, TWU Law: The Boundaries and Ethos of the Legal Community, (Alberta Law Review, Vol. 55, No. 1 [Forthcoming]).
• Mathilde Cohen, The Comparative Constitutional Law of Cows and Milk — India and the United States, (Indian Journal of Constitutional Law, Forthcoming).

From SSRN (Islamic Law):

• Ifzal Mehmood & Muhammad Abdullah Fazi, The Right to Marry in Islam: Scrutinizing the Customs of Marriages in the Pashtun Belt of Pakistan, (Pakistan Annual Research Journal, Vol. 52, 2016).
• Ahmar Afaq & Prateep Sarkar, Safeguards to Prisoners of War in International Law: Revisiting From Islamic Law Perspective, (Tabish Eqbal, Ali Faran Gulrez et. al. (eds.) Contemporary Legal Issues: Prospects and Challenges, 8 (2016)).
• Mohammed Alzahrani & William L. Megginson, Finance as Worship: A Survey of Islamic Finance Research, (CEIF Discussion Paper (4/2017)).

From SmartCILP:

• Kim Treiger Bar-Am, Copyright and Positive Freedom: Kantian and Jewish Thought on Authorial Rights and Duties, [Abstract], 63 Journal of the Copyright Society of the U.S.A. 551-571 (2016).

Suit By Cannabis Church To Enjoin Prosecution Is Dismissed

In Armstrong v. Kilmartin, (D RI, May 17, 2017), a Rhode Island federal district court dismissed a suit to enjoin a state court criminal prosecution against clergy of the "Healing Church" which uses cannabis in its rituals. Plaintiffs say they are trying to protect a religious cannabis garden from law enforcement officials.  The suit claimed that the state and state officials engaged in religious discrimination and infringed free exercise rights of church leaders. The court dismissed this part of the lawsuit under the Younger abstention doctrine.  The court also refused to exercise ancillary jurisdiction to decide a separate claim against a religious leader over the ownership of a religious painting.

Full Transcript of President Trump's Speech To Leaders of Muslim Nations

President Donald Trump today delivered a highly-anticipated speech in Riyadh, Saudi Arabia to leaders of Mulim nations. Here is the full transcript of the speech in which he said in part:

This is not a battle between different faiths, different sects, or different civilizations. This is a battle between barbaric criminals who seek to obliterate human life, and decent people of all religions who seek to protect it. This is a battle between Good and Evil.

When we see the scenes of destruction in the wake of terror, we see no signs that those murdered were Jewish or Christian, Shia or Sunni. When we look upon the streams of innocent blood soaked into the ancient ground, we cannot see the faith or sect or tribe of the victims – we see only that they were Children of God whose deaths are an insult to all that is holy.

But we can only overcome this evil if the forces of good are united and strong – and if everyone in this room does their fair share and fulfills their part of the burden. Terrorism has spread across the world. But the path to peace begins right here, on this ancient soil, in this sacred land. America is prepared to stand with you – in pursuit of shared interests and common security.

But the nations of the Middle East cannot wait for American power to crush this enemy for them. The nations of the Middle East will have to decide what kind of future they want for themselves, for their countries, and for their children.

It is a choice between two futures – and it is a choice America CANNOT make for you. A better future is only possible if your nations drive out the terrorists and extremists. Drive. Them. Out.

DRIVE THEM OUT of your places of worship. DRIVE THEM OUT of your communities. DRIVE THEM OUT of your holy land, and DRIVE THEM OUT OF THIS EARTH.

Here is the Washington Post's coverage of the speech.

Recent Prisoner Free Exercise Cases

In Ashley-Drake v. Russell, 2017 U.S. Dist. LEXIS 73984 (D NJ, May 16, 2017), a New Jersey federal district court dismissed an inmate's complaint that he was prohibited from attending group religious services while in disciplinary detention.

In Brooks v. Corrections Corporation of America, 2017 U.S. Dist. LEXIS 74369 (D AZ, May 15, 2017), an Arizona federal district court dismissed an inmate's complaint that he was not permitted to participate in the Ramadan fast when staff should have known he wished to participate.

In Al-Bukhari v. Department of Correction, 2017 U.S. Dist. LEXIS 74939 (D CT, May 17, 2017), a Connecticut federal district court allowed an inmate to move ahead with his complaint that his rights under the 1st Amendment and RLUIPA were infringed when he was denied his Qur'an and other religious books.

In Sears v. Thomas, 2017 U.S. Dist. LEXIS 75375 (SD FL, May 15, 2017), a Florida federal district court, rejecting a magistrate's recommendation (2017 U.S. Dist. LEXIS 56953, April 12, 2017), allowed an inmate to move ahead with his claim that a chain and crucifix he possessed were improperly seized because he had prior authorization for them.

In Little v. Guice, 2017 U.S. Dist. LEXIS 76593 (WD NC, May 19, 2017), a North Carolina federal district court dismissed, for failure to exhaust administrative remedies, an inmate's claim that he was disciplined for being a gang member because of his identification as "Moorish American."

Oklahoma Supreme Court Rejects Challenge To Driver's License Photo

In Beach v. Oklahoma Department of Public Safety, (OK Sup. Ct., May 16, 2017), the Oklahoma Supreme Court held that under the Oklahoma Religious Freedom Act, plaintiff must make a prima facie showing of a substantial burden on his or her free exercise of religion before the government needs to demonstrate a compelling government interest and least restrictive means.  The court concluded that plaintiff here failed to make a prima facie showing supporting her allegation that her sincere religious beliefs prohibit her, in obtaining a driver's license, from allowing a biometric photo to be taken and placed into a database that is accessible by other countries or international organizations.  The court also concluded that plaintiff's complaint is moot because plaintiff had already submitted biometric photos and fingerprints in the past. Two justices concurred only in the result and one dissented in part, saying that the case is moot.

Civil Rights Suit By Student Alarm-Clock Maker Dismissed

In Mohamed v. Irving Independent School District, (ND TX, May 18, 2017), a Texas federal district court dismissed the civil rights claims brought on behalf of an African-American Muslim high school student who was arrested and suspended from school for 3 days when a home-made clock he brought to school was mistaken by his teachers for a bomb. (See prior posting.) The incident received national attention. Plaintiff (the student's father) alleged violations of the Equal Protection clause, the 4th and 5th Amendments, and Title VI of the 1964 Civil Rights Act. WDBO News reports on the decision.

New Study Analyzes Impact of Tax Reform Proposals On Giving To Religious Organizations

The Indiana University Lily Family School of Philanthropy yesterday released a report titled Tax Policy and Charitable Giving Results (full text).  The report attempts to estimate the impact on charitable giving of the proposed 2014 Tax Reform Act.  That bill is similar to the current tax reform proposals by the White House and House of Representatives. The report examines various combinations of 3 proposals-- increase in the standard deduction, decrease in the top marginal tax rate, and universal charitable deduction.  It analyzes the impact of combinations of these on giving to religious congregations and giving to other charities. Religion News Service reports on the data.

Italy's Top Court Upholds Kirpan Ban

Last Monday, Italy's Court of Cassation upheld a fine that had been imposed for carrying a kirpan in public.  According to The Local:

The Italian judges on Monday rejected the appeal of a Sikh who had been fined €2,000 in 2015 for carrying an 18cm-long kirpan in Goito, a town in Lombardy. He argued that the ban was unfair as the kirpan was a religious symbol rather than a weapon, but the court upheld the original sentence.

"Attachment to values which violate the laws of the host country is intolerable, even if they are lawful in the country of origin," the court said, adding that "public safety is an asset to be protected".

$20M Awarded In Sexual Abuse Suit Against Rabbi and His Yeshiva

The New Haven Register reports that yesterday a federal district court jury in Hartford, Connecticut awarded $15 million in compensatory damages and $5 million in punitive damages to plaintiff for sexual abuse he suffered from 2001 to 2005 while a student at Yeshiva of New Haven, an Orthodox Jewish day school. The jury found both Rabbi Daniel Greer and his Yeshiva liable.  According to the lawsuit, the abuse began when plaintiff was 15 and Greer was in his 60's.

Justice Alito Speaks On Faith and Religious Freedom

As reported by KYW Newsradio, yesterday U.S. Supreme Court Justice Samuel Alito received an honorary degree from Saint Charles Borromeo Seminary in Wynnewood, Pennsylvania. Alito spoke to graduates of the Schools of Philosophy and Theology.  A blog on the school's website also published Faith, Family, and Religious Freedom: A Conversation with Justice Samuel Alito conducted in anticipation of his visit.

Bahamas Constitution Protects Muslim Military Officer From Mandatory Christian Prayer

In Commodore Royal Bahamas Defence Force v Laramore, (Privy Council, May 8, 2017), the UK Judicial Committee of the Privy Council (a court of final appeal from Bahamas courts) held it unconstitutional under the Bahamian constitution to require a Muslim member of the Royal Bahamian Defence Force to participate in Christian prayers. At issue are the "ceremonial prayers" in regular weekly colours parades.  From 1993 to 2006, non-Christians could fall out during the prayers. A 2006 Memorandum ended that accommodation. Law & Religion UK has more on the decision.

EEOC Sues Over Refusing To Accommodate Jewish Employee's Holiday Observance

The EEOC announced on Tuesday that it has filed a Title VII lawsuit against XPO Last Mile, Inc., a delivery company, for rescinding a job offer to Tzvi McCloud who refused to report for his first day of work on Rosh Hashanah.  A company vice president allegedly told McCloud that if he gave him a religious accommodation for his Jewish religious beliefs, he would have to extend accommodations to other employees as well.

1st Amendment Requires Dismissal of Some Priest Sexual Abuse Allegations

In Roy v. Norwich Roman Catholic Diocesan Corp., 2017 Conn. Super. LEXIS 774 (CT Super., April 24, 2017), plaintiff sued claiming that from 1990 to 1996 when he served as an altar boy at a Pomfret, Connecticut Catholic church he was sexually assaulted hundreds of times by a now-deceased priest, Fr. Paul Herbert.  While the trial court permitted plaintiff to move ahead on a number of his claims, it dismissed three of them on the ground that these would impermissibly entangle the court in matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law. The allegations that were dismissed were that the church failed to adequately evaluate the mental fitness of Herbert to serve as a Catholic priest, and the allegation that plaintiff suffered emotional and spiritual loss, substantially affecting his belief in his faith. The court held that plaintiff's other claims, such as the failure to adequately train and supervise Herbert, can be decided by applying neutral principles of law.

Organization Announces Campaign To Promote Graduation Prayer

Liberty Counsel this week announced its annual "Friend or Foe Graduation Prayer Campaign," saying in part:

Liberty Counsel will educate and, if necessary, litigate to ensure that prayer and religious views are not suppressed during graduation ceremonies across the Nation.

Liberty Counsel is making available red prayer wristbands which students can wear as a reminder to pray at graduation and all throughout the school year.... Students have the constitutional right to wear religious jewelry and to pray during noninstructional times while at school. Liberty Counsel also has a free legal memo on graduation prayer.

Juror Removed For Religious Statement Made In Deliberations

According to FirstCoast News, in a Jacksonville, Florida federal district courtroom earlier this month, a jury found former Congresswoman Corrine Brown  guilty on 18 counts of fraud and corruption. The jury's decision came a day after the judge removed one of the jurors  (referred to as Juror 13) from the panel. The judge took action against Juror 13 after another juror sent the judge a letter complaining about Juror 13's religious remarks. Near the beginning of deliberations, Juror 13 told the others that the Holy Spirit had told him Congresswoman Brown was not guilty on all charges. The full transcript of the judge's questioning Juror 13 before deciding to remove him from the jury makes interesting reading.

Court Dismisses California Law Challenge To Chabad's Kapparot Ceremony

In United Poultry Concerns v. Chabad of Irvine, (CD CA, May 12, 2017), a California federal district court dismissed a suit by an animal rights organization claiming that the annual Kapparot ceremony conducted by an Orthodox Jewish organization violates California's Unfair Competition Law.  The UCL provides civil remedies for “any unlawful, unfair or fraudulent business act or practice.” The complaint alleges that the ritual as implemented by Chabad of Irvine violates the state's ban on "intentional and malicious killing of animals" other than for use as food (California Penal Code Sec. 597(a), 599c).  Chabad charges $27 to each person for furnishing and disposing of the chicken used in the pre-Yom Kippur ceremony. (See prior posting.)

In dismissing the lawsuit, the court said:

The Court cannot find, and Plaintiff does not cite a single case in which the acceptance of a donation in connection with the performance of religious ritual has been treated as a “business act” under the UCL. Moreover, the Court finds that Defendant Chabad of Irvine does not participate nor compete as a business in the commercial market by performing a religious atonement ritual that involves donations. For these reasons, the Court finds that Plaintiff fails to state a claim against Chabad of Irvine for a violation of the Unfair Competition Law (B.P.C. § 17200 et seq.)

First Liberty Institute issued a press release announcing the decision.  Jewish Press reported on the decision.

State Department Implements Expanded "Mexico City Policy"

Yesterday the State Department took steps to implement an earlier Memorandum from President Trump that reinstated the "Mexico-City Policy" that bars U.S. foreign aid dollars from going to nongovernmental organizations that offer abortion counseling or  advocate the right to seek abortions in their home countries.(See prior posting).  In a Fact Sheet and a Background Briefing the State Department elaborated on its new plan called "Protecting Life in Global Health Assistance" which expands on the Mexico City Policy as applied in prior Republican administrations.  According to the briefing:

...[G]lobal health assistance includes funding for international health programs, such as those for HIV/AIDS, maternal and child health, malaria, global health security, family planning, and reproductive health. Protecting Life in Global Health Assistance applies to global health assistance to or implemented by foreign NGOs, including those to which a U.S. NGO makes a sub-award with such assistance funds.

Global health assistance to national or local governments, public international organizations, and other similar multilateral entities is not subject to this policy. Also excluded is humanitarian assistance, including State Department migration and refugee assistance activities, USAID disaster and humanitarian relief activities, and U.S. Department of Defense disaster and humanitarian relief. At any time, in consultation with the Secretary of Health and Human Services, the Secretary of State may authorize additional case-by-case exemptions to the policy....

Protecting Life in Global Health Assistance applies to approximately $8.8 billion in funds appropriated to the Department of State, the U.S. Agency for International Development, and the Department of Defense. Previously, the policy applied only to family planning assistance provided by USAID and the Department of State.

.... Departments and agencies will reprogram to other organizations any funding they would have awarded to NGOs that do not agree to the terms of Protecting Life in Global Health Assistance.

New York Times reports on the policy expansion. Liberty Counsel issued a press release with additional information on the new policy.

9th Circuit Hears Oral Arguments On Second Trump Travel Ban Executive Order

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments (video of full arguments) in State of Hawaii v. Trump, (Docket No. 17-15589).  In the case, a Hawaii federal district court issued a nationwide temporary injunction against enforcement of key portions of  President Trump's second "travel ban" Executive Order. (See prior posting.) As reported by the New York Times, at issue in the arguments are whether the Executive Order can be considered a "Muslim ban" that violates the Establishment Clause.