Suit Challenges Zoning Denial For Mosque

A suit was filed in a New Jersey federal district court yesterday claiming that the Bayonne (NJ) zoning board violated RLUIPA as well as the U.S. and New Jersey constitutions in denying a Muslim religious congregation zoning approval for construction of a mosque. The complaint (full text) in Bayonne Muslims v. City of  Bayonne, (D NJ, filed 5/25/2017) alleges in part:

Plaintiffs applied to the Zoning Board for routine variances, which were needed to convert a decrepit, abandoned, and trash-strewn warehouse on a blighted street into a vibrant community mosque. Plaintiffs then endured years of bigotry and hate crime from those opposed to the mosque. Ultimately, the Zoning Board capitulated to the community’s anti-Muslim animus and denied the application. It did so even though it had previously granted indistinguishable variances to Christian churches. The Zoning Board violated both federal and state law to achieve its desired outcome.

Jersey Journal reports on the lawsuit.

4th Circuit En Banc Upholds Preliminary Injunction Against Trump's Second Travel Ban Executive Order

Today the U.S. 4th Circuit Court of Appeals sitting en banc upheld (with a minor exception) the nationwide preliminary injunction entered by a Maryland federal district court barring enforcement of a major provision of President Trump's second travel ban Executive Order.  By a 10-3 vote, in a series of opinions spanning 205 pages, the Court of Appeals in International Refugee Assistance Project v. Trump, (4th Cir., May 25, 2017), affirmed the award of a preliminary injunction against enforcement of Section 2(c) of the Executive Order which imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. The Court however-- in a step that has little practical significance-- limited the injunction to various cabinet officers and departments and their officers, agents and employees, but lifted the injunction against to the President himself.

The majority opinion, written by Chief Judge Gregory (joined in full by 6 other judges and in part by 2 more (with one judge joining only in the judgment), focused on the Establishment Clause.  The Court said in part:

The question for this Court, distilled to its essential form, is whether the Constitution ... remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.

Judge Keenan joined by Judge Thacker filed a concurring opinion indicating that they would also uphold the preliminary injunction because the President failed to make adequate finding as required under 8 U.S.C. § 1182(f) before he can exclude a group of aliens that entry of that group of aliens would be detrimental to the interests of the United States.

Judge Wynn filed a concurring opinion indicating that he would also find that the Executive Order exceeded the President's authority under the Immigration Act.  Judge Thacker also filed a concurring opinion, stating that he concurred even though he would not consider statements made by candidate Trump before he took the oath of office as relevant.

Judges Niemeyer, Shedd and Agee, each writing a dissenting opinion concurred in by the others. The opinions, among other things, objected to the consideration of campaign statements "to recast a later-issued executive order," and argued that plaintiffs lacked standing.

The Washington Post reporting on the decision notes:

All of the judges in the majority were placed on the court by Democratic presidents and the three dissenting judges ... were all nominated to the bench by Republican presidents.

UPDATE: Attorney General Jeff Sessions announced on Thursday that the government will seek review of the decision in the U.S. Supreme Court.

Suit Challenges School District's Anti-Islamophobia Program

Freedom of Conscience Defense Fund announced yesterday that it has filed a religious discrimination lawsuit in a California federal district court against the San Diego Unified School District.  The suit, filed on behalf of a group of parents, challenges an Anti-Islamophobia program instituted by the school district to combat bullying and harassment of Muslim students.  The lawsuit particularly objects to the school board's collaboration with CAIR, a group which plaintiffs say has ties to radical Islam.  The complaint alleges in part:

Under the guise of this anti-bullying program, Defendants have fallen in with [CAIR] to set up a subtle, discriminatory scheme that establishes Muslim students as the privileged religious group within the school community.  Consequently, students of other faiths are left on the outside looking in, vulnerable to religiously motivated bullying, while Muslim students enjoy an exclusive right to the School District’s benevolent protection.

Muslim Student Sues Claiming Grade Was Result of Religious Discrimination

NJ Advance Media reported yesterday on a religious discrimination lawsuit filed by a Union County College Muslim student.  Plaintiff Sahna ElBanna claims that her business professor, Toby Grodner, gave her an "F" in a course in which she earned A's on exams that count for 60% of the grade. The professor says ElBanna received F's on multimedia assignments that comprised the remaining 40% of her grade. ElBanna claims that Grodner made derogatory comments about Muslims in class-- using the terms "Muslim" and "terrorist" interchangeably, and questioning her about her religion.

Long Skirts, Title II vs. Title VII

In Jalal v. Lucille Roberts Health Clubs, Inc., (SD NY, May 22, 2017), a New York federal district court dismissed a suit brought by a Jewish woman against a health club which refused to allow her to wear a long skirt while using gym equipment.  In the suit, plaintiff Yosefa Jalal alleged that by refusing to allow her to dress as required by her religious beliefs, the health club violated the public accommodation provisions (Title II) of the 1964 Civil Rights Act. The court disagreed, saying in part:

Here, plaintiff fails to allege facts plausibly supporting a minimal inference of discriminatory motivation. Although plaintiff contends that she was treated differently than other Lucille Roberts members on the basis of her religion, the factual allegations only suggest that she was treated differently because she insisted on wearing an article of clothing that, according to defendant, was inappropriate gym attire.... Nowhere does the complaint allege that defendant selectively enforced its dress code against Jewish women.... There is no indication ... that claims grounded solely in disparate impact—and lacking any allegation of discriminatory intent—are cognizable under Title II.

Consumerist reports on the decision.

Meanwhile, JTA reported yesterday on a religious discrimination in employment lawsuit filed in New York state court.  Plaintiff Hadas Goldfarb, an Orthodox Jewish woman who was hired by New York Presbyterian Hospital as a paramedic, was dismissed when when she insisted on wearing a skirt instead of pants as required by the hospital's dress code.  Unlike the public accommodation section of the 1964 Civil Rights Act, the employment discrimination provisions (Title VII) require employers to reasonably accommodate an employee's religious exercise. [Thanks to Steven H. Sholk for the lead.]

Trump In Israel Calls For End To Sectarian Conflict In Middle East

During his trip to the Middle East, yesterday President Trump delivered an address (full text) at the Israel Museum in which he framed a call for a political settlement in religious terms.  The President said in part:

Today, gathered with friends, I call upon all people -- Jews, Christians, Muslims, and every faith, every tribe, every creed -- to draw inspiration from this ancient city, to set aside our sectarian differences, to overcome oppression and hatred, and to give all children the freedom and hope and dignity written into our souls. 

Earlier this week, I spoke at a very historic summit in Saudi Arabia.  I was hosted by King Salman -- a very wise man.  There, I urged our friends in the Muslim world to join us in creating stability, safety and security.  And I was deeply encouraged by the desire of many leaders to join us in cooperation toward these shared and vital goals.  

Conflict cannot continue forever.  The only question is when nations will decide that they have had enough -- enough bloodshed, enough killing.  That historic summit represents a new opportunity for people throughout the Middle East to overcome sectarian and religious divisions, to extinguish the fires of extremism, and to find common ground and shared responsibility in making the future of this region so much better than it is right now.

Priest Sex Abuse Suit Filed Against Guam Archdiocese

On Monday, a 49-year old man filed suit in a Guam federal district court against the Catholic Archdiocese of Agana seeking $5 million in damages for sexual abuse he suffered in a Guam church in 1982 when he was an altar boy.  The offending priest, Fr. John Niland, died in 2009.  The complaint (full text) in Charfauros v. Roman Catholic Archbishop of Agana, (D GU, filed 5/22/2017), alleges in part:

12. ... [D]isguising the scheme to have sexual access to young boys was the ritual of requiring altar boys to spend the night at the church rectory, ostensibly to facilitate preparation for the following morning church services.... These seemingly routine practices ... served the predatory priests with a steady supply of victims under the auspices and pretense of formal church protocol, which allowed the Church to continually operate a veritable harem of young boys who were readily available to pedophiles who utilized the stature of the church into deceiving the community to regard them as high-level officials.

13. The systematic and ongoing pattern of sexual abuse of young children was characteristic of an internal society within ... [the] Archdiocese ... whose norms were based on pedophilic conduct disguised by the rituals and pageantry of liturgical services ... which caused Catholic parishioners.to place the highest level of confidence and trust in the church and its clergy. This internal society of sexual corruption sustained itself through a conspiratorial arrangement between priests and higher officials in the Agana Archdiocese whereby they all understood and agreed to remain quiet about each others sexual abuse misconduct....

Pacific News Center reports on the lawsuit. As reported by Crux, last year Pope Francis in effect replaced Agana Archbishop Anthony Apuron after allegations that the Archbishop sexually abused altar boys in the 1960's and 1970's.

Church Awarded $1.35M For Loss Stemming From Overbroad Zoning Restriction

In Riverside Church v. City of  St.Michael, (D MN, May 22, 2017), a Minnesota federal district court awarded damages of $1,354,595 to a church which was prevented by city zoning ordinances from acquiring a vacant movie theater building and use it for worship services.  The court concluded that the church's free speech rights were infringed because the zoning ordinance, while addressing significant government interests relating to traffic control, was not narrowly tailored.  Ultimately the city amended its zoning ordinance to allow purchase of the theater building, but by then its purchase price had increased by $1.29 million, a price which the church could not afford to pay.  The court refused to award the church damages against the city for defamation. (See prior related posting.)

Texas Legislature Passes Conscience Protections For Adoption, Foster Care, Counseling Services

The Texas legislature yesterday gave final passage to HB 3859 (full text), a bill that prohibits any governmental agency from discriminating or taking adverse action against a child welfare service provider that refuses to provide adoption, foster care, counseling or other services that conflict with the agency's religious beliefs.  The bill, which now goes to the governor for signature, also protects agencies that place children with providers who will give the children a religious education. Where an agency refuses to serve a client, it must refer the client to, or to a listing of, other agencies that can serve them.  AP, reporting on the bill, says:

The private foster care and adoption organizations, which are paid by the state to place children with families, make up about 25 percent of the agencies working in Texas. Those groups say they face a threat of lawsuits for exercising their religious beliefs if they don’t get specific state legal protection.  Many Texas adoption agencies admit they don’t work with adoptive parents who are single, gay or non-Christian, and the bill could keep them from being sued.

[Thanks to Scott Mange for the lead.]

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.